Delhi District Court
Sh. Lalit Kumar vs State on 9 August, 2018
IN THE COURT OF SH. JAGDISH KUMAR,
ADDITIONAL SESSIONS JUDGE -02(WEST) , DELHI.
Criminal Appeal No. 97/17
Sh. Lalit Kumar
S/o Sh. Karnail Singh
R/o H. No. B-3/151
12-1/2, Yards
Raghubir Nagar
Delhi ............ Appellant
Versus
State
Govt. of NCT of Delhi. .......... Respondent
Date of Institution : 29.03.2017
Date of Assignment : 30.03.2017
Date of Arguments : 09.08.2018
Date of Judgment : 09.08.2018
JUDGMENT:
1. The present appeal has been preferred under section 374 (3) Cr.P.C. against the judgment dt. 21.12.2016 and order on sentence dt. 28.02.2017 (hereinafter called 'impugned judgment and order') as passed by ld. MM-02( West )/Delhi, (hereinafter called the Ld. Trial Court), whereby the Ld. Trial Court has convicted the appellant for the offence punishable under section 379 of IPC. Subsequently, the appellant has been sentenced to simple imprisonment for One year and six months for offence U/s 379 IPC, for a period of one year for offence U/s 424 IPC and for a period of one year and six months for offence U/s 174A IPC.
C.A. No. 97/17 Lalit Kumar Vs State Page 1 of 72. Facts of the case are that the case of the prosecution is that on 15.06.2009 the complainant has got registered the FIR on the allegations that on 05.03.2009 when complainant had gone on morning walk he found the brief case was stolen from his house. In this regard the complainant stated that he has already lodged a complaint with police station Rajouri Garden but subsequently he came to know that his ATM card has been used on 29.03.2009 for four times at ATM in Vikaspuri. Subsequently during investigation FIR was registered accordingly. During investigation the accused was identified by the complainant when CD record of the ATM was shown to him. Accused has not joined the investigation and he was declared PO after compliance of due process. Charge sheet has been filed before the Ld. Trial Court. The Ld. Trial Court after framing charge and after examining prosecution witnesses has convicted the appellant / accused for the alleged offence U/s 379/424/174A IPC and sentenced him.
3. Feeling aggrieved against the aforesaid impugned judgment and order, the present appeal has been preferred by the appellant on the grounds that Ld. Trial Court has not appreciated the facts and evidence on record correctly which resulted in miscarriage of justice.
4. It is alleged in the appeal that the Ld. Trial Court has acted upon the statement of complainant who is not a trustworthy witness. It is submitted that the appellant has been falsely implicated as he was driver with the appellant C.A. No. 97/17 Lalit Kumar Vs State Page 2 of 7 and his salary was pending which was not paid by the complainant.
5. Ld. Counsel for appellant has argued on the same lines as has been asserted in the appeal but Ld. Counsel for appellant submitted that he is conceding to the conviction U/s 174A IPC but submitting that sentence passed by the Ld. Trial Court for the offence U/s 174A IPC is very hard which should be reduced.
6. On the other hand, it is argued on behalf of State by Ld. Addl. PP for State that the Ld. Trial Court has passed reasoned order which need no interference. It is submitted by Ld. Addl. PP for State that so far as the submissions being made by the Ld. Counsel for appellant for the sentence U/s 174A IPC is concerned that is also appropriate in the given circumstances of the case. Prayer has been made accordingly for dismissal of the appeal.
7. I have heard Ld. Counsel for appellant as well as Addl.
APP for State and given my thoughtful consideration to the submissions as made by the them. I also considered the record, evidence and submissions of the Ld. Counsel for appellant and Ld. Addl. P. P. for State. The charge has been framed against accused U/s 379/424 and 174 A IPC. To prove its case the prosecution has examined 8 witnesses including the complainant. The complainant is the main and most important witness for the prosecution. I have gone through the testimony of PW1 he has got recorded A Non Cognizable C.A. No. 97/17 Lalit Kumar Vs State Page 3 of 7 Report on 23.03.2009, stating therein that on 05.03.2009 at about 8:30 when he was on walk his passport, ATM card, passbook and cheque book of IDBI Bank and to cheque books and two pass books of SBI, Cheque book of Punjab National Bank, Identity card of Mr. Om Prakash Malhotra and Mrs. Prem Malhotra, diary, one statement account, some unsigned cheques of different banks, two blank cheques without amount and sign were fallen and got misplaced somewhere.
8. But on perusal of complaint dated 15.05.2009 (Ex.
PW1/A) he has changed his version and stated that his brief case was stolen from his home. There is a lot of contradiction regarding the happening of facts. While in NCR (Non Cognizable Report) he has stated that his documents as mentioned in the NCR were lost when he was on walk but in Ex. PW1/A he stated that his brief case containing these documents as mentioned in the NCR (Non Cognizable Report) were stolen from his house. This contradiction goes into the root of the case. Particularly, in view of the fact that he has got encashed a cheque bearing no. 559919 through appellant / accused mentioning in the cheque as issued in favour of self. The said cheque is Ex. PW1/B.
9. Moreover, on perusal of file no document has been recovered from the appellant during the investigation. There is one fact which is more alarming in the present case is that present FIR was registered on 15.06.2009 after a gap of about 3 months. But there is no explanation for registration of FIR at delayed stage.
C.A. No. 97/17 Lalit Kumar Vs State Page 4 of 710. The only connecting evidence in the present case is the photographs and CDR which has been purportedly produced by the bank official PW2 Rajesh, Deputy Manager to prove a fact that appellant / accused was withdrawing an amount from the ATM. On perusal of photographs though the appellant is being shown in the ATM on 29.03.2009 but since the photographs have been generated from the hard disk and there is no certificate U/s 65B of Indian Evidence Act to prove these photographs.
11. Though the appellant has not took any objection at the time of exhibition of these documents on record. But if no objection has been taken by the appellant before the Ld. Trial Court regarding exhibition of these documents then it does not mean that documents per se are admissible. The document have to fulfill the requirement how it has to proved. Section 65 B of Indian Evidence Act categorically prescribe that a document being generated from any electronic device has to be accompanied with certificate regarding it genuineness or not being tempered with. If not supported with certificate then the document cannot be construed as proved as prescribed under the Indian Evidence Act.
12. Moreover, the allegations are there that the appellant has withdrawn Rs. 14,400/- on 29.03.2009. But the photographs are showing only with respect to withdrawal of Rs. 1000/- only. If for the sake of argument it is admitted to be correct that the appellant has withdrawn a sum of Rs. 1000/- or done other three transactions on 29.03.2009 after using C.A. No. 97/17 Lalit Kumar Vs State Page 5 of 7 the ATM card of the complainant. But a document has come on record Ex. PW1/B i.e. Cheque bearing no. 559919 dated 21.02.2009 which has been encashed by the appellant. The cheque has been issued as of self and the complainant has signed on the back of the cheque. It means that the complainant has authorized the appellant to withdraw the amount of Rs. 65,000/- vide document Ex. PW1/B. Similarly, the probability cannot be ruled out that the appellant could have handed over his ATM to the appellant for withdrawal after disclosing his PIN Number of the ATM. So, the Ld. Trial Court has not considered all these evidence available on record. Ld. Trial court has acted upon the testimony of PW1 without considering the material contradictions in his statement and without considering the fact that the bank official PW2 has been unable to prove the CD, photographs and statement of account on record because certificate U/s 65 B of Indian Evidence Act is not there on record being proved. So the prosecution is unable to prove allegations against the appellant for the alleged offence U/s 379/424 IPC.
13. So far as the conviction of the appellant is concerned for alleged offence U/s 174A IPC is concerned. The Ld. Counsel for appellant has fairly conceded that he is not arguing on the merit of conviction of appellant for the offence U/s 174A but praying for reduction of sentence being awarded as it is very hard in the given circumstances of the case where the evidence has not been brought on record by the prosecution to prove the substantial offences against the appellant. I have considered the statement of Ld. Counsel for appellant and C.A. No. 97/17 Lalit Kumar Vs State Page 6 of 7 perused the record. There is sufficient evidence on record on which Ld. Trial Court has convicted the appellant for the alleged offence U/s 174A IPC. But regarding the sentence I think Ld. Trial Court has sentenced him very hard and Ld. Trial Court has not considered the evidence that the prosecution has not proved the substantial offences against the appellant. So, in the given circumstances I reduce the sentence to the period already undergone by the appellant during the period of investigation which is about 2 months.
14. In view of the discussion above the appeal is accepted partly. The impugned judgment qua conviction and sentencing of the appellant for the offence U/s 379 & 424 IPC is set aside. However, the conviction of the appellant for the offence U/s 174A IPC is upheld, however, the sentence is reduced to the period already undergone by the appellant. The appeal is disposed of accordingly.
15. The appellant is directed to furnish a bail bond of Rs. 10,000/- along with one surety of the same amount for the period of 6 months U/s 437A Cr.PC. Trial Court record be sent back along with copy of order.
File be consigned to record room.
Digitally signed by JAGDISH JAGDISH KUMAR ANNOUNCED IN THE OPEN KUMAR Date: 2018.08.10 16:54:38 +0530 COURT ON THIS 09.08.2018 (JAGDISH KUMAR) ADDI. SESSIONS JUDGE-02 (WEST):DELHI C.A. No. 97/17 Lalit Kumar Vs State Page 7 of 7