Delhi District Court
State vs . Yaseen on 6 June, 2023
IN THE COURT OF MS AKANKSHA GARG, MM03, SE,
SAKET COURTS, NEW DELHI
State Vs. Yaseen
FIR No.92/2010
Police Station : H. N. Din
Under Section : 420/34 IPC
Date of institution :19.01.2012
Date of pronouncement :06.06.2023
JUDGEMENT
a) Cr. Cases number of the case 87594/2016
b) Date of commission of offence 28.05.2009
c) Name of the complainant Rajan Suri
(1) Mohd. Yaseen
S/o Mohd. Ilyas
R/o H.No.2609 Bara Dari Bali
Maran, Daryaganj, Delhi
Name, parentage and address of
d)
the accused (2) Mohd. Salim@ Babli
S/o Sh.Aswak
R/o H.No.1921, Kucha Galan
Daryaganj, New Delhi
e) Offence complained of Section 420/34 IPC
f) Plea of the accused Pleaded not guilty
Accused Mohd. Salim @ Babli
stands acquitted of the
offences punishable U/s 420/34
g) Final order
IPC and accused Mohd.
Yaseen stands convicted u/s
420/34 IPC
h) Date of final order 06.06.2023
State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.1/19
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1) Shorn of unnecessary details, the brief facts of the case are that between last week of April 2009 and on 28.05.2009 at M12, ground floor Jangpura Extn. New Delhi within the jurisdiction of PS H.N.Din, accused persons cheated the complainant i.e Rajan Suri by fradulently induing him to deliver his ANB Amro Bank credit card to them and thereafter, withdrawing Rs.54,214.76 from his account without his consent thereby causing wrongful loss to him and wrongful gain to themselves and committed an offence u/s 420/34 IPC.
ACCUSATION AGAINST THE ACCUSED
2) Vide order dated 30.11.2023 passed by this Court, a charge u/s 420/34 Indian penal Code, 1860(hereinafter IPC) was framed against accused persons to which they pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3) The prosecution in all examined 8 witnesses in order to prove its case against the accused persons. The testimony of the material witnesses has been discussed hereinafter:
(a)PW1 Rajan Suri has deposed that he was holding ANB Amro Bank credit card and he received a call from one number asking him for increasing the limit of credit card in the month of April 20092010.
Thereafter, he handed over his credit card to accused Yaseen after cuttin it into four pieces. After 45 days of this incident, he went to Ameria to visit his children. When he returned after 1520 days, he got a statement from ABN Amro Bank showing that his credit card has been used for online payment/purchase to the tune of Rs.54,000/ approximately. He called ABN Amro Bank but the bank stated that they can not help as the transaction has been made from his card. He went to PS H.N.Din and made a complaint State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.2/19 regarding the same. Police did not do anything on his complaint. He filed RTI and thereafter, police officials Sanjay Singh several times came to his hosue. Twice thrice, he came with 23 boys to show whether any of that boy was involved/had come to collect the card. He had also brought accused Yaseen at his place and after seeing him, he had identified that he was the one who came his residence to collect the card. Thereafter, on one day, police had come to his house with copyof one ID in the name of Rajan Suri on which fake address of Sarai Kale khan was written. Police had shown him ID and informed him that they have solved the case. No other proceedings was conducted in his presence. His complaint to police vide ExPW1/A. He had handed over the statement received by him from teh ABN Amro Bank showing the transaction. They copy of the same marked A. The copy of fake ID in his name which was shown by polie to him marked B.
(b)PW2 Ct. Vivek has deposed that on 03.05.2011, he was posted at PP Jangpur PS H.N.Din as constable. On that day, he was joined by SI Sanjay in the investigation of the present case. IO had seized documents of RBS and ICICI vide seizure memo ExPW2/A an dExPW2/B. IO had prepared documents vide ExPW2/C and ExPW2/D. He was asked some leading question by Ld. APP wherein he replied that his statement was recorded by SI Sanjay . He has joined the investigation of the presentcae four times. He had joined the investigation on 06.09.2022 when details from ICICI bank was received and these were total 15 papers. Seizure memo was prepared vide Ex:W2/A.
(e)PW3 Sh. Surender Kumar has deposed that he was working as Nodal officer at Bharti Airtel Ltd. 224 Okhla, PhaseIII, Delhi since 03.08.2015. At this stage, CDR of mobile number 9818102621 in the same of Rishu Aggarwal R/o H.No.2754 Street Rampura Sabji Mandi New Delhi was shown to the witness. After seeing the same, witness stated that the call State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.3/19 details of abovesaid mobile number was sent to ACP NFC vide ExPW3/A.
(f) PW3 Mr. Praveen Pandey has deposed that he had been deputed by Director Legal Vatsal Arya from ICICI Merchant Services Ltd. to appear before the court regarding the proving documents given by ICICI Merchant Services Pvt. Ltd. to appear before the court regarding the proving documents given by ICICI Merchant Services in respect of MID no. 50223080 and TID 43312581 to police in reply of notice dated 03.09.2011. His deputation letter Ex.PW3/A. At this stage, the documents containing the details of above said MID and TID was shown to the witness from judicial file. After seeing the same, witness stated that the documents were seemed to be handed over to the police by S. Parwez (the then Risk Manager) The reply Ex.PW3/B and the details were Ex.PW3/C,he was working in First Data India Pvt. Ltd.(ICICI Merchant Services Pvt. Ltd.) Since May 2015 and he had identified signature of S. Parwez over the documents Ex.PW3/B as per records available in his office. He had not seen personally Mr. S. Parwez signing any documents.
(f)PW4 Ct. Vijay Prakash has deposed that on 21.07.2010, he was posted at PS H.N.Dn as constable. He had joined the investigation of the presen tcase alongwith IO/SI Sanjay Singh. Accused Yaseen had been called by IO in PP Jangpura and he was interrogated by IO. Accused Yaseen had disclosed that two persons namely Numan and Salim had come on his shop situated at Laxmi Nagar. They had gone to house of Salim which was situated in Daryaganj. Salim was interrogated by IO. Disclosure statement of Mohd. Yasin and Mohd. Salim had been recorded by IO vide ExPW4/A and ExPW4.B.Accused Yaseen and Salim had been arrested by IO vide arrest memo ExPW4/C and ExPW4/D. Personal search of both accused persons had been conducted vide ExPW4/E & ExPW4/F.
(g)PW5 Ms. Sapna Gupta has deposed that she was working in Paharganj, Delhi. However, approximately, in the year 2009, she had worked in Darya State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.4/19 Ganj for around 34 months. There was office of Numan and Babli @ Saleem, which was in respect of whole sale of garments. There was swap machine in the said office. The atmosphere of said office was not good, therefore, she had left the said office. After around one year, her friend Reshu Aggarwal alongwith some police official came to her house. She was inquired by police and police had recorded his statement
(h) PW6 Subramanian is the Assistant VicePresident Operations has deposed that he had been authorized by Business Unit Head of Royal Bank of Scotland, DLF Cyber City Gurugram. As per record available with his office credit card bearing no.5415382300471844 and 5415382300525623 were issued in the name of Sh. Rajan Suri and one add on card bearing no.5415382300471869 was issued in the name of Ruchie Suri by Royal Bank of Scotland. He had identified signature of Sourabh Nagpal as he had worked with him and also seen him while signing. As per documents Ex PW1/D1, credit card bearing no.5415382300471844 was issued to Mr. Rajan Suri and it was got blocked as it was lost on 22.11.2002 and later on a replacement credit card bearing no.5415382300525623 was issued to him. As per page number 3 of document ExPW1/D1 on 04.05.2009 credit card bearing no.5415382300525623 was used with merchant namely MSK Enterprises Delhi for Rs.49,715/ for which acquiring bank was ICICI Bank and another transaction of Rs.4,500/ was made to Idea payments and acquiring bank was Citibank. Application form of Rajan Suri and credit card statement marked as mark A (colly running into 39 pages
(i)PW7 SI Sanjay has deposed that in the month of July 2010, he was posted at P. P. Jungpura, PS H.N. Din as SI. On 02.07.2010, the present case file was marked to him for further investigation and he received the case file from previous IO/SI Yogeshwar. During investigation, he had served a notice u/s 160 CrPC upon Mohd. Yaseen .During investigation, he also found that the said Mohd. Yaseen was the owner of MSK Enterprises, State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.5/19 Lalita Park, Laxmi Nagar, New Delhi as he had collected the details and documents from ICIC bank pertaining to the TID and MID number of the swapping machine. Seizure memo of said documents was prepared vide Ex PW2/C. The documents vide Ex PW7/C. He had also collected the detailed documents from RBS Bank which was previously known as ABN Amro Bank regarding credit card details of the complainant of the case namely Rajan Suri. Seizure memo regarding the same vide ExPW2/D. The documents of RBS Bank vide ExPW1/D2 and mark A (colly). He had also collected the ownership of mobile number 9818102621 which was found operational in the name of one Rishu Aggarwal vide document vide Ex PW3/A. Accused namely Yaseen joined the investigation of the case and during his interrogation, he produced one copy of the DL by the name of Rajan Suri having the address of Sarai Kale Khan, New Delhi stating that this copy of DL was submitted/produce by one Numan and his associates Salim @ Babli at the time of swapping of that credit card at his shop M.S.K Interprises at Lalita Park. The same was taken on record vide seizure memo Ex PW7/D. Copy of DL vide ExPW7/E bearing signature of accused Yaseen at point A. He had visited the place which was mentioned in the DL of Rajan Suri. He found that no such person in the name of Rajan Suri was residing there and he had recorded statement of two residents in this regard. On 21.07.2010, accused Mohd. Yaseen was arrested and his personal search was conducted vide memos vide ExPW4/C and PW4/F. Accused was interrogated and his disclosure statement was recorded vide memos Ex PW4/A. Thereafter, at the instance of accused Yaseen, accused Salim @ Babli was arrested from Daryaganj and thereafter personal search of accused Salim @ Babli was also conducted vide memos vide ExPW4/D and ExPW4/E. Accused Salim was interrogated and his disclosure statement was recorded vide memo vide ExPW4/B. Both the accused persons were medically get examined and they were lodged into lockup. On State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.6/19 next day, ie. 22.07.2010, both accused persons were produced before the court and their PC remand was obtained for one day. He had serious endeavour to search coaccused Numan and recovery of credit card in question but neither coaccused was searched nor any recovery of credit card was effected. He had also collected documents from RBS bank on 14.09.2011 vide seizure memo already ExPW2/B. The RBS bank were provided documents vide covering letter ExPW1/D1 & Ex PW1/D2. During the investigation, he had recorded the statement of witnesses u/s 161 CrPC and after completion of investigation, he prepared chargesheet against both accused persons for judicial verdict and filed the same.
(j)PW8 Inspector Yogeshwar Singh has deposed that on 03.05.2010, he was posted at PS H.N.Din as SI/ICPP Jangpura. On that day, the complaint ExPW1/A was marked to him which was earlier marked to ASI Subhash. He inquired the complainant Mr. Rajan Suri, thereafter, FIR no.92/2010 was got registered by preparing rukka over the said complaint. Rukka vide Ex PW8/A. He had collected CDR of mobile number 9818102621 through email and same was attached with case file vide Ex PW3/A. On 22.07.2010, he had served a notice u/s 91CrPC upon th Manager ICICI Bank requesting to provide details of owner of credit card holder using which the alleged amount was misappropriating. Notice was ExPW8/B. After examination of the abovesaid witnesses, PE was closed.
STATEMENT / DEFENCE OF THE ACCUSED
4) In his examination under Section 313 CrPC., the accused persons have denied the entire evidence put to them and stated that they had been falsesly implicated and opted not to lead DE. Hence DE was closed and matter was listed for final arguments.
ARGUMENTS State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.7/19
5) Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused persons Rashid, Irfan and Irshad and that they be convicted of offences under Section 420/34 IPC. Ld. APP has further contended that adverse inference has to be drawn against the accused persons since they had refused to participate in TIP.
6) On the other hand, it has been argued by the learned counsel for accused that accused persons are innocent as there is no evidence, which will prove guilt of accused persons to the hilt. It is aruged by Ld. Counsel for the accused persons that they have been falsely implicated in the present case as the record would reveal that the testimony of complainant Mr. Rajan Suri is unreliable and misleading. It is further argued by ld. Counsel that though the prosecution has established that the initial call was made by accused Reshu Aggarwal from her mobile number 9818102621 which was also mentioned in the FIR, however, the said Reshu Aggarwal was neither arrested nor made an accused in the present case.
7) It is further argued by the Ld. Defence counsel that no credit card in question has been recovered from thepossession of either of the accusedpersons and the identification of the accused in the court can not be relied upon as the IO did not get the TIP conducted during investigation. It is further argued that one suspect Numan has been let off by the IO and he was not made the accused.
8) Ld. Counsel further argued that accused Mohd. Yaseen has been made the scapegoat in the present case as one lady customer swiped her credit card on the swipe machine of the accused as she had purchased some garments from the shop of the accused. The accused even took the copy of the ID proof of the card holder as the lady has informed him that the card belonged to her brother. It is further argued by Ld. Counsel that even though the credit card in question was swiped at two places on 04.05.2019, one at the shop of the accused Mohd. Yaseen and second at Idea payment, however, the IO did State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.8/19 not investigate the question of payment at Idea payments and did not make them an accused. It is further argued by Ld. Defence counsel that PW4 Ct. Vijay Prakash, PW5 Sapna Gupta and PW7 SI Sanjay Singh did not support the case of the prosection and there are various contradictions in their testimonies. Lastly, it is argued by Ld counsel that there is an unexplained delay in registration of the FIR as the alleged incident occured on 04.05.2009, whereas the FIR came to be registered on 03.05.2010.
ANALYSIS AND FINDINGS
9) Since the present accused persons are being tried for offence u/s 420 IPC, it would be apposite to quickly recapitulate the law on the provision of Section 420 IPC which provides for purnishment for cheating and is reproduced below: Section 420 in The Indian Penal Code
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
10) Cheating is defined Under Section 415 IPC which is reproduced below: Section 415 in The Indian Penal Code
415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.9/19 concealment of facts is a deception within the meaning of this section.
11) Hence, to constitute the offence of cheating the following ingredients shall be fulfiled.
(i) They shall be deceit by the accused.
(ii) The inducement of the person who has been deceived.
(iii) The inducement so caused fraudulent/dishonest.
(iv) Pursuan to such inducement, the person cheated deliver some property or consents for its retention by some other person.
12) Having referred to the law now let us come to the facts of the present case.
Complainant Rajan Suri is the star witness of the prosecution and therefore his testimony is crucial to prove the case of the prosecution.
Evidence with respect to accused Mohd. Salim
13) So far as, the charge qua accused Mohd. Salim is concerned, complainant has failed to identify him as the complainant had never seen him before. The other evidence that is available against accused Mohd.Salim is the disclosure statement of coaccused Mohd. Yaseen and his own disclosure statement. Apart from the above, PW5 Spana Gupta has desposed that she used to work at the office of Numan and Salim @Babli as DATA entry operator. However, she had left the job as the atmonsphere of the said office was not good. After around one year, her friend Reshu Aggarwal who was also working at the same office came to her house alongwith the police for some inquiry and it was only then that she came to know about the present case. Hence, her testimony reveals that she has not deposed anything incriminating qua accused Salim. The fact that the atmonsphere of the office was not good is not enough to implicate the accused in the present case.
14) So far as the disclosure statement of coaccused is considered, same is hit by Section 25 of Indian Evidence Act and the same can not be read in State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.10/19 evidence unless some fact is discovered pursuant to the said disclosure. In the facts of the present case, there is no such distinct fact which can be said to have been discovered pursuant to the disclosure of both the accused persons and hence, the said statements can not be read in evidence. Apart from the above, there is no material on record with respect to accused Salim.
Appreciation of Evidence with respect to accused Mohd. Yaseen.
15) Broadly stated, the incriminating material that is available against accused Mohd. Yaseen is his identification by the complainant Rajan Suri, the statment of Sh. Subramaniam AVP Operations, Royal Bank of Scotland who has proved the fact that on the alleged date i.e 04.05.2009 the credit card bearing no.5415382300525623 was used with merchant namely MSK Enterprises(belonging to the accused) and a transaction of Rs.49715/ was made to the said merchant. He also proved ExPW1/B1 i.e the detailed transactions of card bearing no.5415382300525623.
16) In his statement u/s 313 CrPC accused has admitted the fact that the credit card swipe machine belonging to MSK Enterprises was under his control and possession and the firm MSK Enterprises was being run by him, however, his defence was that one customer namely Reshu Aggarwal had purchased some garments from his showroom and she swiped the alleged card on his machine. He alleged that he has also given the copy of the bill, the payment receipt to the customer. He further averred that to his defence, he had also taken the copy of the ID of the owner of the card from the said customer. He further stated that the original bill, payment receipt and the copy of the ID were handed over to the IO. However, record reveals that during the crossexamination of the IO a suggestion has been put by the defence counsel to the effect that the said ID card i.e the DL of the owner State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.11/19 of the credit card was not seized from the possession of the accused, rather the same was planted upon him. Hence, accused has taken two contradictory stands wherein at one hand in his statement u/s 313 CrPC he stated that he handed over the copy of the ID proof of the owner of the credit card to the IO during investigation and on the other hand during the crossexamination of the IO, it is stated that the said ID proof was planted upon him. Moreover, even if, it is believed that the accused had handed over the copy of the said ID proof to the IO, the same does not absolve him of his liability as the ID proof belonged to Rajan Suri, whereas as per the version of the accused the alleged transaction was made by one lady Reshu Aggarwal. Hence, it appears that accused authorized the transaction despite knowing the fact that the said lady namely Reshu Aggarwal was not the owner of the alleged credit card in question.
17)Be as it may, even if, the version of the accused is believed in totality, he has failed to prove the same as the bills in question for the alleged purchase have not been brought on record. It was incumbent upon the accused to prove the alleged defence taken by him and mere bald allegations and statements can not entitle the accused to take the benefit of creating the dent in the case of the prosecution.
18) Coming further to the arguments of Ld. Counsel that the case of the prosecution is weakened and fallen due to fact that there is an unexplained delay of more than one year in the registration of FIR. The alleged incident of fraudulent transaction occurred on 04.05.2009, whereas the FIR was registered on 03.05.2010. Hence, it is argued by the Defence counsel that the benefit of the said delay shall go to the prosecution. It is true that the delay in the registeration of FIR raises a plausible doubt in the case of the prosecution, however, the said delay cannot always prove fatal to the case State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.12/19 of the prosecution if the delay is sufficiently explained.
19) .In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393, the Supreme Court, emphasising the necessity of explaining the delay in lodging FIR, has held as follows:
"12... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained...."
20) In Satpal Singh v. State of Haryana, (2010) 8 SCC 714 the Supreme Court has observed:
"15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.13/19 in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety.
21) In Ravi vs Badrinarayan & Ors Hon'ble Supreme Court held that "20. It is wellsettled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.
The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."
State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.14/19
22) I have perused the record and it is true that the present FIR came to be registered one year after the alleged fraudulent transactions occurred. However, record reveals that the said delay cannot be attributed to the complainant as the complainant was vigilant enough to give a written complaint to the bank and SHO Nizamuddin which was dated 29.05.2009 and has been endorsed on 31.05.2009. It is also stated in the said complaint that he was in USA when the alleged transaction occurred and only returned on 28.05.2009 and made a complaint on the very next day i.e. 29.05.2009. During his examination in chief, the complainant also stated that his FIR was not registered by the police officials and no action was taken upon his complaint. Rather, he had to file an RTI, whereafter, his FIR was registered. Hence, the delay in lodging the said FIR is fully explained by the complainant and he had done his best to bring the criminal law in motion, however, for the reasons best known to the police officials, the then SHO concerned, the said FIR came to be registered only after a year. However, the benefit of sheer negligence and callous attitude of the police officials in registering the FIR can not be given to the accused. Thus, the argument of the Ld. Defence counsel does not hold merit in view of this court.
23) Coming to the argument of Ld. Defence counsel that no credit card has been recovered from the possession of the accused, hence, he be given benefit of doubt, in the opinion of this court, the said argument is devoid of reason as for establishing an offence u/s 420 IPC, the recovery is not a pre requisite if there is other sufficient material against the accused.
24) Ld. counsel for the accused has further argued that the identification by the complainant in the court cannot be believed as the IO had failed to conduct the TIP in the present case. I do not find merit in the said argument as the State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.15/19 identification during Test Identification Parade is merely a corroborative piece of evidence and it is not the substantive evidence. Rather, the substantive evidence is the identification in the court. TIP is conducted only to channelize the investigation and to refresh the memory of the victim.
25) In the matter of Sidhartha Vashisht Vs. State (NCT of Delhi) reported in (2010) 6 SCC 1, while dealing with the issue of identification of accused the Supreme Court observed as under:
"256. The law as it stands today is set out in the following decisions of this Court which are reproduced as hereinunder: Munshi Singh Gautam vs. State of M.P. (2005) 9 SCC 631, at page 643:
"16. As was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (See Santokh Singh vs. Izhar Hussain 1973 2 SCC
406.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses."
26) Malkhansing vs. State of M.P., (2003) 5 SCC 746 at 752 "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.16/19 considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigation agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter fro the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration."
(Emphasis supplied.)
27) It is true that the court should not readily believe the direct identification in the court in the absence of TIP, however, there is no rule that such identification in the court is a nullity in the absence of TIP. Rather, in such circumstances, it is incumbent upon the court to thoroughly sift through the other evidence and the circumstances under which the witness had the opportunity to see the accused. The duration of interaction between the witness and the accused, the amount of light available at the time of the incident, the proximity of the accused are all relevant factors in considering whethter the identification before teh court can be read in evidence in the absence of a previous TIP.
28) In the facts of the case present before me, the complainant had seen the accused for sufficient time as the accused had gone to the house complainant in the broad day light and asked him to hand over his credit State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.17/19 card, the complainant had cut his card in four pieces and then handed it over to the accused. Therefore, there was sufficient time and light enabling the complainant to identify the accused. Hence, the failure of the investigating agency to conduct TIP can not be said to be fatal to the case of the prosecution as the evidence of the complainant inspires the confidence of this court. Moreover, the testmony of the complainant would reveal that IO had brought 23 boys to his house and asked him if they had come to his house to collect the card to which he had refused. However, when IO particularly produced the present accused,namely, Mohd. Yaseen, he immediately identified him. Also, the fact that the alleged credit card was swiped at the shop of the accused, further lends credence to the identification by the complainant.
29) Coming to the arguments of Ld. Defence counsel that the IO did not investigate the owner of swipe machine where the second transaction was made at Idea payments on the same day. I do not find the said fact to enttitle the accused to the benefit of doubt particularly in view of the fact that he has been identified by the complainant. Hence, any lapses of the IO, if any, shall not give benefit to the accused if there is otherwise sufficient material on record finding him guilty. Further, Ld.counsel has failed to point out at the contradictions in the versions of the prosecution witnesses and while advancing arguments, he has generally stated that there are various contradictions in the testimony of PW4 Ct. Vijay Prakash, PW5 Sapna Gupta and PW7 SI Sanjay Singh. Such contractions, if any, are not material in the opinion of this court.
Conclusion
30) In view of the above, the necessary ingredients under Section 420 IPC are fulfilled with respect to accused Mohd. Yaseen and the prosecution has successfully established that accused Mohd Yaseen has fraudulently State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.18/19 induced the complainant Rajan Suri to deliver his credit card to him and by doing so he caused wrongful loss to the complainant as an amount of Rs.49,715/ was deducted from the account of the complainant. However, here is no sufficient material to convict accused Mohd. Salim. Hence, accused Mohd. Salim stands acquitted for offences u/s 420/34 IPC while accused Mohd. Yaseen stands convicted for offences u/s 420/34 IPC. Convict is directed to file his income affidavit and the Ld. APP for the State is directed to file the affidavit pertaining to the expenditure incurred by the State upon the prosecution.
Announced in open court Today on 06.06.2023
AKANKSHA Digitally signed by
AKANKSHA GARG
GARG Date: 2023.06.06 18:32:48
+0530
(AKANKSHA GARG)
METROPOLITAN MAGISTRATE03,
SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
State Vs. Mohd. Yaseen etc FIR No.92/2010 PSH. N. Din Page no.19/19