Delhi District Court
State vs . Sayeed Mohd. Maqsood on 25 June, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, MM-08 (SE)
SAKET COURTS COMPLEX
STATE VS. SAYEED MOHD. MAQSOOD
FIR NO. : 618/2001
P.S. : Lajpat Nagar
U.S. : 120B/406/420 IPC
Unique ID No. 02403R0055162001
Serial No. 1244/5/11
Date of institution of case : 19.12.2001
Date on which case reserved : 25.06.2012
for judgment
Date of judgment : 25.06.2012
JUDGEMENT U/s. 350 Cr.P.C.:
a) Date of offence : During the month of January to February 2002
b) Offence complained of : U/s. 120B/406/420 IPC
e) Names of accused, their : 1. Sayeed Mohd. Masood
parentage & residence S/o Sh. S.M. Masood
R/o 43, Maleer Tower, Cafe, Prade Mumbai.
(Discharged vide order dated 28.03.05 by
Ld. Sessions Court).
2. Abhijeet
R/o 15/80, Civil Lines, Kanpur, U.P.
(Discharged vide order dated 23.03.05 by
Ld. Sessions Court).
3. Saroj Kumar Jha
S/o S. N. Jha
R/o B-1/144, Nand Nagri, Delhi.
4. Rakesh Singh
S/o Amrit Singh
R/o 502, East End Apartments, New Ashok
FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 1/12
Nagar, Delhi.
5. Baseer Ahmad Sheikh
S/o Sh. Yasin Mohd. (P.O.)
6. Raeesa Basheer Sheikh
W/o Basheer Ahmad Sheikh
Both R/o Flat No. 201, B-Block, Alkhabar B.
Building Millat Nagar, Andheri (West), Mumbai.
(P.O.)
7. Zahida Q. Khan
D/o Sh. Qamar Khan
R/o Rahimabai Compound, Kapad Bazaar, Road
Opp. Khoja Jamat Khana, R. No. 19, Mahim (W),
Mumbai. (P.O.)
8. Mohd. Zabir Hussain
S/o Sh. Abdul Latif
R/o Shop No. 1, Sahabji Santakruj Lane, Marine
Line, Mumbai. (P.O.)
d) Plea of accused persons : Not Guilty
e) Final order : Acquitted
Counsels for the parties:-
For the State:- Sh. Mayank Tripathi
For the Accused Persons:- Sh. D.K. Hira
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1.In brief, the case of Prosecution is that complainant Ms. Geetanjali Sharma filed a complaint against M/s. Accord Tours and Travels Pvt. Ltd and its Directors alleging that the accused persons in collusion with each other , with a view to cause wrongful loss to the public at large, devised a unique modus operandi for cheating and playing fraud and got published an advertisement in Hindustan Times and other newspapers mentioning therein that M/s Accord Tours and Travels Private Ltd. Urgently required vehicles on 3 years contract FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 2/12 basis on monthly payment promising high income in return and also mentioned that they could arrange finance for the new vehicles. The complainant induced by such advertisement approached the accused persons, who painted rosy pictures regarding their business and persuaded the complainant to avail financial facility for purchase of car and give it on hire for a period of 3 years on the agreed terms and conditions . The complainant accordingly executed Agreement dated 10.02.2000 and paid a margin money of Rs.1,24,241 besides other charges and agreed to receive Rs.8649/-pm for a period of 36 months of the contract. It was also assured that accused persons would be responsible for proper maintenance and security of the vehicle. When the complainant did not receive the payment of hire, she contacted the accused persons but every time they postponed the issue on some pretext or the other. When she approached the accused in Nov.2000, she was shocked to know that his vehicle has been stolen and from other persons , she came to know of the same thing who had also invested in the company. Complainant tried to contact the accused but they were not available and from newspaper reporting, she came to know that accused were indulged in fraudulent activities, who used to sell the vehicles on forged documents through out the country. One of the car was recovered in one of the case pertaining to Sh. A.S. Jaswal, which was sold 2/3 times by the accused and their associates and therefore all accused persons criminally conspired to do an illegal act of cheating and misappropriation by fraudulently or dishonestly inducing the complainants and thereby committed offence punishable U/s. 420/406/120B IPC. Accused persons were arrested being involved in non bailable offences, but later on they were released on bail by the court order.
2. After completion of investigation, charge sheet was filed against the FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 3/12 accused persons. Cognizance of the offence was taken by court and accused persons were summoned to face the trial for the offences allegedly committed by them. During trial accused Raeesa Bashir,Zahida Khan, Mohd. Tabu Hussain including Bashir Sheikh absconded and they were declared Proclaimed Offender. Charges U/s.420/406/120B IPC were framed against accused Rakesh Singh on 16.01.2002, accused Saroj Kumar Jha on 25.06.2012 and against accused Abhijeet and Sayyad Mohammad on 05.10.2004 to which they individually pleaded not guilty and claimed trial. However vide order dated 23.03.05 and 28.03.05, accused Abhijeet Narayan and Sayyad Mohd. Were discharged by the Sessions Court.
3. In order to substantiate its version, Prosecution filed the list of as many as Nine witnesses including Complainant Ms. Geetanjali Sharma
4. PW1 HC Rajpal, Duty Officer, proved the copy of FIR Ex. PW1/A and his endorsement on rukka vide Ex. PW1/B, bearing his signatures at points A.
5. PW2 Ct. Yatinder deposed that on 20.10.01, he joined the investigation of the present case with ASI Major Singh. On that day, accused Rakesh Singh was arrested in his presence vide memo Ex. PW1/A, bearing his signatures at point A. His further examination-in-chief was deferred for want of his statement recorded U/s 161 CrPC and it could not be concluded throughout the trial.
6. PW3 Smt. Gitanjali Sharma deposed that in the month of January, she read an advertisement in Hindustan Times and some other newspapers, FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 4/12 published by M/s. Accord Tours Pvt. Ltd. for requirement of vehicle for three years on contract basis and monthly payment and monetary benefits. She also read that if desired by the investors, they could arrange for finance for purchase of new vehicles. She personally met accused Masood Mohd, Abhijeet, Saroj Jha and Rakesh, who briefed her about the scheme. She further deposed that she could identify the accused Abhijeet and Sayyad Masood ( Since discharged) and to Mohd. Bashir ( Since P.O.) if shown to her but she identified accused Rakesh, and Saroj. On briefing she was satisfied with whatever accused persons informed about the scheme and she agreed to avail the finance facility for purchase of Maruti Zen LX and to give the same to the company on hire for 36 months on certain terms and conditions and an agreement of hire was executed between them. Further examination-in-chief was deferred for want of original agreement and certain other relevant documents. But her remaining examination-in-chief remained deferred and could not be concluded as this witness remained untraceable.
7. PW4 Sh. A.S. Jaswal deposed that in December 1999, he came across an advertisement in the newspaper regarding hiring of car on rental basis by Accord Tours & Travels and visited its office, where accused Abhijeet met and briefed about the scheme. He showed his interest in the scheme and opted to offer his two Maruti Zen Cars bearing Registration No. DL4CH8258 and DL2CN1376. He was informed that he would be paid Rs. 4,400/- per car on monthly basis and that company would pay the expenses of driver and fuel but he would have to pay maintenance charges of Rs. 20,000/- per car for three years and accordingly he paid Rs. 40,000/- in cash said cars. Accused Abhijeet further informed that first payment towards the rental amount would be given after 60 days. Later on he was handed over 3 post dated cheques of Rs 8,800/-
FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 5/12 each but same got dishonoured on presentment. On this, he went to the office of accused, where accused Abhijeet informed that due to some problem, said cheques were dishonoured and assured him that he would be paid the amount in cash and after one week Rs. 8,800/- was paid in cash and cheques were taken back. He further deposed that he was handed over three fresh post dated cheques drawn on HDFC Bank, which also on presentation dishonoured and it continued for 6 months. Thereafter he put his grievance before the MD of company Bashir Ahmad , to whom he apprised that he wanted to discontinue the contract due to irregular payment. He asked him to collect cash from office directly.
8. He further deposed that in July, he was paid money on due date but afterwards no payment was made to him. In August, he again talked to Bashir Ahmad about discontinuing the scheme due to irregular payment but Bashir Ahmad told him to serve one month advance notice for revocation of agreement. In August, 2000, he gave revocation notice to the company and after one month he went to the office of company to take back his vehicles. However, Bashir Ahmad sought 15 days time to return the vehicles. He noticed some other persons had also visited the office to take back their vehicles, on which he felt something wrong. On 20 September 2000, Bashir Ahmed informed him that one of his vehicles bearing no. DL4CH8258 had been stolen and second vehicle would be returned only after 30th September, 2000. In the first week of October, 2000, Sh. Bashir Ahmad handed over his vehicle bearing no. DL2CN1376 to him. He asked Bashir Ahmad to return his second vehicle, on which he kept on seeking time and never showed any FIR regarding theft of his vehicle. Ultimately his second car was not returned and no money in lieu of it was paid. Thereafter he approached to EOW and gave a written complaint. In the end of FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 6/12 November, 2000, Bashir Ahmad informed that his car had been recovered by the police and was parked at PS Sola Road, Ahmadabad. On this he talked to SHO PS Sola Road, Ahmadabad, who informed that the vehicle was there in the PS. Therafter he got said vehicle released on superdari from Ahmadabad Court and brought it back to Delhi. He demanded his payment from Bashir Ahmed but he denied.
9. He pointed out towards accused Saroj and stated that he also used to work in said company and had seen him 2-3 times in the office. He further deposed that on 20th December, 2000, he had gone to the office and found some other persons had gathered there. Police also reached there , to whm he informed that Chairman of company Sh. Masood might be available at Charmwood Village, Surajkund. He again approached Bashir Ahmed over telephone for payment of dues then he asked him not to disturb as his vehicles were restored to him. On being asked whether accused Saroj and Rakesh had informed him about the scheme, to which he replied in negative. He was cross examined by the Ld. Prosecutor after seeking the permission of court. During cross examination he denied that when he visited the office of company for the first time, he had met Mohd. Masood, Rakesh Singh, Saroj Jha, who had informed him regarding the scheme and induced and lured him to join the scheme. He also denied that he had stated so in his statement recorded by the police. He also denied that he was deposing falsely.
10. During cross examination by Defence Counsel he deposed that police had made inquiries from him only once in the month of December, 2009. He admitted that Police had recorded his statement and he had signed the same. He also admitted that one agreement was got executed between them FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 7/12 but he never handed over the copy of said agreement to police. He also admitted that he was given receipt regarding the payment of Rs. 40,000/- by the company. He also admitted that he had not given any statement of account to Police regarding balance payment. He also admitted that he did not initiate any criminal prosecution under section 138 NI Act for dishonoured cheques. He also admitted that Saroj Jha had not entered into any conversation with him regarding the scheme. He also admitted that he had not handed over the copy of notice served by him upon the company. He also admitted that he had not given in writing to police that he had received both of his vehicles. He denied the suggestion that he was deposing falsely.
11. PW5 SI Bhopal Singh (under suspension) deposed that further investigation of the case was marked to him in January, 2002. On 20.02.02, he arrested accused Saroj Jha vide memo Ex. PW5/A and supplementary charge sheet was prepared. He also got arrested co-accused Sayyad Mohd. Masood and Abhijeet Narayan vide memos Ex. PW5/B and C. He also recorded the statement of witnesses and investigated the matter at ROC Office, Mumbai and collected records Mark A(running into 1-36 pages) of M/s. Tours and Travel Pvt Ltd. On perusal of said record, he found Bashir Sheikh, Zahid Khan, Mohd. Zuber Hassan as Directors of said company and during whose tenure offence of cheating was committed and they were the beneficiary of funds of the company. He also proved the photographs Mark B1 to B-3 of leading news papers showing the advertisement dated 14.10.03, 15.10.03 in Mumbai and Delhi. He further deposed that he made his best efforts to trace the accused, but no clue was found. Subsequently, process U/s. 82/83 CrPC were initiated and they were declared as P.Os. Vide order 15.10.03 and 05.11.03. He recorded the statement of witnesses and prepared supplementary challan and filed it in the FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 8/12 court. He also identified the accused persons present in the court.
12. During cross examination by Ld. Defence Counsel, he deposed that he arrested the accused on 20.02.2002 and arrest memo was prepared, but he did not remember the witness cited in the said case. He admitted that he never examined K.S. Jaswal in the pending cases as he was already examined by the previous IO. He admitted that after getting the record from ROC office Bombay, he was sure that accused Saroj Jha was not having any status in the said company. He deposed that he procured the documents from the office of Sub-Registrar only after the arrest of Sayyed Mohd. perhaps in the month of July, 2003. He did not interrogate or made any inquiry from any witness with regard to the role of accused Saroj Jha in said case and also did not file any documents on record against accused Saroj Jha. He denied that he was deposing falsely being a prosecution witness and got accused Saroj Jha falsely implicated. He admitted that he was aware that accused was involved in some other cases and accused was arrested in different cases on different dates.
13. PW6 SI Major Singh deposed that on 17.10.01, investigation of the present case was entrusted to him. He made efforts to search the accused persons namely Saeed Mohd., Masood Bashir, Ahmad Sheikh, Abhijeet and Saroj. On 20.10.01, he sought permission from the Court to interrogate accused Rakesh. After interrogation, accused Rakesh was arrested vide memo Ex. PW1/A, bearing his signatures at point B and he also recorded the statement of witnesses.
14. PW7 HC Narender Singh deposed that on 20.09.03, he along with SI Bhopal Singh went to Paitala House Court, where accused Abhijeet Narayan FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 9/12 was interrogated with the permission of Court. He was arrested and his personal search was also conducted, who disclosed that he was working with Accord Tour and Travels.
15. PW8 HC Krishan Pal deposed that on 30.06.03, he along with IO SI Bhopal Singh went to Patiala House Court. IO formally arrested the accused Sayeed Mohd. Masood vide memo Ex. PW5/B, bearing his signatures at point B and his personal search was conducted vide Ex. PW8/A, bearing his signatures at points B and A respectively.
16. Thereafter, case was listed for recording of testimonies of remaining Prosecution Evidence. Complainant was partly examined in chief. She was summoned but process sent to complainant received back unserved. Time and again summons were sent but there was consistent report to the effect that she was untraceable and her present whereabouts are not known. She was directed to be served even through IO, but she again remained unserved. Thereafter vide order dated 08.02.11, Ld. Predecessor of court closed the Prosecution Evidence and listed the matter for recording the statement of accused persons U/s313 CrPC. But court observed that nothing incriminating against accused had come on record in the absence of testimony of complainant and testimonies of remaining witnesses were of no avail being formal in nature. Even public witness Sh. A. K. Jaswal did not state anything against present accused persons which could connect them with the alleged offence. Hence recording of statement of accused persons U/s. 313 Cr.PC was dispensed with.
17. During the course of final arguments, Ld. Defence Counsel FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 10/12 submitted that Prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Complainant of present case is untraceable and public witness Sh. A.S. Jaisawal has not stated anything incriminating against the accused persons. On the other hand, Ld. APP has submitted that testimony of PW4 can not be discarded completely and can be used to corroborate with other reliable evidence which have come on record.
18. The court has heard the arguments of both sides and also perused the entire record including the testimonies of witnesses and detailed report regarding service of summons upon the complainant. In the present case, only part examination in chief of complainant was recorded. Further examination in chief was deferred for want of original agreement and certain other documents but the same could not be completed as complainant became untraceable. The object of examination-in-chief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the witness but if a witness after being partly examining in chief or even after being examining in chief does not appear to subject him to cross-examination his evidence becomes valueless and can not be looked into. Reference may be had to in case of Gopal Sarvan Vs. Satya Narayan, AIR 1988 SC 1141.
19. Even public witness Sh. A.S. Jaswal has not stated anything incriminating against the accused persons. He was declared hostile and cross- examined by Ld. Public Prosecutor at length, but nothing incriminating came against the accused on record. During the course of recording his examination in chief, Ld. Prosecutor specifically asked if accused Rakesh and Saroj Jha had informed him regarding the scheme, to which he replied in negative. In his cross-examination by defence counsel, he has admitted that accused Saroj Jha FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 11/12 had not entered into any conversation with him in respect of the scheme. His testimony is silent about the specific role of accused Rakesh. His testimony mainly discloses the name accused Bashir Ahmed. There is no other circumstantial evidence on record to connect the accused persons with the offence in question.
20. In view of foregoing discussions, the court has no hesitation in holding that Prosecution has failed to prove its case against present accused beyond reasonable doubt. Hence accused Saroj Kumar Jha and Rakesh Singh are acquitted from the charge framed U/s. 120B/406/420 IPC.
21. File be consigned to Record Room after due compliance with liberty to revive the case as and when accused persons, who have declared P.Os. Shall be apprehended.
Announced in the Open (MONA TARDI KERKETTA)
Court Today i.e. on 25.06.12 Metropolitan Magistrate-08 (SE)
Saket Courts, New Delhi
FIR No. 618/01 PS-Lajpat Nagar State Vs. Sayeed Masood & Ors. 12/12