Delhi District Court
State vs . Prakash Joshi Etc. Fir No.328/05 on 31 October, 2019
State vs. Prakash Joshi etc. FIR no.328/05
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IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE:
ROHINI COURTS NORTH DISTRICT, DELHI
Presided Over by : GAGANDEEP SINGH
State Vs. Prakash Joshi etc. Date of Institution 17.09.2005
FIR No. 328/05 Judgment Reserved on 03.08.2019
PS Adarsh Nagar Date of Judgment 31.10.2019
Under 384/511, 408, 419, 468/34 IPC &
Section 138 Electricity Act, 2003.
JUDGMENT
a) New Regn. No. of the case 5285463/16
b) Date of offence 08.07.2005
c) Name of the complainant Sh. Surender Singh, S/o Sh. Harbhajan
Singh, R/o H18/14, Sector7, Rohini,
Delhi.
d) Name & address of the accused (1) Prakash Joshi, Manager, Enforcement,
NDPL, Delhi.
(2) Anil Lodhi, S/o Sh. Puran Chand Lodhi,
R/o H.No.605, Gali No.5, Pul Mithai,
Shivaji Road, Azad Market, Delhi.
(3) Ram Nagina @ Rahim Khan, S/o Sh.
Budhi Ram Yadav, R/o C1375, Jahangir
Puri, Delhi.
(4) Firoz Khan, S/o Sh. Chhaban Khan,
R/o E1584, Jahangir Puri, Delhi.
e) The offence complained of 384/511, 408, 419, 468/34 IPC & 138
Electricity Act, 2003.
f) Plea of accused Pleaded not guilty
State vs. Prakash Joshi etc. FIR no.328/05
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a) New Regn. No. of the case 5285463/16
g) The final order Convicted (u/s 419/384/511/34 IPC)
h) Date of order 31.10.2019
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The FIR in question was got registered on the complaint of Sh. Surender Singh, Manager(Enforcement), NDPL. The said complaint was recorded on 08.07.2005. It was alleged that he along with his staff, namely, Ravi Bharti, Birender Prasad, and Sandeep Das went to the office of Crime Branch wherein they were shared with the information regarding tampering of meter. The raiding party was thereafter constituted and at about 2.40 p.m. they along with secret informer left in the private vehicles. At about 3.00 p.m., they reached at Azadpur Bus Terminal where 78 public persons were asked to join the proceedings but none agreed. Thereafter, they took their positions and at about 3.30 p.m., one white coloured Maruti van bearing No.DL4CH5114 came in front of Chauhan Dry Cleaner's shop. In the meantime, one motorcycle bearing No.DL8SAB3221 also came and stopped there. The secret informer identified the motorcyclist as Ram Nagina who along with three occupants of the van was trying to extort money from Chauhan Dry Cleaner on the pretext of tampering of electricity meter. IO thereafter deputed HC Radha Krishan as decoy customer and their official Ravi Bharti was deputed as shadow witness. They were asked to hear the conversation between the owner of the shop and said accused State vs. Prakash Joshi etc. FIR no.328/05 3 persons. After some time, both of them went to the said shop and made the designated signal. Thereupon, all the members of the raiding party, after receiving the signal, reached the said shop and apprehended Ram Nagina @ Rahim Khan, Anil Lodhi, Prakash Joshi and Firoz Khan. They were impersonating themselves as employees of NDPL. The meter in question at the shop of Dharmender Chauhan was checked which was found to be tampered. It was found that the accused Ram Nagina who used to work with the contractor of NDPL. Further, during installation of meters, he tampered the meter. They were impersonating themselves as NDPL employee and were trying to extort money from Dharmender Chauhan. It was found that meter was running slow due to the tampering done in it at the time of installation.
2. The said meter was got photographed and proceedings were initiated with respect to the tampering of meter as well as in the present meter. After registration of the FIR, the incriminating documents were recovered from the possession of the said four accused persons i.e. fake ID cards claiming themselves to be the employee of NDPL/BSES Yamuna, visiting cards showing themselves to be involved in the said work of electricity bills, booklets concerning the installation reports of the electricity meters, electrical instruments for installation, etc. All the said articles were sealed and later on, seized in the present matter. The said accused persons were arrested in the present matter. After completion of investigation, the chargesheet was filed u/s 384/511/408/419/468/34 IPC & State vs. Prakash Joshi etc. FIR no.328/05 4 138 Electricity Act, 2003.
3. The cognizance upon the said final report was taken by the Ld. Predecessor on 31.08.2005 and matter was later on, committed to the designated Electricity Court. The charge was framed against all the accused persons by the said Court for the offence u/s 384/511/34 IPC and secondly, u/s 419/34 IPC. Separate charges were framed against accused Ram Nagina for the offence u/s 408 & 468 IPC. All the accused persons pleaded not guilty and claimed trial. In the present case, as no charge u/s 138 of the Electricity Act was framed, the designated Court remanded the present matter to this Court by virtue of its order dated 06.10.2012.
4. The prosecution in order to prove their case against all the said accused persons has examined Thirteen witnesses in all.
5. PW1 HC Radha Krishan is the member of the raiding party. He deposed that on 08.07.2005, he along with IO SI Raj Singh, HC Dharam Singh, Ct. Ashok, Ct. Kaptan Singh, Ct. Mukesh Negi, Ct. Kishan and officers of NDPL went to the spot. They left their office at about 2.40 p.m. and reached at Azadpur Bus Terminal at about 3.00 p.m. where IO requested 56 public persons to join the proceedings but none agreed. At about 3.30 p.m., they all reached at Pyare Lal Chowk where one Maruti car bearing No.DL 4CH5114 and one motorcycle bearing No.DL8SAB3221 came there. Three boys were sitting in the Maruti van and one boy was on the motorcycle. All the four bys entered in State vs. Prakash Joshi etc. FIR no.328/05 5 the shop of Chauhan Dry Cleaner. He was deployed as decoy customer along with one Devi Dutt, NDPL official as shadow witness. He was asked to hear the conversation between the said four persons and shopkeeper. He reached at the shop and heard the talks. He thereafter called the members of the raiding party who came there and apprehended all the four accused persons, namely, Firoz, Ram Nagina, Prakash and Anil and others. The accused Ram Nagina claimed himself to be the official of NDPL to the shop of owner Dharmender Chauhan and stated his meter was tampered. He demanded Rs.50,000/ as extortion amount or else he will be booked in a criminal matter. He narrated the said incident to IO. IO recovered one black coloured bag having stationery of NDPL and other instruments. The accused persons were thereafter arrested and their personal search was carried out vide memos Ex.PW1/A to Ex.PW1/D. The rukka was prepared and the FIR was got registered through Ct. Ashok. The fake Icards were recovered from the possession of accused persons which were in the name of Prakash Chand, Ram Nagina, Ashok and another car in the name of Ram Nagina upon which the photograph of Prakash Chand was affixed. He identified the said Icards as Ex.PX1 to Ex.PX4. The case recovered papers were also identified by the witness.
6. PW2 Hari Om is the shopkeeper whose shop was situated in the vicinity of Village Azadpur. He too was dishonestly induced by accused Ram Nagina in the year 2005 in connection with installation of electricity meter and there being defect in it. He was State vs. Prakash Joshi etc. FIR no.328/05 6 threatened by all the accused persons for imposition of heavy fine as well as imprisonment. They also demanded money to get the matter settled. He accordingly paid Rs.10,000/ to them. Later on, he joined the investigation of the present case and his statement was recorded u/s 161 Cr.PC.
7. PW3 HC Dharam Singh, PW4 HC Krishan and PW5 HC Kaptan Singh are also recovery witnesses who too have deposed on the lines of PW1 HC Radha Krishan.
8. PW6 Surender Singh is the complainant/Manager(Enforcement) in NDPL. He deposed that on 08.07.2005, he along with his team consisting of Mr. Ravi Bharti, Mr. Sandeep Das(ET) and photographer went to Crime Branch Office, Prashant Vihar at about 10.30 - 11.00 a.m. From there, they all along with team members of Crime Branch went to the shop of Chauhan Dry Cleaners, Azadpur, Delhi. The secret informer had informed them that the suspects would be coming there and accordingly, they took their positions by hiding themselves. They started waiting for the suspects who were stated to be involved in extortion of money from NDPL customers on the pretext of meter tampering by customers. After about half an hour, one white coloured Maruti van came there along with one motorcycle. The occupants of van and motorcycle rider went to the shop of Chauhan Dry Cleaners. The Crime Team member HC Radha Krishan along with Ravi Bharti had gone to the shop to hear the talks between suspects and the shop owner. As they received signal from them regarding the confirmation of the aforesaid State vs. Prakash Joshi etc. FIR no.328/05 7 information of extortion, they all rushed to the dry cleaner shop. Four persons were apprehended at the shop by Crime Branch team. They checked the electricity meter of shop and it was found to be tampered i.e. resistance to slow the meter. They prepared documents regarding tampering of meter and thereafter, his statement Ex.PW6/A was recorded. The accused persons Prakash Joshi, Anil Lodhi and Firoz Khan were identified by him. All the aforesaid accused persons were apprehended by the Crime Branch team at the spot. The police seized the recovered articles vide seizure memos Ex.PW6/D and Ex.PW6/E respectively. The motorcycle and Maruti van were also seized by the police vide seizure memo Ex.PW6/F and Ex.PW6/G. One electricity bill of Chauhan Dry Cleaner was also seized vide Ex.PW6/H. The copy of show cause notice issued served upon Dharmender Chauhan vide Mark PW6/2 attested by him. The photographs of the electricity meter as well as the spot were taken vide Mark PW6/3. The accused persons were not the employees of NDPL nor they were workers of contractor. He also identified the four Icards as Ex.PX1 to Ex.PX4 recovered from the possession of accused.
9. PW7 Dharmender Chauhan is the owner of the dry cleaning shop situated at Azadpur, near Pyare Lal Chowk which was raided. He deposed that around twelve years ago in the afternoon hours, accused Ram Nagina and his two associates came at his shop and told him that there was tampering in his meter. They demanded money from him to hush up the matter but he told them that he has not tampered any meter and refused to pay State vs. Prakash Joshi etc. FIR no.328/05 8 the money. But, his neighbours advised him to settle the matter. While talks regarding process of arranging money were going on, the police raided the shop. He identified all the four accused persons who came at his shop on that day who had produced their I cards claiming to be employee of NDPL. One of the accused was standing outside when talks were going on. Police seized the recovered articles and the vehicles vide seizure memos Ex.PW6/D and Ex.PW6/E respectively. They had shown their Icards when he demanded for the same.
10. PW8 Jasbir Singh Panwar is also an official from NDPL who joined the investigation on 26.08.2005. He provided to the IO the attested copies of contract between NDPL and Technicom, attested copy of the form of registration of Ram Nagina and Firoz Khan, attested copy of report of meter belonging to Vinod Chauhan which were seized by the IO vide seizure memo Ex.PW8/A. Copy of the form for issuance of tampered Icard of the officials Ram Nagina and Firoz Khan for issuing temporary ID card are Mark PW8/X and PW8/X1. The reply to the mail for verification of employees is Ex.PW8/B. As per the reply, Firoz Khan and Ram Nagina were working with Technicom earlier but had left the job six months prior to the date of mail.
11. PW9 Birender Prasad is the official from NDPL who used to work as a photographer and had accompanied the raiding party led by their senior PW6 Surender Singh. He too deposed on the lines of statement given by PW6.
State vs. Prakash Joshi etc. FIR no.328/05 9
12. PW9A(inadvertently mentioned as PW9) ASI Mohan Singh is the duty officer who proved the registration of FIR vide Ex.PW9/A.
13. PW10 Ravi Bharti is the official from Enforcement Branch of NDPL who had accompanied PW6 Surender Singh firstly to the Crime Branch office and later on, to the spot where the raid was conducted. He also deposed on the lines of statement given by PW6 Surender Singh.
14. PW11 Parminder Singh is the official from Technicom Company which was the subcontractor of NDPL dealing with the work of replacement of the electricity meter on behalf of NDPL. He deposed that accused Ram Nagina was their employee who used to visit the sites and replace the old meters with new one. Later on, he came to know that there used to be tampering in the meter by some of their employees and they had removed Ram Nagina from the job due to said complaints. Accused Firoz Khan and Prakash Joshi never worked with them.
15. PW12 Vikas Saran is also an official from NDPL who proved the complaint u/s 151 of Electricity Act vide Ex.PW12/A.
16. PW13 ACP Raj Singh is the Investigating Officer. He deposed that on 08.07.2005 while he was present at his office at Prashan Vihar, one secret informer informed him about illegal business of extortion by the persons, who were previously employed with NDPL, on account of meter tampering. He shared the information with his senior officer State vs. Prakash Joshi etc. FIR no.328/05 10 and recorded DD No.14 vide Ex.PZ1. The official message was sent to NDPL and their officials, namely, Surender Singh and others came to his office. Thereafter, raiding party was constituted. They departed from office vide DD No.15 Ex.PZ2 and reached at Pyare Lal Chowk, Azadpur. There at about 4.00 p.m., one Maruti car and motorcycle came and stopped their vehicle in front of Chauhan Dry Cleaner shop. He sent HC Radha Krishan as decoy customer and Ravi Bharti from NDPL as shadow witness. They were asked to hear the conversation, and thereafter, made the designated signal. After thirty minutes, HC Radha Krishan made the designated signal and they apprehended four accused, namely, Ram Nagina, Anil Lodhi, Prakash Joshi and Firoz Khan. It was informed that they had demanded Rs.50,000/ from Dharmender Chauhan on account of meter tampering charge. The meter was found to be tampered by the NDPL officials. The spot and meter was got photographed. He recorded statement of Surender Singh and prepared rukka Ex.PW13/A. The FIR was got registered through Ct. Ashok. Thereafter, personal search of accused persons was conducted. Two Icards were found from accused Ram Nagina and one from A.K. Lodhi and Prakash Joshi which were seized vide seizure memos Ex.PW6/B, Ex.PW6/C and Ex.PW6/D respectively. He also seized the bill of the shop vide memo Ex.PW6/H. The Maruti car and motorcycle were seized vide seizure memos Ex.Pw6/F and Ex.PW6/G respectively. One bag recovered from possession of accused Ram Nagina was seized vide seizure memo Ex.PW6/E. All the accused persons State vs. Prakash Joshi etc. FIR no.328/05 11 were arrested and their personal search was got conducted. Their disclosure statements were recorded vide Ex.Pw13/C to Ex.PW13/H respectively. He, thereafter, prepared site plan Ex.PW13/G on 15.07.2005. On 24.08.2005, NDPL official Ravi Bharti produced the electricity meter, two photographs and letter to Technicom which were seized vide seizure memo Ex.PW13/H. On 26.08.2005, Jasvir Singh, an official from NDPL produced the copy of contract between NDPL and Technicom which was seized vide seizure memo Ex.PW8/A. He identified the said seized Icards as well as the case property.
17. CW1 Tarun Kumar was examined as Court witness who is official from NDPL. He produced the original inspection report, copy of Show Cause Notice issued to Vinod Chauhan and Dharmender Chauhan vide Ex.CW1/A and Ex.CW1/B respectively.
18. After completion of the prosecution evidence, the statement of all accused persons were recorded u/s 313 Cr.PC wherein all the accused persons claimed false implication and innocence. Accused Prakash Joshi claimed that he has been falsely implicated and was wrongly detained at PS. Accused Ram Nagina claimed that on 06.07.2005, he was called at Prashant Vihar office of Crime Branch where he was detained for two days without any charge. His wife and father in law moved the complaint, and thereafter, he was arrested in the matter. Accused Firoz Khan claimed that he is the brother in law of accused Ram Nagina and he went to the Crime Branch office to know about him but he State vs. Prakash Joshi etc. FIR no.328/05 12 was illegally detained for two days from 06.07.2005. Lastly accused Anil Lodhi further claimed that he too was detained for two days at Crime Branch office, Prashant Vihar. His family members, thereafter, moved an application before the Joint Commissioner of Police and due to the same, he was arrested in the present matter. No defence evidence was led on behalf of the accused person.
19. I have heard the Ld. APP and Ld. Counsel for the accused persons and gone through the record.
20. It was argued on behalf of the accused persons that no money was exchanged in the present matter as is quite apparent from the contents of FIR as well as testimony of the witnesses, and hence, charge of extortion does not survive. It was further argued that all the accused persons have been falsely implicated as is quite apparent from the photographs proved on record. None of the photograph reflect the presence of accused. No CCTV footage has been seized in the present matter. It was also argued that none of the articles alleged to be recovered have any connection with the accused persons nor had any handwriting or signatures of the said accused. Lastly, it was argued that Dharmender Chauhan, the owner of the Drycleaner shop had himself used the tampered electricity meter but he was never booked by the NDPL and per contra, the accused persons have been charged for tampering the electricity meter in the present matter. It was also argued that accused remained in illegal detention for three days, and thereafter, one of the family State vs. Prakash Joshi etc. FIR no.328/05 13 members of the accused Prakash Joshi moved the application in the Court of Ld. ACMM due to which they were falsely implicated in the present matter by Crime Branch officials.
21. The case of the prosecution initiated consequent to the receipt of secret information by PW3 ACP Raj Singh which was recorded by him vide Ex.PZ1. It was recorded on 08.07.2005 at about 1.45 p.m. that one of the accused Ram Nagina, who used to work as employee on behalf of contractor of NDPL, is extorting money on the pretext of tampered electricity meters. The said information was shared with the senior officials and on their directions, few NDPL officials were joined in the investigation in the present case. Subsequently, the NDPL officials led by PW6 Surender Singh, who is also the complainant in the present matter, along with other staff joined the Investigating Officer and other police officials raided where all the accused persons were apprehended while they were impersonating as NDPL employees as well as attempting to extort money from the owner of the shop i.e. PW7 Dharmender Chauhan. In the said backdrop, the first factual issue in hand which the prosecution was required to prove is the status of accused persons visavis the NDPL or its contractor Technicom or BSES. In this regard, the version given by PW8 Jasbir Singh Panwar and PW11 Parminder Singh are material. PW8 Jasbir Singh Panwar had joined the investigation in the present matter after registration of the FIR on 26.08.2005 and had provided the material documents concerning execution of contract by NDPL in favour of Technicom Ltd. vide contract State vs. Prakash Joshi etc. FIR no.328/05 14 Ex.PW8/A. The scope of the said contract was to ensure replacement of electricity meters by said subcontractor in the premises identified on behalf of NDPL. The other two crucial documents produced by him which are unrebutted and not challenged are Mark PW8/X and Mark PW8/X1. These are the attested true copies provided by PW8 to the Investigating Officer. It is the form for issuance of temporary identity cards to the employees of said subcontractor Technicom. The said temporary Icards were issued in the name of accused Ram Nagina and Firoz Khan respectively. They were the temporary employees employed by Technicom to perform the obligations of the said contract in their favour. In the cross examination of said PW8, it was categorically and in unequivocal terms admitted by accused persons that none of them were working with NDPL or its agency Technicom in the month of July, 2005.
22. Similarly, PW11 Parminder Singh is the official from M/s Technicom company deposed that only accused Ram Nagina used to work on behalf of their company and he too worked for some time. He was later on removed due to complaints received against him, though the said witness had no personal knowledge with respect to the said complaints. But on the factual aspect qua status of the said accused persons visavis NDPL or Technicom company in July, 2005 is concerned, the version given by PW8 and PW11 conclusively proves the fact regarding they having no concern with NDPL or its contractor Technicom as on date of offence. Hence, the said accused persons had no State vs. Prakash Joshi etc. FIR no.328/05 15 connection with either of the said firms, and therefore, had no authority to represent themselves as NDPL employees to the users.
23. The next aspect of the prosecution case against the accused is the charge of impersonation as NDPL employees and secondly, in furtherance of said impersonation attempt to extort money. The charge primarily depends upon the versions given by the members of the raiding party i.e. PW1, PW3, PW4, PW5, PW6, PW10 & PW13. All the said witnesses deposed consistently on the material aspects right from the beginning when they gathered at the Prashant Vihar office and began their journey towards Azadpur. The IO, in this regard, recorded his departure entry vide Ex.PZ2 and at about 3.30 p.m., they reached at Pyare Lal Chowk, Azadpur where the shop of Dharmender Chauhan under the name and style of Chauhan Dry Cleaners was located. The versions of said members of the raiding party comprising of police officials as well as the independent officials of NDPL, namely, PW6 Surender Singh, PW10 Ravi Bharti and PW9 Virender Prasad, is consistent and corroborate each other on all the material aspects. They deposed consistently as to the manner in which they initiated the raid by deputing PW10 as shadow witness and PW1 Radha Krishan as decoy customer. They both first of all went to the said shop and heard the conversation between Dharmender Chauhan and accused persons wherein the accused persons were impersonating themselves as NDPL employees and demanding Rs.50,000/. They threatened him with his criminal prosecution for State vs. Prakash Joshi etc. FIR no.328/05 16 tampering of meter in case extortion amount was not paid.
24. The first ground on which the testimonies of the said raiding party was impugned on behalf of the accused persons was their presence being not reflected in the photographs Ex.PW9/A(colly). The photographs in the present matter were got clicked by one of the member of the raiding party, namely, PW9 Birender Prasad who used to work on daily basis with NDPL as photographer. His scope of employment was on contractual basis and was only supposed to click the photographs concerning the meter which he did so in the present matter. All the photographs primarily reflect the identity of the place and tampered meter. He was never asked to click the photographs of the members of the raiding party at the spot or the accused persons as is quite apparent from his version. He too admitted in the cross examination that he used to click the photographs on the direction of NDPL officials who in the present case were PW6 and PW10. Their primary concern was tampered meter and its location and due to this reason only, none of the members of the raiding party nor the accused persons were got clicked. In these circumstances, the said ground argued on behalf of the accused for impugning the testimonies of the raiding party is without any basis and is liable to be rejected.
25. It was also argued on behalf of the accused persons that the IO PW13 SI Raj Singh illegally detained the accused persons at his office at Prashant Vihar for three days i.e. from 06.07.2005 and produced them in the Court only on 08.07.2005. They were State vs. Prakash Joshi etc. FIR no.328/05 17 produced only consequent to the filing of complaint by one of the members of the family of accused Prakash Joshi. The suggestion to this effect was given to all the members of the raiding party which they denied in categorical terms. If indeed the claim of said illegal detention and consequent moving of the application in this regard in the Court of Ld. ACMM was correct, the said evidence was within the reach of accused and should have been produced by the accused persons in their defence. No such defence has been brought forth nor the said complaint has come on the record. Surprisingly, the accused Prakash Joshi, whose family members was claimed to have moved complaint in the Court of Ld. ACMM against illegal detention, preferred to remain silent in this regard in his version recorded u/s 313 Cr.PC.
26. The other accused Anil Lodhi claimed in his staement u/s 313 Cr.PC that after he was detained at the Crime Branch office at Prashant Vihar for two days, his family members had moved the complaint before the Commissioner of Police, Delhi due to which he was arrested in the present case. The said complaint too has not been proved nor brought on record. Even the IO was not cross examined on the said aspect. In these circumstances, the argument advanced on behalf of the accused persons is also liable to be rejected and their defence qua their false implication has remained unproved.
27. The prosecution in order to prove the charge of impersonation and while impersonating attempting to commit extortion from the consumer of NDPL has also State vs. Prakash Joshi etc. FIR no.328/05 18 placed reliance upon the testimony of the victim PW7 Dharmender Chauhan. He is the victim in the present matter who was threatened with criminal prosecution. His testimony was impugned on behalf of the accused primarily on the ground that the said Dharmender Chauhan misused the electricity meter installed at his premises and despite that, he was never booked by the NDPL. The reason for NDPL for not taking action against him was his connivance with the NDPL against the accused herein. The PW7 Dharmender Chauhan, owner of the Dry Cleaner shop at Azadpur was present at his shop on 08.07.2005. It is his shop where the accused persons first of all went impersonating themselves as NDPL officials. On the issue of raid by accused and subsequently by police, PW7 deposed consistently and vividly described the role played by each of them. He deposed that accused Ram Nagina was the main culprit who had come along with other two associates inside his shop. The fourth accused i.e. accused Firoz was claimed to be the NDPL driver kept standing outside the shop while they were talking to him. He further elaborated his version on the aspect of impersonation and deposed that on his demand, the said accused persons produced their Icards before checking his meter. On both the said crucial aspects i.e. impersonation by the accused persons as well as the role played by accused Ram Nagina and his two associates, no worthwhile contradiction has been brought forth in the entire cross examination. It is also quite apparent from his cross examination that none of the accused persons were known to PW7 prior to the date of State vs. Prakash Joshi etc. FIR no.328/05 19 incident, and therefore, there is no question of any enmity or false implication.
28. The sole ground on which the testimony of PW7 has been impugned is the connivance of NDPL with said Dharmender Chauhan and he being not booked despite tampering in his electricity meter. The said argument advanced on behalf of the accused is liable to be rejected in view of the admitted documents produced by the prosecution i.e. Ex.CW1/A and Ex.CW1/B respectively. The inspection report Ex.CW1/A is a contemporaneous document prepared on the spot on the same day having signature of Dharmender Chauhan on it. It was prepared by PW6 and PW10 after the inspection of the meter in question wherein the observations were specifically noted down regarding tampering of meter circuit. Ex.CW1/D is the Show Cause Notice which was served upon the registered consumer i.e. Vinod Chauhan through Dharmender Chauhan who was present at the shop, wherein he was asked to explain his conduct for dishonest abstraction of electricity. The proceedings were thus very much initiated by Enforcement and Assessment Cell of NDPL against PW7 with respect to the electricity connection vide K. No.31305013865V. Though the conclusion of the said proceedings conducted by Enforcement and Assessment Cell have not been brought on record. The said conclusion is irrelevant in the present matter.
29. The other limb of argument against the testimony of PW7 is that he deposed against the accused persons in connivance with NDPL. The said ground too does not State vs. Prakash Joshi etc. FIR no.328/05 20 hold any ground in view of the testimonies given by NDPL officials i.e. PW6 Surender Singh, PW10 Ravi Bharti and lastlly, PW9 Virender Prasad, the photographer. The cross examination of the said all three NDPL officials reflect that they had no iota of connection with the consumer Dharmender Chauhan and were merely performing their official duty being part of Enforcement team, NDPL. It is also quite apparent from the testimonies of the said NDPL officials that they had no previous connection at all with either of the accused and were not even known to them. Only accused Ram Nagina and Firoz were the contract workers of the subcontractor of NDPL and even they had no connection at all with the said NDPL officials who were part of Enforcement Department. Thus, no reason or ground has come on record which affects the testimonies of the said NDPL officials or PW7 against the accused named by them. The identification of said accused by PW7 is not challenged. He had talked to accused at his shop for sufficient time i.e. around thirty minutes, and therefore, had ample opportunity to identify them.
30. The other material witnesses examined by the prosecution qua the charge of impersonation and attempt to extort money are the other members of the raiding party i.e. PW1 Radha Krishan and PW10 Ravi Bharti who acted as decoy customer. They too deposed consistently to the sequence of events which took place consequent to receipt of information by the IO on 08.07.2005. Both of them also consistently deposed with respect to the role played by the accused persons by threatening PW7 with false State vs. Prakash Joshi etc. FIR no.328/05 21 implication and demanding Rs.50,000/ to escape prosecution. They heard the entire conversation being deployed as decoy customer. They also proved the recovery of incriminating documents from the said accused persons.
31. The other ground on which the testimonies of the above said decoy customer as well as the other members of the raiding party was impugned on the ground that they were acting in connivance with the officials of NDPL in order to falsely implicate the accused persons. The cross examination of the said police officials and more specifically PW13 reflect that all the said police officials have no previous enmity or illwll with either of the accused. They also were not having any connection at all with the NDPL officials, and hence, there was no question of them having any connivance with the officials of NDPL in getting the accused persons falsely implicated. In these circumstances, the versions given by members of the raiding party qua the sequence of events, role played by accused as well as recovery of incriminating documents including fake Icards has to be termed as credible and trustworthy which goes against the accused.
32. The last set of circumstantial evidence against the accused is the recovery of incriminating documents effected from them from the spot itself. The first set of recovery is the four fake Icards in the name of accused Ram Nagina, A.K. Loshi and Prakash Chander. The Icard Ex.P4 was in the name of Ram Nagina, but it was further forged as it was having the photographs of accused Prakash affixed on it. Two Icards i.e. Ex.PX1 State vs. Prakash Joshi etc. FIR no.328/05 22 and Ex.PX4 were recovered from the possession of accused Ram Nagina and one Icard each Ex.P2 & Ex.P3 were got recovered from the possession of accused Prakash Joshi and A.K. Lodhi respectively. The said recoveries were proved by all the said recovery witnesses who were members of the raiding party. The Icards were also identified by the victim PW7 Dharmender Chauhan and he deposed in clear terms that the said Icards were produced by the accused persons while they impersonated themselves as NDPL employees. It is quite apparent from the said Icards that all of them are forged documents as none of them ever worked on behalf of M/s BSES Yamuna. The last Icard Ex.P4 issued by NDPL in favour of accused Ram Nagina being the employee of Technicom company had already expired and he was already fired from the service of the contractor as was deposed by PW11 Parminder Singh. No explanation was offered on behalf of accused as to the recovery of said Icards and how their photographs came upon it.
33. Apart from the said fake Icards, several other incriminating documents were recovered from the possession of all the four accused persons i.e. visiting cards in the name of accused Prakash Joshi, one black coloured bag, two clamp meters, one magnifying glass, two testing wires, one cutter, one yellow coloured wire and more importantly, the stationery items having been forms of NDPL, BSES, Yamuna etc. It was argued that none of the said recovered items have any connection with the accused State vs. Prakash Joshi etc. FIR no.328/05 23 persons, and therefore, cannot be read against them. No doubt, none of the said recovered items had the names of the accused persons written on it. The purpose of the said items was only to reflect and induce the customers into belief that they are the genuine employees of NDPL/BSES. With the said purpose only, the stationery items including stationery forms etc. were used by the said accused. No explanation has been offered on behalf of the accused persons as to the possession of the said incriminating articles and reason for said articles being in their possession at the time of recovery. None of the accused had any role either with NDPL or BSES at the time of recovery, and therefore, there was no justification for possession of said forms etc. Hence, the said circumstantial evidence too goes against the accused and reflect their role in the offence of impersonation and attempt for extortion.
34. The last legal argument which was advanced on behalf of the accused was that no money was exchanged in the present matter, and hence, no offence u/s 384 IPC is made out. The accused persons have been charged for the offence of attempt to commit extortion. The ingredients of the offence u/s 383 IPC have been explained by the Hon'ble Supreme Court in the case of Dhananjay alias Dhananjay Kumar Singh Vs. State of Bihar and another (2007) 14 SCC 768. The relevant paras no.5 & 6 are reproduced as under:
"5. Section 384 provides for punishment for extortion. What State vs. Prakash Joshi etc. FIR no.328/05 24 would be an extortion is provided under Section 383 of the Indian Penal Code in the following terms:
"383. Extortion: Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion"."
6. A bare perusal of the aforementioned provision would demonstrate that the following ingredients would constitute the offence:
1. The accused must put any person in fear of injury to that person or any other person.
2. The putting of a person in such fear must be intentional.
3. The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
4. Such inducement must be done dishonestly."
35. Admittedly, in the present case in hand, there was no payment of money by victim Dharmender Chauhan as the offence was stopped prior to reaching its conclusion by the members of the raiding party. The accused persons were apprehended at the spot itself State vs. Prakash Joshi etc. FIR no.328/05 25 while they were in the process of extracting money from the victim by impersonating themselves as NDPL employees and putting him into fear of criminal prosecution due to tampered electricity meter. It is also quite clear that accused had put PW7 in fear of criminal prosecution and he was about to handover the extortion amount when the place was raided. Therefore, the charge for the attempt to commit extortion has only been framed which duly stands proved through the versions given by the raiding party.
36. The accused Ram Nagina is further charged for the offence u/s 408 IPC for having committed breach of trust with respect to the entrusted property i.e. tampered meter. He is also charged u/s 468 IPC for the tampering of the electricity meter for the purposes of cheating. It has already come on the record through the versions given by PW8 and PW11 that accused Ram Nagina was already fired from his job by the contractor Technicom at the time of incident. Hence, there was no question of entrustment of the property by the employer to him. Further, no evidence has come on record for entrustment of any property. The second charge is concerning the tampering of the electricity meter which he had installed at the premises of victim PW7. No such evidence has come on record that the said meter was got replaced by the contractor of NDPL i.e. M/s Technicom Ltd. It has also not come on record that the said change was effected by M/s Technicom during the service of their employee Ram Nagina as alleged. The only evidence which has come on record is the tampering of the electricity meter and the State vs. Prakash Joshi etc. FIR no.328/05 26 accused persons attempting to commit extortion while inspecting it and pretending to be NDPL employees. In these circumstances, the charge for the offences u/s 408 & 468 IPC is not made out.
37. In light of the above said reasons, it has to be held that the prosecution has been successfully able to prove the case against the accused persons for the offences u/s 419 IPC and 384/511/34 IPC. Accused Ram Nagina is acquitted for the offences u/s 408/468 IPC.Digitally signed by
GAGANDEEP
GAGANDEEP SINGH
SINGH Date: 2019.11.06
Announced in open Court. 14:47:56 +0530
Delhi, Dated the 31.10.2019 GAGANDEEP SINGH
This Judgment contains 26 pages Chief Metropolitan Magistrate
and each page is signed by me. Rohini/New Delhi