Delhi District Court
State vs Wilson Savio Jose Daniel on 27 February, 2013
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 87 of 2002
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511 IPC
IN THE MATTER OF
STATE
VS
WILSON SAVIO JOSE DANIEL
S/o Mr. Jose Daniel
R/o 4, Nilambor Cooperative Society,
Siddhartha Nagar, Santa Kruj East, Mumbai55
Date of institution:04.08.2003
Date of reserving Judgement/Order:27.02.2013
Date of Pronouncement of Judgement/Order:27.02.2013
Brief statement of reasons for such decision :
1.It is the case of the prosecution that on 17.04.2002 at Canadian High Commission, Chanakaya Puri, the accused submitted false and fabricated documents alongwith his visitor visa application before the Canadian High Commission for FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 1 of 10 procuring visa but he was caught while his documents were scrutinized by the aforesaid Embassy, the accused hence attempted to cheat aforesaid Embassy.
2. After investigations, charge sheet in the matter was filed. Charge for the offences U/s 420/471/511 IPC was settled against the accused on 03.03.2005 to which accused pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined only 7 witnesses out of the total 10 witnesses cited in the list of witnesses.
(i) The prosecution has examined HC Dilbagh Singh as PW 1. He deposed that on 18.04.2002, he received rukka Mark X at about 4.35 PM through Ct. Jai Bhagwan which was sent by SI Bijay Kumar. On the basis of rukka, he recorded formal FIR U/s 420/471 IPC. He proved the same on record as Ex. PW 1/A.
(ii) Mr. G.R. Tanawade, Superintendent, RPO Mumbai has been examined as PW 2. He deposed that he was working with RPO Mumbai since 1979, he produced complete original record of passport number A0210882 issued in the name of Sh. Wilson Savio Jose Daniel alongwith its report. He deposed that said passport was genuine and issued from their office. He stated that he had seen the letter dated 14.05.2002 available in the court file sent from their office with the signature of the then RPO Mumbai. He deposed that he could identify signature's of the then RPO in his official capacity. He identified the signatures of the then RPO at point A on the letter dated 14.05.2002 EX. PW 2/A.
(iii) The prosecution has examined Mr. C.R. Jambhale, Retired RPO, FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 2 of 10 Panaji as PW 3. He deposed that on 05.12.2002, he was posted at RPO, Panaji as Regional Passport Officer and on that day, he had sent a letter to SI Bijay Kumar PS Chanakaya Puri with regard to the confirmation of the passport issued to Mila Coutinho and Niegel Socorro Coutinh. He produced the complete original record of the said persons. The passport were issued by their office to them and both were found genuine.
He proved the letter as EX. PW 3/A bearing his signatures at point A.
(iv) Mr. B.P. Mishra, Deputy Government Examiner of Questioned Document's from Central Forensic Institute at Guwahati has been examined as PW
4. He deposed that he joined the office of the GEQD Calcutta as Central Intelligence Officer, Grade1. On receipt of letter alongwith documents by Memo No. 583/SO/ADCP/NDD dated 13.02.2003 received in their office on 17.02.2003. This case was alloted to him for examination and opinion. He deposed that after receiving the document's, the documents were stamped and marked with their office seal bearing no. DXC 74/2003. He examined questioned documents mark Q1 to Q6 with standard documents S1 to S20 which were in 24 sheets. He gave his opinion vide Ex. PW 4/A bearing his signature at point A. His opinion was bearing no. DXC74/2003 dated 11.03.2003. The questioned documents were examined by him as well as by Sh. S.C. Gupta, the then Deputy GEQD. He also came to the same conclusion. He identified his signatures at Ex. PW 4/A at point B.
(v) The prosecution has examined Mr. Mohan Lal Chandi Ramani as PW
5. He deposed that he does not remember the details of the FDR, which was sent for verification but it was sent from PS Chanakaya Puri, Delhi. He could not remember the exact date when it was received and examined by him as it was long time. He wanted to refresh his memory by going through the Judicial File.
FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 3 of 10
He further deposed that on 22.04.2002, he was posted as Branch Manager in State Bank of India at Borivli (West) Mumbai and SI Bijay Kumar from PS Chanakaya Puri produced one FDR Ex. PW 5/B in the name of Mr. Wilson Savio Jose Daniel and inquired from him about the genuineness of the same. On which he gave his reply and the same was Ex. PW 5/A bearing his signatures at point A. He deposed that as per Ex. PW 5/A, the said FDR was not issued by their Branch.
In his cross examination by Ld. Defence Counsel for accused, he deposed that he had given his reply Ex. PW 5/A to SI Bijay Kumar in a sealed envelope. He had sealed the same after SI Bijay Kumar read over the same. He further deposed that he was saying the fact that the FDR was not issued from their branch after seeing the particulars mentioned on the FDR. After going through the file, witness stated that it was correct that the envelope in which he had given his report was not annexed in the file.
He denied the suggestion that he was deposing falsely. He further denied the suggestion that he had given his report at the instance of SI Bijay Kumar.
(vi) The prosecution has examined Mr. Dattatraya Hiruji Kamble as PW 5 inadvertently instead of PW 6. He deposed that on 22.04.2002, he was working as Manager at Andheri West Branch, Mumbai, Canara Bank and on the said date, he gave his report Ex. PW 5/A in respect of verification of FDR bearing no. 31152/26 dated 21.06.1999 of Rs. 3,00,000/ Ex. PW 5/B. As per his report, the said FDR was not issued from their bank and the same was a fake document.
In his cross examination by Ld. Defence Counsel for accused, he admitted that on 21.06.1999, he was not posted at Branch Andheri West, Mumbai, Canara Bank. He further admitted that he has no knowledge about the present case. He admitted that police officials have not recorded his statement and that he had not joined investigation in the present case in Delhi. He denied the suggestion that he was deposing FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 4 of 10 falsely or that he has prepared his report Ex. PW 5/A without verifying the record of their bank. He admitted that the letter which he received from the IO of the present case was not lying in the judicial file.
(vii) The prosecution has examined HC Jai Bhagwan as PW 7. He deposed (as recorded) that on 18.04.2002, he alongwith SI Bijay Kumar were on patrolling duty at Canada High Commission. On information received from the Canada High Commission SI Bijay Kumar and himself, went to Canada High Commission. On reaching the gate of Canada High Commission, they met one person namely Mr. A. Milic who handed over the accused Wilson alongwith one complaint and some documents to IO SI Bijay Kumar. He deposed that after formal interrogation, the IO prepared rukka and handed over the same to him for registration of FIR. After the registration of FIR, he went back to spot of incident and handed over the original rukka and copy of the FIR to IO SI Bijay Kumar. He deposed that thereafter, accused was arrested vide memo Ex. PW7/A bearing his signature at point A, accused was personally searched, the discloser statement was Ex. PW7/B bearing his signature at point A. Thereafter, he alongwith SI Bijay Kumar and the accused went to P.S. He further deposed that on the next day accused Wilson was taken on PC and he alongwith SI Bijay Kumar went to Bombay for verification of the documents and to search for the agent however, he could not remember the address where they have gone for investigation. The agent however, could not be traced and therefore, they returned back after two days. He deposed that the specimen's (from S1 to S20) Ex. PW7/C collectively of the accused were taken in his presence and he has signed the same at point A on each page. He further deposed that the said specimen's were seized vide seizure memo Ex. PW7/D bearing his signature at point A. He correctly identified the accused present in the court.
The cross examination of this witness was deferred at the request of FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 5 of 10 defence Counsel, however, subsequently despite opportunities, he could not appear for cross examination.
4. No other PW was examined by the prosecution and the PE was closed.
5. Statement of accused U/s 313 Cr. PC was recorded wherein all incriminating evidence coming against him was put to him. He denied that on 17/04/2002 at Canadian High Commission Chanakya puri, he attempted to cheat the said embassy by submitting false and fabricated documents alongwith the visa application for procuring visa and used the forged documents as genuine. He stated that he does not know that PW1 HC Dilbagh Singh proved carbon copy of FIR Ex. PW1/A and the endorsement Ex. PW1/B and PW2 GR Tananawade, Superintendent RPO Mumbai proved the letter dated 14/05/2002 Ex. PW2/A. He stated that he does not know that PW3 C.R. Jambhale, Retired RPO Panaji proved the letter Ex. PW3/A and PW4 BP Mishra deputy GEQD proved the opinion on Ex. PW4/A and also identified signatures at Ex. PW4/A at point B. He further stated that he does not know that PW5 Mohan Lal Chandi Ramani proved his reply Ex.PW5/A and the FDR Ex. PW5/B and PW6 (wrongly written as PW5) Mr. Dattatraya Hriuji Kamble proved the report Ex.PW5/A in respect of verification of FDR bearing 31152/26 dated 21/06/1999 of Rs. 3,00,000/ Ex. PW5/B. In reply to the question put to him that PW7 HC Jai Bhagwan proved the arrest memo Ex. PW7/A, disclosure statement Ex. PW7/B the specimen handwriting S1 to S20 as Ex. PW7/C and the seizure memo of the specimen as Ex. PW7/D, he stated that he is innocent and he has been falsely implicated, he was falsely arrested, his disclosure statement was falsely taken on the pretext of signing on blank papers. He further stated that he was falsely implicated in the present case as he has never tried to misrepresent or mislead. He stated that witnesses who have deposed against him were interested witnesses. He declined to lead DE and DE hence was closed. Thereafter the matter was FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 6 of 10 posted for Final arguments.
6. I have heard final arguments on behalf of parties and perused the record. Before appreciating the evidence coming up on record, I find it relevant to refer here the provisions for the offences, which the accused has been charged with. Section 420 IPC Provides:
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. Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]: Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]. Section 511 IPC Provides:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, an in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 7 of 10 such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
7. The present case was registered on a complaint filed by Mr. A. Milic on 18.04.2002 therein alleging that the accused Wilson Savio Jose Daniel applied for a Canadian visitor visa alongwith his wife, Mila Coutinho and son, Niegel Coutinho, however, in support of his application, the accused attached fixed deposit slips from 'State Bank of India' and 'Canara Bank' and on examination by Embassy officials, it was revealed that said deposits were counterfeit documents. On these allegations, the present FIR was registered against accused.
8. To prove its case against accused, it was incumbent upon the prosecution to prove that the accused Wilson Savio Jose Daniel has infact forged the said FDRs and also produced the same before the complainant Mr. A. Milic in an attempt to cheat the Embassy.
9. The prosecution however has failed to examine the complainant despite ample opportunities for the same being given. Process to the complainant was repeatedly received back with the report filed on behalf of Mr. Don Gautier, CBSA Liaison Officer that complainant Mr. Milic has departed India and no representative of Canadian High Commission will attend. In the absence of the complainant, hence, the original complaint filed on record remains unproved. The factum of presentation of alleged forged document remains unproved. In the absence of the complainant, there is no linking evidence produced on record to connect the accused with the alleged offence's. It was the complainant only who could have proved on record that it was the accused who presented FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 8 of 10 the alleged document before him.
10. As such whatever information has been given by the complainant is not admissible as evidence in the present case as per the Provisions in Section 60 of the Indian Evidence Act. Even the maker of the Rukka, IO SI Bijay Kumar has not been examined by prosecution despite ample opportunities for the same being given to prosecution. The seizure memo produced on record does not mention that the said document was handed over to the IO by complainant nor does it bear his signatures as a witness.
11. The genesis and origin of the prosecution case is hence, falsified and unreliable. It is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference has to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution. In the absence of the complainant further the testimony of all other PWs is only hearsay. The non examination of complainant discredits the correctness and genuineness of the complaint as well as the seizure memo of the documents. Non production of the material witnesses certainly introduce infirmity in the prosecution case.
12. Even as per FSL report dated 11.03.2003 placed on record as Ex. PW 4/A proved by PW 4 Mr. B.P. Mishra, it is opined that on careful and thorough examination of the handwriting and signature's on Mark Q1 to Q6 which are signature's of the accused on the visa application form and the signature's on the alleged forged FDRs from State Bank of India and Canara Bank Ex. PW 5/B, it is reported that it has not been possible to FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 9 of 10 link authorityship of the writings marked Q1 to Q6 with the specimen writings and signature's of accused from S1 to S20. The FSL result hence has not supported the case for the prosecution.
PW 2 Mr. G.R. Tanawade, Superintendent, RPO Mumbai has rather supported the version of accused as he has categorically deposed that the passport which was sent to him for verification was a genuine one.
13. Taking into consideration the entire facts and circumstances and in the absence of complainant deposition of all hearsay witnesses in the circumstances of the present case is insufficient to prove the guilt of the accused and cannot be relied upon to upheld conviction. None of the witnesses has deposed anything which can prove any criminal act on the part of the accused. Accused hence stands acquitted. His bail bond stands cancelled. His surety stands discharged.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 27th February, 2013 ) METROPOLITAN MAGISTRATE This Judgment contains 10 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 87 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 10 of 10