Delhi District Court
State vs Satbir Singh Choudhary on 12 February, 2024
IN THE COURT OF MS. SAMIKSHA GUPTA
Addl. Chief Metropolitan Magistrate
South West District; Dwarka Courts: New Delhi
Date of Institution : 25.03.2019
Date of reserving judgment : 20.01.2024
Date of Judgment : 12.02.2024
In the matter of :
State Vs. Satbir Singh Choudhary
FIR No. 17/2018
PS : Sector-23 Dwarka
U/s: 407/411 IPC
1. Regn. No. of Case : 8217/2019
2. CNR No. of Case : DLSW02-014051-2019
3. Name of complainant : Kuldeep Kochhar
4. Name of accused : Satbir Singh Choudhary
S/o Sh. Krishan Chand
R/o Village Cheher Khurd, Distt.
Bhiwani, Haryana
5. Offence charged : 407/411 IPC
6. Plea of accused : Not guilty.
7. Final Order : Acquitted
State represented by : Sh. Rohit Grewal, Ld. APP.
Accused representd by : Sh. Kaartik Kumar, Advocate.
Digitally signed
by Samiksha
Samiksha Gupta
State Vs. Satbir Singh Choudhary Gupta Date:
2024.02.12
FIR No. 17/2018, PS Sector 23 Dwarka 16:45:47 -0200
Page No.1 of 14
JUDGMENT
1. It is the case of prosecution that on 19.11.2017, accused Satbir Singh Choudhary was entrusted with Wagon R car bearing Regn. No. DL-9CAC-9961 in his possession as a carrier on behalf of Aggarwal World Wide Packers & Movers. He thereafter misappropriated the same and committed criminal breach of trust. Further, the said car was also recovered at his instance in Sector 23 Gurgaon. Thus, prosecution has set up a case under Section 407/411 IPC against accused.
2. On the basis of investigation carried out by police, charge sheet was filed in Court and copy of the same was supplied to him.
3. On the basis of charge sheet, charge for committing offences punishable under Section 407/411 IPC was framed against accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined four witnesses, who are as under:
Sr.No Name Nature of Evidence
1. Kuldeep Kochhar Complainant
2. Rajneesh Kumar Superdar of vehicle No. DL-
9CAC-9961
3. SI Kamlesh Kumar Witness to registration of
State Vs. Satbir Singh Choudhary Digitally signed
FIR No. 17/2018, PS Sector 23 Dwarka Samiksha by Samiksha
Gupta
Page No.2 of 14
Gupta Date: 2024.02.12
16:45:59 -0200
FIR
4. SI P. R. Hudda Investigating Officer
5. Prosecution has relied upon the following documents:
S. Exhibits Documents No. 1. Ex.PW-1/A Complaint
2. Ex.P1 (Colly) Photographs of Wagon R car.
3. Ex.PW-2/A Application for release of vehicle No. DL-
9CAC-9961
4. Ex.PW-2/B Superdarinama of vehicle DL-9CAC-9961
5. Ex.PW-3/A Endorsement
6. Ex.PW-4/A Arrest memo of accused
7. Ex.PW-4/B Seizure memo of screen shot regarding Whatsapp chats
8. Ex.PW-4/C Personal search memo of accused
9. Ex.PW-4/D Disclosure statement of accused
10. Ex.PW-4/E Seizure memo of car and car key.
11. Ex.A-1 (colly) Copy of FIR with certificate U/s 65 B of Indian Evidence Act
12. Ex.A2 Statement of Ct. Ram Kishan
13. Ex.A3 MHC (M) with Register No.19
6. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, wherein he claimed that on the date of incident he was not driving the vehicle on behalf of Aggarwal Worldwide Packers & Movers and he has been falsely implicated in the present case.
Digitally signed by SamikshaState Vs. Satbir Singh Choudhary Samiksha Gupta FIR No. 17/2018, PS Sector 23 Dwarka Gupta Date:
2024.02.12 16:46:05 -0200 Page No.3 of 14
7. Final arguments heard. Record perused.
8. To establish guilt of accused under Section 407 IPC, the prosecution is required to prove, beyond reasonable doubt, the following components:-
(i) Accused was entrusted with property or with dominion over property as a carrier/wharfinger/ warehouse keeper;
(ii) Accused has dishonestly misappropriated that property; or
(iii) Accused has dishonestly converted that property to his own use; or
(iv) Accused has dishonestly disposed off or used that property in violation of the mode in which trust is to be discharged;
To establish guilt of accused under Section 411 IPC, the prosecution is required to prove, beyond reasonable doubt, the following components:-
(i) The property must have been stolen.
(ii) The accused must have received, retained,
bought or sold the stolen property.
(iii) The accused must have known or had reason
to believe that the property was stolen.
Digitally signed by SamikshaState Vs. Satbir Singh Choudhary Samiksha Gupta FIR No. 17/2018, PS Sector 23 Dwarka Gupta Date:
2024.02.12 16:46:13 -0200 Page No.4 of 14
9. The evidence of prosecution witnesses in the present case has to be examined against this legal backdrop.
(i) PW-1 Captain Kuldeep Kochhar has deposed that he had to transfer his mother's car to Mumbai from Delhi. On his friend's advice, he used the services of movemycar.com. The concerned person called him to arrange transportation of aforesaid car. Since he was in Delhi for only two days, he asked his brother in law Rajesh Khanna to handover the vehicle to the transporter. This witness shortlisted services of M/s Aggarwal Worldwide Packers & Movers for a price of Rs.7,000/- to transport the vehicle to Mumbai. After delivery of car was taken from brother in law Rajesh, this witness called the transporter Satbir (accused). Accused demanded Rs.22,700/- instead of Rs.7,000/- as agreed. When break-up of the aforesaid amount was asked, accused stated that Rs.12,000/- was required for transit insurance. On asking him to send picture of the car loaded in the truck, picture of some other car was sent. Due to suspicion, further inquiry was done regarding the company but nothing was found. Meanwhile, accused continued to ask complainant for demurrage charges as penalty. Accused refused to handover the car and present FIR was lodged. Even after three months, car could not be recovered and accused asked for Rs.40,000/- as final settlement but bank account number given by him was incorrect. Subsequently, accused was apprehended and car was recovered in damaged state. He identified the car from State Vs. Satbir Singh Choudhary Digitally signed FIR No. 17/2018, PS Sector 23 Dwarka Samiksha by Samiksha Gupta Gupta Date: 2024.02.12 Page No.5 of 14 16:46:24 -0200 its photographs.
During cross examination, he admitted that he had never met the accused. He also could not state with certainty whether accused is the same person with whom he used to talk on phone. He stated that he was told that driver had come from transport company to pick up the car but he did not see him personally picking up the car. Car was handed over to the driver by sister of this witness. He could not state if accused was merely driver cum loader of the said transport company. He denied the suggestion that accused was illiterate and unable to comprehend the Whatsapp chats. He stated that SHO had called the owner of transport company Mr. Sahu but later said that he could not call if he was told by SHO that Mr. Sahu was the owner of the transport company. He denied the suggestion that at the time of handing over the vehicle to driver of transport company, insurance policy was not given to the driver. He denied the suggestion that not providing insurance copy and non payment of demurrage charges at warehouse, vehicle could not be delivered at the destination. He denied the suggestion that police has exonerated the actual accused in the present case and the present accused has been falsely implicated.
(ii) PW-2 Rajneesh Kumar has deposed that he was authorised to get vehicle No. DL-9C-AC-9961 released on superdari which was registered in the name of Smt. Basant Kochar. The said vehicle was released on superdari vide Court State Vs. Satbir Singh Choudhary Digitally signed FIR No. 17/2018, PS Sector 23 Dwarka Samiksha by Samiksha Gupta Page No.6 of 14 Gupta Date: 2024.02.12 16:46:31 -0200 order dated 17.03.2018.
During cross examination, he stated that he did not have any personal knowledge of the case and also was not the registered owner of the vehicle.
(iii) PW-3 SI Kamlesh Kumar has deposed that he received complaint Ex.PW-1/A on 21.12.2017 for registration of FIR by post. He made the endorsement and got the FIR registered. Investigation was subsequently marked to SI P R Hudda.
He was not cross examined despite opportunity.
(iv) PW-4 SI P. R. Hudda has deposed that he was assigned investigation of the present case on 16.10.2018. ownership of mobile phone number of accused was obtained. Raid was conducted in Bhiwani on 13.03.2018 and accused was arrested. Seizure memo of screen shots sent by complainant regarding Whatsapp chats with accused was prepared. Further investigation was done. Car Wagon R bearing No. DL-9C-AC- 9961 of complainant was recovered along with keys at the instance of accused from Sector 23 Gurgaon. Same was seized and deposited in maalkhana. Statements of witnesses were recorded. Investigation was completed and charge sheet was filed. He correctly identified the accused present in Court and the Wagon R car from its photographs.
During cross examination, he deposed that State Vs. Satbir Singh Choudhary Digitally signed FIR No. 17/2018, PS Sector 23 Dwarka Samiksha by Samiksha Gupta Gupta Date: 2024.02.12 Page No.7 of 14 16:46:37 -0200 complainant did not provide the mobile number which he had saved in the name of Chaudhary Aggarwal. He stated that mobile number of accused was provided by complainant in his complaint. He did not conduct any separate investigation to see whether number of accused as mentioned in main complaint matched the mobile number saved as Chaudhary Aggarwal as reflected in the Whatsapp chat provided by complainant. He did not trace the IMEI number of mobile phone of accused as provided by complainant. He did not get verified the bank account number and IFSC code as shown in the Whatsapp screenshots provided by complainant. He could not recall if complainant had provided any documentary proof regarding payments made to accused. He did not get verified the name or registration number of the movers & packers company. He could not recall whether DD entries regarding conducting raid at Bhiwani were placed on record. He did not get DD entries entered in the local police station by the local police from where the accused was arrested. No witness to arrest memo was made although villagers and family of accused were present at that time. Site plan of recovery of car was not prepared. No inquiry was done regarding the said plot. Keys of the Wagon-R car were recovered from the dashboard and its tyres were flat. He did not verify the signature of transport operator on the consignment slips produced by the complainant against pick-up of the car. He did not enquire as to who had picked up the car. He did not enquire about the mode of payment of Rs.22,700/- as per the bill.
State Vs. Satbir Singh Choudhary Digitally signed
FIR No. 17/2018, PS Sector 23 Dwarka Samiksha by Samiksha
Gupta
Page No.8 of 14
Gupta Date: 2024.02.12
16:46:55 -0200
He could not state whether the said amount was recovered from the accused. He denied the suggestion that accused has been falsely implicated.
10. It is trite law that the burden lies on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
11. Charge under Section 407 IPC -
To prove the charge under Section 407 IPC against the accused, it was imperative for the prosecution to first prove the fact of entrustment of Wagon R car no. DL 9CAC 9961 to the accused, in his capacity as a carrier.
(i) PW1 Kuldeep Kochhar has deposed that car in question was handed over by his brother in law Sh. Rajesh, after which he got in touch with the transporter, the accused in question. He has not clarified as to how did he communicate with the accused, when accused demanded Rs.22,700/- instead of Rs.7000/- as agreed upon. Prosecution has relied upon screenshots of messages in which this amount has been sought from the complainant. These documents are not admissible in law Digitally signed State Vs. Satbir Singh Choudhary by Samiksha FIR No. 17/2018, PS Sector 23 Dwarka Samiksha Gupta Gupta Date:
2024.02.12 Page No.9 of 1416:47:11 -0200 as IO has not bothered to file certificate under Section 65B of Indian Evidence Act. Even otherwise, perusal of screenshots shows that name of some Chaudhary Aggarwal has been mentioned. IO has not bothered to verify the number from which these messages were sent to the complainant. He has not bothered to verify whether such number belonged to the accused. He has not even tried to conduct any investigation independent of what the complainant told him.
At this stage, it is pertinent to mention that complainant has admitted in his cross examination that he had never met the accused in person, except during his evidence in Court. He also could not depose if accused was the same person with whom he used to talk on phone. He also stated that some driver had come to pick up the car although he couldn't say if car was handed over to the accused. He further stated that he could not say if his brother in law, who had actually handed over the car to the driver, would be able to identify the driver.
(ii) It has come on record that one Sahu was the owner of the transport company. However, IO has not bothered to interrogate him in order to verify the true facts.
(iii) Photocopies of some documents viz.
Consignment Note, Car Condition Paper etc (Mark A) have been placed on record. Since prosecution has not examined the maker of these documents nor did the IO collect the originals, the said Digitally signed State Vs. Satbir Singh Choudhary by Samiksha FIR No. 17/2018, PS Sector 23 Dwarka Samiksha Gupta Gupta Date:
2024.02.12 Page No.10 of 1416:47:21 -0200 documents cannot be relied on. However, in all such documents, signature of some person in the column of 'Signature of Transport Operator' is there. It is apparent from the record that signature of accused is visibly different from the signature of Mark A. In this respect, IO was required to conduct proper investigation. However, IO has simply stated that he did not verify the the signature of transport operator on the consignment slip.
(iv) IO has deposed that he obtained ownership of mobile phone number of accused. However, there is not even a single document in the nature of CDR/CAF etc to show that IO conducted any such investigation. It is interesting to note that IO did not collect the mobile number, saved in the name of Chaudhary Aggarwal, by the complainant. The said mobile number is an extremely crucial piece of evidence to link the present accused with the offence as charged. However, IO simply absolved himself of this responsibility by stating that complainant did not provide him the said number. It has further come on record that complainant mentioned mobile number of accused in his complaint. IO did not bother to check if that number of accused is the same as the one with which complainant was chatting on whatsapp in respect of the transaction in question. IO also did not bother to verify the account number and IFSC code given by him to the complainant to see if it was the accused actually who was trying to seek more Digitally signed State Vs. Satbir Singh Choudhary by Samiksha FIR No. 17/2018, PS Sector 23 Dwarka Samiksha Gupta Gupta Date:2024.02.12 Page No.11 of 14
16:47:33 -0200 payment from complainant dishonestly.
(v) In such a scenario, prosecution has miserably failed to prove even the fact of entrustment of the car to accused, in his capacity as a carrier. It has also not been proved whether the amount of Rs.22,700/- was recovered from the accused. Thus, the fact of dishonest conversion also stands not proved. However, since the primary condition of entrustment has not been proved, the charge of S.407 IPC cannot be sustained against the accused.
Charge under Section 411 IPC -
(i) Absence of independent witnesses during recovery proceedings Evidently, no public witness to the recovery of the car has been either cited in the list of witnesses or examined by the prosecution. As per the charge-sheet, vehicle was recovered at the instance of accused. It has not come in the evidence of IO SI P R Hudda if he had made any effort to join any public witness at the recovery of car. No explanation has been furnished by the IO for not having joined any public witness to the apprehension of accused. From a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer.
It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the Digitally signed by Samiksha State Vs. Satbir Singh Choudhary Samiksha Gupta FIR No. 17/2018, PS Sector 23 Dwarka Gupta Date:
2024.02.12 Page No.12 of 1416:47:42 -0200 investigation by police. Section 100 (4) of the Cr.P.C also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on the judgment in Pawan Kumar Vs The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses generally keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another Vs State of Gujarat, AIR State Vs Krishna 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are State Vs. Satbir Singh Choudhary Digitally signed FIR No. 17/2018, PS Sector 23 Dwarka Samiksha by Samiksha Gupta Page No.13 of 14 Gupta Date: 2024.02.12 16:47:49 -0200 other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
(ii) Lack of proper investigation by IO IO has stated that the car in question was recovered along with its keys at the instance of accused from Sector 23 Gurgaon. IO has not clearly explained as to which particular area in Sector 23 was the car recovered. Vehicle in question was not recovered in presence of complainant. IO has not bothered to even prepare the recovery site plan. He did not bother to investigate since how long the car was parked at the recovery site or the CDR of accused to show that he is infact connected to the offence.
11. In view of the aforesaid loopholes and inconsistencies in the version of prosecution, the charge under Sections 407/411 IPC remain unproved against the accused. Accordingly, accused Satbir is acquitted for offences punishable under Section 407/411 IPC. Digitally signed by Samiksha Pronounced in open Court Samiksha Gupta on 12th day of February, 2024 Gupta Date:
2024.02.12 16:48:14 -0200 SAMIKSHA GUPTA Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi
12.02.2024 State Vs. Satbir Singh Choudhary FIR No. 17/2018, PS Sector 23 Dwarka Page No.14 of 14