Delhi District Court
State vs . Vikram Kumar on 21 March, 2023
1
IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District
Patiala House Courts : New Delhi.
FIR No. 308/2015
P.S. : Connaught Place
Under Section : 420, 468, 471, 34 IPC
State Vs. Vikram Kumar
ID number of the case : 57102/2016 DLND020102702016
Date of commission of : In between 06.04.2015 to 19.11.2015.
offence
Date of institution of the : 18.06.2016.
case
Name of the complainant : Rakesh Kumar
Name of accused and : Vikram Kumar, S/o Shri Om Prakash Singh,
address
R/o Village & P.S. Sangrampur, District
Munger, Bihar.
Offence complained of or : U/s. 420, 468, 471, 34 IPC
proved
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 21.03.2023.
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.By this Judgment, I shall dispose of the case of the FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 1 2 prosecution against accused Vikram Kumar for the commission of offences punishable u/s 420, 468, 471 read with 34 IPC.
2. It is the case of the prosecution that the accused, along with other coaccused (who were never traced, arrested or charged), deceived the complainant by inducing him to deliver a sum of Rs. 2.5 lacs on the pretext of getting him a job. It is also alleged against the accused that the deception was committed by creating a false/forged letter of employment purportedly issued by the railways, which was dishonestly used by the accused as genuine for the purpose of cheating.
3. Upon registration of FIR, investigation was launched in the case which culminated into a chargesheet against the accused. Cognizance on the same was taken by this Court and the accused was summoned. Thereafter, charges were framed against the accused for the commission of offences punishable u/s 420, 468, 471 read with 34 IPC vide order dated 12.04.2016 to which, the accused pleaded not guilty and claimed trial.
4. The matter was then fixed for prosecution evidence wherein the prosecution examined seven witnesses.
5. The complainant Sh. Rakesh Kumar was examined as PW
1. He deposed that in the summer of 2013, he used to go to Coffee House, Connaught Place and used to park his motorcycle in the parking.
FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 2 3He also used to sit in the park, where accused Vikram and Shubham met him. He deposed that they informed him that they were running a placement agency at Laxmi Nagar, Delhi, near metro station, and also provided him their mobile numbers. Thereafter, they called him at Coffee House, Connaught Place 23 times and showed him some documents related to Railways and some private companies. He further deposed that they were in contact through telephone for some days. Thereafter, both the accused persons called him outside the Rail Bhawan. On reaching there, he discovered that both the accused persons were accompanied by some other persons and they showed him some blank forms related to Railway, Danapur Division. From there, they took him to Coffee House, CP, where they took photocopies of all his documents and got the same attached with the said form and also filed the said form in their own handwriting. Thereafter, both the accused persons asked him to give them Rs.1.50 lacs. They also asked him to pay for their travel and lodging expenses, which he accordingly did. He further deposed that for the said payment, an amount of Rs. 1.30 lacs was transferred in his account by his paternal grandfather, who is a pensioner, and Rs.20,000/ was paid in cash by him. Thereafter, both the accused persons took him to Danapur, Patna, Bihar. He further deposed that they stayed at a hotel for about 2 days and then accused Vikram took him to a hospital at Danapur via car on the pretext of medical examination. He further deposed that before going to hospital, both the accused persons had taken Rs.70,000/ in cash from him, which he had withdrawn from an ATM there. The accused persons then told him that FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 3 4 within 23 months, his joining letter will be provided to him. After 23 months, he again received a call from accused Vikram who asked him to bring payment of Rs. 1 lac in cash. He further deposed that later, he alongwith his maternal grandfather (nanaji) namely Yaadram were sitting in the parking, near Hanuman Mandir when accused Vikram came there and showed him a file containing several letters of some other persons including his letter. After seeing the said documents, stamps and signatures on the same, he was convinced regarding the genuinity of the said papers and handed over Rs. 1 lac in cash, and in return, the accused gave him a joining letter, which is now Ex.PW1/A. He further deposed that the accused Vikram asked him to give Rs.50,000/ in cash and only then, he could join within one month. He further deposed that after a month, he went to Howrah with both the accused persons and they stayed at New Ashok Hotel at his own expense. Thereafter, accused Vikram left the hotel after booking, however, he came after two days and then PW1 asked him as to the whereabouts of his other coassociates Shubham Srivastava and Shashi Kr. Ranjan. He further deposed that accused Vikram then asked him to pay Rs.50,000/ in cash. The accused took Rs.33,000/ in cash from him in the morning and asked him to arrange remaining Rs.17,000/ in cash. He further deposed that he arranged Rs.20,000/ from his paternal grandfather Shyam Lal, who transferred the said amount to his account. Thereafter, he transferred Rs.17,000/ in the bank account of Shashi Kr. Ranjan maintained at Bank of India, West Bengal, on the asking of accused Vikram. He further deposed that after 2 days, accused Vikram took him to a place by FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 4 5 the name of Bendal, near Hugli City, where the accused took all the documents from him which he had given to the complainant during the said transaction. He further deposed that later, the accused left and was in touch through telephone and then one day, a person came and took him to a jhuggi, where an unknown person was sitting and he was having a register in which he made an entry of his name and asked him to leave. He further deposed that after 23 months, he returned to his home town Faridabad on the asking of the accused. For 34 months, he tried to contact Vikram on his telephone number, however, the same went unreachable. After waiting for 3 months, he realized that he has been defrauded by the accused persons.
6. PW1 further deposed that thereafter, he came to Delhi and gave a written complaint to Delhi Police Headquarter and the same is Ex.PW1/B, bearing his signatures at point A. Thereafter, he went to the village of accused Vikram and on inquiry from neighbourhood, he came to know that the accused has an elder brother by the name of Prabhakar Suman in whose account, he had transferred some money during the aforesaid transaction. He further deposed that on his personal inquiry, he managed to search the address of accused Shashi Kr. Ranjan and accused Prabhakar Suman and gave the same to police, however, no action was taken by the police. PW1 correctly identified the accused Vikram Singh present in the Court during evidence.
7. PW1 was then crossexamined on behalf of the accused. He FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 5 6 deposed during cross examination that he had shown the shop of one Lalit Mangla at Ballabhgarh, from where he transferred money to the account of Prabhakar Suman and Suman Srivastava. He further deposed that it was correct that he came to know the details of account of Prabhakar Suman only during inquiry i.e. after registration of the FIR. At Laxmi Nagar, in front of Shakurpur metro station, some unknown rehriwalas/patriwalas (hawkers) told him the village address of accused Vikram. He further deposed that a total of Rs.2.50 lacs was taken by accused Vikram and Rs.70,000/ were spent by him during training, however, he does not have any receipts regarding the same. At this stage, seizure memos both dated 18.04.2016 Ex.PW1/D2 and ExPW1/D3 are shown to the witness and the witness states that the delay in handing over the said documents to the police was due to accused Vikram. He further deposed that he did not provide any railway ticket to the IO as he did not demand the same. He further deposed that he did not provide the bank statement of his paternal grandfather to the IO as he did not demand the same. He further deposed that he did not provide any dates in his complaint given to the IO, however, he refuted the suggestion that I did not mention any date in his complaint as no such alleged incident of fraud/cheating ever took place. He further deposed that at the time of arrest of the accused by the IO at Sangrampur, Bihar, IO did not take his signatures on any document.
8. The prosecution then examined PW2 Sh. Pradeep Kumar who deposed that on 18.04.2016, he was posted as Senior Manager in FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 6 7 Branch Connaught Circus, Bank of India, and on that day, IO/SI Badri Prasad came and gave a notice w/s 91 of Cr.P.C regarding the certified copy of account opening form of account numbers (1). 600310110004191 and (2) 443910110013732, bank account statement of account No. 600310110004191 from 01.10.2013 to 01.04.2014 and bank account statement of account No. 443910110013732 from 01.10.2014 to 10.02.2015. In respect of the same, I provided the copy of above said bank statements of above mentioned account numbers, which are already on record and now Ex. PW2/A running into two pages, bearing my signature at point A on both the pages and PW2/B running into two pages, bearing my signature at point A on both the pages. The same was seized by the IO/SI Badri Prasad vide seizure memo now Ex. PW2/C, bearing my signature at point A.
9. During cross examination, PW2 deposed that he did not have any personal knowledge regarding the case. Further, he stated it to be correct that he had never seen the accused and that the accounts were in the name of Subham Shrivastava and Shashi Ranjan Kumar and not in the name of the accused Vikram Kumar.
10. The prosecution then examined HC Omender as PW3 who deposed that on that day, the complainant Sh. Rakesh Kumar came to the PS and submitted the copy of bank's slip of deposit of money along with the joining letters of Railway and other papers given by accused Shubham Srivasatava and Vikram Kumar. The same were seized by FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 7 8 IO/SI Badri Prasad vide seizure memos already Ex. PW1/D2 and PW1/D3, both bearing his signature at point A. He further deposed that thereafter, on 23.04.2016, he went to PS Sangram Pur along with IO and from village Sangram Pur, accused Vikram Kumar S/o Om Prakash was arrested and personally searched vide memos Ex. PW3/B and PW3/C respectively, both bearing his signatures at point A. PW3 correctly identified the accused present in the court.
11. PW3 was cross examined on behalf of the accused wherein he deposed that he did not remember the train which they boarded for Bhagalpur to reach Sangrampur, although he deposed that they boarded the train from Anand Vihar Railway Station on 22.04.2016. PW3 could not remember the transport used by them to reach Sangrampur due to lapse of time. He further deposed that they firstly went to PS Sangrampur, however, he did not remember the name of the station house officer there. He further deposed that the complainant also reached Sangrampur, however, he did not accompany them.
12. The prosecution then examined Ms. Garima Srivastava as PW4 who deposed that after checking the record of the railways department, the employment letters in question were not found to have been issued by their office and seemed to be forged. She further deposed that she had also gone through the record available with her office and found that no such letter had been issued by her office and the same were forged.
FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 8 913. During cross examination, PW4 deposed that she did not have any personal knowledge regarding the case, and stated it to be correct that she had never seen the accused. She further stated it to be correct that the accused never met her and no information of theft of stamps from her office came to her knowledge during that time.
14. Thereafter, the prosecution examined Sh. Lalit Mangla as PW5 who deposed that on 03.06.2016, two notices u/s 91 of Cr.P.C were given by IO/SI Badri Prasad for obtaining money transfer details of Rs. 5,000/ dated 17.06.2014 in account no. 30229128236 from the centre run by PW5 i.e. through Oxyzen Finance Service along with relevant documents in this regard, as well as money transfer details of Rs. 5,000/ dated 13.01.2014 in account no. 600310110004191. He deposed that they did not retain any record more than three months old. He further deposed that the money was transferred by Sh. Rakesh Kumar s/o Sh. Lala Ram (complainant) through his shop on 13.01.2014, however, he did not provide any record to IO as it was more than three months old.
15. During cross examination, PW5 stated it to be correct that while transferring the money through Oxyzen finance service, anybody can deposit the money in any account, even randomly.
16. The prosecution then examined PW6 SI Roop Prakash who deposed about the registration of FIR on the basis of rukka received and FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 9 10 that thereafter, he attained superannuation. During cross examination, he denied the suggestion that he was deposing falsely.
17. Lastly, the prosecution examined SI Badri Prasad as PW7 who deposed that on 03.01.2016, he went to Kota, Rajasthan to meet and interrogate Sh. Prabhakar Suman in whose account the cheated amount was transferred and who was the brother of the accused. He further deposed that he met Sh. Prabhakar Suman, however, his culpability could not be ascertained as he informed him that he had given his ATM card to his father for use and the said ATM card was also being used by his brother/accused Vikram in Delhi. He further deposed that on 18.04.2016, the complainant Sh.Rakesh Kumar provided certain documents such as the deposit slip of Rs. 15,000/ in the account of Sh. Shubham Jha having account no. 8609108007317 maintained at Canara Bank, deposit slip of Rs. 17,000/ in the account of Sh. Shashi Ranjan Kumar having account no. 443910110013732 maintained at Bank of India dated 10.10.2014 and the complainant informed him that the said deposit slips indicated the amount deposited as per the instructions of accused Vikram against the promise of employment in Railway. He further deposed that the complainant also produced the copy of forged joining letter of East Central Railway, Danapur, Division, Government of India dated 15.05.2014, which was issued by Divisional Personnel Officer for East Central Railway and other documents. All such documents were seized by him vide memo already Ex. PW1/D3, bearing his signature at point B. The such documents are now Ex.
FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 10
11
PW7/C (colly in 4 pages).
18. During cross examination, PW7 stated it to be correct that the original forged documents were never recovered during investigation, and that the documents Ex. PW7/C (colly) have certain cuttings and corrections. He further stated it to be correct that the documents Ex. PW7/C are just photocopies or coloured photocopies of some documents, and also that the signature of accused Vikram was not found on any of such document. He further stated it to be correct that no TIP proceedings were conducted to get the accused identified by the complainant during investigation, however, he denied the suggestion that the accused was shown to the complainant before identification due to which, no TIP proceedings were conducted. He further deposed that the warrant for going to Danapur, Bihar on 21.04.2016 was not enclosed with the file. He further deposed that the train warrant was till Bhagalpur Railway station and then they traveled back to Danapur Sub Division through local train, however, they do not have the travel documents pertaining to the same. He further deposed that they reached Sangrampur at about 3.00 p.m. and he brought the accused to PS Sangrampur from his shop in the village itself. He further deposed that it took them around half an hour to prepare the documents in PS Sangrampur. He stated it to be correct that he did not cite any police official of PS Sangrampur as witness in his memos Ex. PW3/B to PW3/D. At this stage, PW7 voluntarily deposed that he had handed over a copy of arrest memo to the SHO there, however, he did not take any receipt of handing over FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 11 12 such copy. He further stated it to be correct that no cheated amount was received by the accused Vikram in his account and no such recovery had taken place from the accused during investigation, and also that the account was in the name of Sh. Prabhakar Suman. He further stated it to be correct that the complainant did not provide any receipt or trail of money allegedly paid to the accused Vikram, except two cash deposit slips of Rs. 15,000/ and 17,000/ in account of some other persons.
19. Upon the culmination of prion evidence, the statement of the accused u/s 313 Cr.P.C. was recorded wherein all the incriminating material against the accused was put to him. In his statement, the accused stated the entire case against him was false and fabricated and he did not receive any amount from the complainant. He further stated that he was implicated falsely in the case. No defence evidence was led on behalf of the accused.
20. Thereafter, the matter was fixed for final arguments. During the course of final arguments, Ld. Counsel for the accused submitted that the prosecution has failed to prove the ingredients of the offence in question. He further submitted that the prosecution failed to prove the receipt of any amount by the accused and that the alleged original documents were never recovered by the IO and in absence thereof, the allegations of forgery could not be made out.
21. Per contra, Ld. APP for the State submitted that the version FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 12 13 put forth by the complainant and other PWs sufficiently proves the prosecution case beyond reasonable doubt and all the witnesses have supported the case of the prosecution despite elaborate cross examination.
22. I may now proceed to examine the case on merits through appreciation of evidence on record.
23. The cardinal principle of criminal law dictates that the primary burden to prove the case against the accused rests upon the shoulders of the prosecution. When the prosecution succeeds in discharging its burden, the burden shifts upon the accused who must be afforded a reasonable opportunity to rebut the same or to subject the prosecution evidence to reasonable doubt in the eyes of the Court. Nevertheless, first and foremost, the prosecution evidence is to be sifted and weighed on its own merits and once the prosecution succeeds in proving its case, the burden shifts upon the accused. Notably, no occasion arises for shifting the burden upon the accused if the primary case of the prosecution itself has not been proved. It is also essential to note that the prosecution must prove all the ingredients of the offence i.e. the mens rea, actus reus and the link of causation between the crime and the accused.
24. The offence of cheating, punishable under Section 420 IPC, FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 13 14 requires the essential ingredients of deception, fraudulent or dishonest inducement and delivery of property as a result of such deceptionbased inducement. In Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696, the Hon'ble Supreme Court summed up the ingredients of cheating thus:
"9. The ingredients of Section 420 of the Penal Code are:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."
25. Thus, for the commission of offence of cheating, it is essential to prove deception, inducement as well as actual delivery of property. Furthermore, for proving the offence u/s 468 IPC, first and foremost, it is essential to prove the subingredient of forgery and in order to prove forgery, one needs to look at Section 463 IPC which defines forgery as creation of false document. Thus, creation of false document is a prerequisite for establishing the offence of forgery.
26. Apart from PW1 and PW7, all other prosecution witnesses are of a formal nature and have deposed without having any knowledge of facts of the case. Moreover, none of the said witnesses ever saw the FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 14 15 accused. PW1 deposed that he transferred a sum of Rs. 2.5 lacs to the accused. In order to substantiate the same, he deposed that the said sums were either withdrawn from the bank account of his grandfather (maternal and paternal) or were given in cash by him. PW1 could not produce any receipt to support his testimony or even a bank statement of the bank account of his grandfather to indicate the withdrawal of any amount from the said account at the relevant point of time. Pertinently, PW1 produced two deposit slips indicating the deposit of amounts of Rs. 15,000/ and Rs. 17,000/ in two bank accounts belonging to Shubham Jha and Shashi Ranjan Kumar. Importantly, none of those accounts belonged to the accused herein and no proof of transfer of any amount whatsoever in the account of the accused could be produced by the prosecution. PW7 also deposed that no amount was received by the accused Vikram in the entire transaction. The prosecution case also reveals that no recovery was made from the accused herein. Even if imagination is stretched to some extent and the accused is sought to be incriminated on the basis of receipt of any amount by his brother Prabhakar Suman, the prosecution has not placed anything on record to indicate any transfer of amount to Prabhakar Suman either. Furthermore, PW1 also deposed that he got to know about the bank account details of Prabhakar Suman only at the stage of enquiry i.e. after the registration of FIR. It is incomprehensible as to how the complainant transferred any amount in the account of Prabhakar Suman without having knowledge of FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 15 16 his bank account details. This fact, read in conjunction with other facts, substantially weakens the testimony of PW1. Either the alleged transfers are lacking in proof or the proof on record indicates two transfers in the bank accounts of unrelated persons.
27. PW1 deposed that the amounts of Rs. 15,000/ and Rs. 17,000/ were transferred in the bank accounts of Shubham Jha and Shashi Ranjan Kumar on the asking of the accused. However, apart from this bare statement, there is nothing on record to indicate that the accused was working in connivance with the said two persons or to even indicate that the accused knew those persons at all. In my considered opinion, it was essential for the prosecution to connect the accused with the persons in whose accounts the alleged amounts were transferred by the complainant. It bears repetition that the prosecution miserably failed to prove any material on record to manifest that connection or nexus. It also stems from the fact that no investigation was conducted with respect to the other two persons. If at all there was a nexus between these persons, they ought to have been made accused in the case. Contrarily, their roles were never investigated which raises a serious doubt in the version of PW1 that the accused used to come with the other two persons to meet him and that he had asked for the amounts to be transferred in their bank accounts.
FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 16 17
28. Although, PW5 deposed that an amount of Rs. 5,000/ was transferred by the complainant two times from his money transfer centre, however, he failed to provide any record pertaining to the same. As a result, it could not be ascertained that the amounts were transferred in the account of the accused or on his behalf. Mere fact that an amount was transferred from his centre proves nothing against the accused. Moreover, the said witness only confirmed the transfer of Rs. 10,000/ (two installments of Rs. 5,000/ each), and there is no specific mention of any transfer of Rs. 5,000/ in the account of the accused or on his asking at any stage of the transaction forming part of the allegations in this case.
29. Although PW1 has identified the accused as the person who had met him at Connaught Place and who had deceived him on the pretext of securing employment for him, the overall version of PW1 suffers from material infirmities. Even if the ingredient of deception is assumed on the bare testimony of PW1, he could not prove the essential ingredient of delivery of property. There is no record of payment. There is no record of travel or hotel stay at Danapur, Bihar or at Howrah. There is no witness from any of these places to corroborate the fact that the complainant was actually taken by the accused to these places. Although the employment documents/letters could have been crucial for connecting the accused with the crime, nothing could be achieved on that FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 17 18 front as the original documents were never recovered during the investigation. The complainant deposed that he had returned all the documents to the accused as he asked for them. Apart from this statement, there is no material on record to indicate anything with respect to the existence of the original documents. The existence of offending material is essential for connecting it with its author.
30. The copies of the offending documents were sent to railways for verification and the same were indeed found to be forged. However, mere conclusion of forgery with respect to those documents would not be enough until and unless a causal link between the accused and the false documents is established on the basis of cogent evidence. The absence of original documents also strikes at the root of the allegation of forgery. As noted above, creation of false document forms the core ingredient of forgery and in the absence of the document alleged to be false, no such allegation could be proved. PW7 has categorically deposed that the complainant provided him the copies of the offending documents and the original documents were never recovered in the case.
31. To summarize, what I have here is a case wherein the prosecution has failed to prove the receipt of any amount whatsoever by the accused, any live link between the accused and the offending documents, any nexus between the accused and the other alleged FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 18 19 beneficiaries who received certain amounts in their bank accounts.
32. In view of the above discussion, I am of the considered opinion that the prosecution has failed to discharge its burden. The material ingredients, especially the element of delivery, essential for proving the offence in question have not been proved. Accordingly, the accused Vikram Kumar stands acquitted from all the charges levelled against him.
33. Original documents, if any, lying on the file be released to the acquitted person forthwith upon due verification.
34. File be consigned to the Record Room after due compliance and as per rules.
Digitally signed by
YASHDEEP YASHDEEP CHAHAL
CHAHAL Date: 2023.03.21
16:06:25 +0530
Announced in the open Court (YASHDEEP CHAHAL)
On 21st March, 2023. M.M.01 : PHC : NDD.
FIR No. 308 of 2015 State Vs. Vikam Page No. 1 of 19