Delhi District Court
State vs . Vinay Malhotra on 5 February, 2011
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Vinay Malhotra
FIR No. 106/95
PS: Keshav Puram
U/s 379/408 IPC
Case ID No. 02401R0024561995
JUDGEMENT
A) Sl. No. of the case : 79/2
B) The date of commission : February 1995
of offence
C) The name of the complainant : Sh. Suresh Kumar
S/o Sh. Ram Vilash
r/o G37, Lawrence Road,
Delhi.
D) The name & address of accused : Vinay Malhotra
S/o Om Parkash
R/o A5/15, Sector 6,
Rohini, Delhi.
E) Offences complained of : U/s 379/408 IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 05.02.2011
Date of Institution: 09.12.2000
Judgment reserved on: 27.05.1995
Judgment announced on: 05.02.2011
FIR No. 106/95 Page No.1/10
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THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that the accused herein was employed with the complainant namely Sh. Suresh Kumar as Salesman in the firm M/s Aahar International (India) Private Limited in February 1995 and on 04.04.95, the accused was entrusted with two receipt books No. 7101 to 7150 and 6801 to 6850. The accused had dominion over the receipt books and issued receipts to the shop keepers and received money from them despite the fact that he was not authorised by complainant Sh. Suresh Kumar and thus, he committed criminal breach of trust with respect to that property and thereby committed an offence u/s 408 IPC.
2. The present case was registered on the basis of statement given by complainant namely Suresh Kumar on 27.04.95 before Duty Officer of PS Keshav Puram. On the basis of said statement, FIR in respect of offences u/s 379/408 IPC was registered and investigation was handed over to SI Ghamandi Lal who arrested the accused and seized receipt book no. 71017150 and also recorded the statements of witnesses.
3. After completion of investigation, charge sheet in respect of offences U/s 379/408 IPC was prepared and filed in the Court against accused and accordingly cognizance was taken by Ld. Predecessor.
4. Complete copies were supplied to accused as per compliance of section 207 Cr.PC and arguments on charge were heard. Ld Predecessor framed the charge for the offence U/s 408 IPC against accused vide order dated 28.01.1997.
5. In support of its case, the prosecution has examined seven witnesses in support of its case till 11.01.2011 namely PW1 Sh. Jitender Kumar, PW2 Suresh Kumar, PW3 Anil, PW4 Anil Kumar, PW5 Sh. K.L.Dua, PW6 Gokul Chand and PW7 ASI Baleshwar Bhagat. FIR No. 106/95 Page No.2/10 3
6. The statement of accused u/s 281 r/w Section 313 Cr.P.C has been recorded wherein all the incriminating evidence that has come on record, was put to the accused. The stand of the accused was of general denial. The accused stated in the statement that he is innocent and has been falsely implicated in this case. However, he opted not to lead any DE.
7. I have heard Ld. APP for the State and accused in person. I have also carefully perused the record.
8. Out of seven witnesses examined by the prosecution, PW1 Jitender Anand simply deposed that he has no knowledge about this case. He further deposed that accused herein was working as salesman in Aahar Company and about 2 ½ years ago from the date of recording of his statement in the Court i.e 03.02.98, the accused had collected some money from him against receipt on behalf of Aahar Company but he can not tell as to what was the said money. The said witness proved counter slips of the receipt as Ex.PW1/A and Ex.PW1/B. During cross examination, said witness deposed that accused had taken a sum of Rs. 200/ approximately from him against receipt but he did not remember as to whether receipt against payment of said amount was given to him or not. He further deposed that accused dealt with him only once on behalf of Aahar company.
PW2 namely Sh. Suresh Kumar is the complainant in this case. He entered into witness box and deposed that on 27.04.95, he had lodged the complaint in PS Keshav Puram. In the year 1994, he had employed accused herein as Salesman in his firm Aahar International. The accused was assigned the work of procuring the orders for the firm. He started remaining absent from duty for about one week prior to lodging of his complaint with the police due to which another person namely Raj Kumar was deputed on the job of accused. When said Sh. Raj Kumar visited the parties, it was revealed that accused has FIR No. 106/95 Page No.3/10 4 received money from various parties by issuing proper receipt in the name of his firm. On checking, two receipt books containing receipt no. 7101 to 7150 and 6801 to 6850 were found missing. The accused did not render any account for the amount received by him from various parties by issuing receipts from the said two receipt books. After registration of FIR, police prepared the siteplan at his instance. Thereafter, he had also accompanied the police for search of accused who was arrested from Britania Bus Stand and one receipt book containing receipts no. 7101 to 7150 was recovered from him. Said receipt book was seized vide seizure memo Ex.PW2/A. The said receipt book has been exhibited as PW2 in his statement.
During cross examination, said witness deposed that he did not remember the exact date of appointment of accused in his firm. He used to pay Rs. 2500/ per month as salary to the accused. The accused had collected around Rs. 8290/ from various parties by issuing the receipts out of the aforesaid two receipt books. At the time of arrest of the accused, his salesman was also present besides him and police party but he did not remember the name of said salesman. He also did not remember as to whether any public witness had signed the seizure memo or not. He denied the suggestion that he had withheld the salary of accused for two months or that accused remained absent from job due to non payment of salary for two months. He also denied the suggestion that accused had handed over the full amount so collected by him by issuing the aforesaid receipts, to him (complainant).
PW3 deposed that in the year 1995 he was having a shop of Kiryana. He used to procure the goods from the firm M/s Ahar International. He further deposed that on 07.04.95, the salesman of Ahar International i.e the accused herein visited his shop and collected Rs. 250/ from him and issued a receipt no. 7109. Carbon copy of the same is mark B. During cross examination, the said witness has deposed that accused also used to visit FIR No. 106/95 Page No.4/10 5 his store and collected the money previously also.
PW4 deposed that he runs a general store and on 26.04.95, salesman of Ahar International Company had visited his shop and received a sum of Rs. 200/ from him against receipt no. 7113. Photocopy of said receipt is Ex.PW4/A. This witness has not been cross examined by the accused despite grant of opportunity.
PW5 deposed that he was running a shop in the year 1995 during which year salesman of Ahar Company received a sum of Rs. 300/ from him vide receipt no. 7108. Carbon copy of the same is mark X. This witness also has not been cross examined by the accused.
PW6 Sh. Gokul Chand Aggarwal deposed that he was running a departmental store in the year 1995. During said year, one representative of Ahar International came to him and received a sum of Rs. 500/ from him vide receipt no. 7102. He can not produce the original of the said receipt as the same has already been destroyed. However, carbon copies of two receipts have been exhibited as Ex.PW6/A/1&2. He further deposed that he can not identify said salesman who had collected the amount from him due to lapse of time. He has also not been cross examined by the accused.
PW7 is the duty officer who has proved copy of FIR No. 106/95 as Ex. PW7/A and his endorsement Ex.PW7/B on the rukka.
9. In order to bring home the guilt of accused in respect of offence u/s 408 IPC, the prosecution was required to prove the following ingredients:
1) that the accused was employed as a clerk or servant under the employer/complainant;
2) that the accused was entrusted with any property or any dominion over such property in his capacity as servant by his employer ;
FIR No. 106/95 Page No.5/10 6
3) that the accused committed criminal breach of trust in respect of such property The expression "criminal breach of trust" has been defined in Section 405 IPC which provides that whenever any person who has been entrusted with any property or with any dominion over such property, dishonestly misappropriates or converts to his own use such property or dishonestly uses or dispose of such property in violation of any direction of law or of any legal contract expressed or implied or even in a situation when he willfully suffers any other person so to do then he is said to have committed criminal breach of trust.
The term "dishonest misappropriation of property" as defined in Section 403 IPC provides that whenever any person dishonestly misappropriates or converts to his own use any movable property then same is called dishonest misappropriation of property.
10. In order to convict a person on the charge of dishonest misappropriation of property, the prosecution is required to show:
a) that the property was of the complainant;
b) that the accused misappropriated the same or converted into his own use;
c) that he did so dishonestly (Reliance placed on AIR 1958 SC 56)
11. Now it has to be considered as to whether the prosecution has been able to satisfy the aforesaid ingredients qua the accused herein so as to attract Section 408 IPC or any other penal provision under the law or not.
12. As already discussed above, PW4 to PW6 have not deposed anything against the accused herein. There is no incriminating evidence coming on record during the testimonies of said three witnesses which may establish the guilt of accused at all as none of the said witnesses deposed that it was the accused who had visited their respective shops/departmental stores at any point of time on behalf of the complainant or that the FIR No. 106/95 Page No.6/10 7 accused had received/collected any payment from them on behalf of said company. The said witnesses have also not deposed that the receipts exhibited during their testimonies before the Court, were issued by the accused herein. None of the said witnesses identified the accused before the Court to be the person who had collected any payment from them on behalf of complainant company. Rather, PW6 Sh. Gokul Chand Aggarwal categorically deposed during his chief examination itself that he can not identify the salesman who had collected the payment from him on behalf of Ahar International in the year 1995. None of the said witnesses dared to depose before the Court that they can identify the signatures of the person appearing on receipts exhibited by them during their respective statements.
13. It is well settled law that mere exhibition of a document does not dispense with its proof and the document is still required to be proved in accordance with law of evidence. Still, if any authority is required then reference with advantage can be made to the judgments reported in AIR 1971/SC/865 and 1995 RLR 286. In view of the said proposition of law, receipt Ex.PW4/A or receipt mark X and receipts Ex.PW6/A/1&2 can not be said to have been proved in accordance with rule of evidence and consequently, can not be considered against the accused.
14. For the similar reason stated herein above, the counter slip of the receipt Ex.PW1/A and Ex.PW1/B which have been exhibited in the statement of PW1 as well as the receipt which has been marked B in the testimony of PW3 also can not be relied upon. This is more so when the said witnesses failed to produce the originals thereof before the Court. PW3 categorically deposed during chief examination itself that original receipt of mark B is not available with him. No permission to lead secondary evidence was sought by prosecution in respect of receipt mark B or other receipts referred to above during the stage of trial. FIR No. 106/95 Page No.7/10 8
15. The role of investigating agency also does not seem to be proper. It was the duty of IO concerned to seize the original receipts from various customers of the complainant allegedly issued by accused during the stage of investigation so as to ensure their production before the Court during trial. There is no material on record which can even show that IO issued any notice u/s 91 Cr.P.C to any such customer asking him/her to produce any such document to him during investigation. In other words, sincere efforts on the part of investigating agency to collect the original receipts which could have been important piece of evidence in this case, are lacking due to which the foundation of the entire case has become weak. In this backdrop, non examination of IO in this case is fatal to the case of prosecution for the simple reason that IO was the Director of entire story who prepared the charge sheet on the basis of facts and evidence which came to light during investigation conducted by him and accused was not afforded any opportunity to elicit the truth during cross examination of IO.
16. As already discussed above, the complainant namely Suresh Kumar alleged in the complaint lodged with the police that the factum regarding criminal breach of trust caused by accused, came to his knowledge when he employed another person namely Raj Kumar against the job of accused who was absent from duty for the last one week prior to lodging of his complaint with the police. Very interestingly, IO did not examined said Sh. Raj Kumar during entire investigation and also did not cite him as witness in the list of witnesses. It was essential for the prosecution to produce said Sh. Raj Kumar during trial in order to complete the entire chain of events leading to the guilt of accused as it was Sh. Raj Kumar who, according to prosecution case, allegedly visited various parties/customers of complainant Suresh Kumar and came to know that payments have been received by this accused against receipts issued out of two receipt books containing receipts no. 71017150 and 68106850. no FIR No. 106/95 Page No.8/10 9 explanation whatsoever has been furnished on behalf of prosecution for non production of such material witness during trial. Same gives rise to suspicion about the prosecution story benefit of which is liable to go to the accused.
17. Not only this, the complainant i.e PW2 namely Suresh Kumar deposed during cross examination that at the time of arrest of accused herein, his salesman was also present at the place of arrest. Again, presence of said salesman has not been shown at all by the investigating agency. No such person has been joined during investigation. Said salesman has also not been produced before the Court during trial.
18. The complainant has also failed to produce the relevant records showing that Sh. Raj Kumar was ever employed by him in place of accused for the same job or that he (Raj Kumar) had actually visited any of his customers for collection of payment. In this regard, the testimonies of PW1 and PW3 to PW6 also assumes significance as none of the said witnesses deposed before the Court that any other salesman of M/s Aahar International had visited him for collection of payment after the relevant period during which the accused herein allegedly received the payment from them. This fact also creates doubt in the prosecution story.
19. It goes without saying that prosecution is required to establish the guilt of accused beyond reasonable doubt and the entire burden of proof is upon the prosecution. The accused is supposed to remain silent till the conclusion of trial and benefit of doubt always goes to the accused. It has been held by Hon'ble Apex Court in the matter titled as "State of Karnataka Vs. Satish" reported in 1999 (1) JCC (SC) 97.
20. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove the complete chain of events which may conclusively establish the guilt FIR No. 106/95 Page No.9/10 10 of accused beyond reasonable doubt. Consequently, I hereby acquit accused namely Vinay Malhotra for the offence U/s 408 IPC. His B/B are cancelled. Documents, if any, be returned after cancellation of endorsement and after proper verification and identification.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN (VIDYA PRAKASH)
COURT TODAY ON 05.02.2011 (ACMM1/NW/RC/DELHI)
FIR No. 106/95 Page No.10/10