Delhi District Court
State vs Darshan Singh on 14 January, 2025
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Darshan Singh
FIR No : 169/1985
U/s : 420/468/471/174A/34 IPC IPC
P.S. : Domestic Airport
1. CNR No. of the Case : DLSW020232032022
2. Date of commission of offence : 04.12.1985
3. Date of institution of the case : 13.05.2022
4. Name of the complainant : Major Singh
5. Name of accused, parentage & : Darshan Singh
address S/o Late Butta Singh
R/o WZ-139, Sant
Garh, Tilak Nagar,
Delhi.
6. Offence complained of : 420/468/471/174A/34
IPC
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 14.01.2025
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State
Mr. Tajinder Singh, Ld. Counsel for accused.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 1 of 24
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on unknown date, time and place, accused in connivance with one Balvinder Singh dishonestly induced complainant to deliver Rs.15,000/- on the pretext that he would help him in clearing his passport bearing no.Q9J8258 at the airport so as to enable him to board the flight to Cairo, Egypt by putting a forged stamp of Protector of Emigrants (POE) in his passport intending that the said document shall be used to the purpose of cheating and accused in connivance with Balvinder Singh dishonestly used the forged Protector of Emigrants stamp as a genuine which they knew to be a forged stamp and accused thereby committed the offence punishable under section 420/468/471/34 IPC for which FIR no.169/1985 was registered at the police station Domestic Airport, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter called as, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused person was filed. The Ld. Predecessor of this court took the cognizance against the accused person and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Further, accused failed to appear during the pendency of case and he was declared FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 2 of 24 proclaimed offender by the concerned court and file was consigned to record room. Upon apprehension of accused on 13.05.2022, accused was produced before the concerned court and the case file was revived. On finding a prima facie case against the accused person, charge under Sections 420/468/471//34 IPC of IPC was framed against the accused on 01.06.2022 and under Section 174A IPC was framed on 16.09.2023. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Major Singh PW-2 Retd. ACP Mahender Singh PW-3 Retd. ACP Prakash Chandeer Mann PW-4 Retd. SI Ram Gopal PW-5 Devender Pratap Verma PW-6 HC Jasbir Singh DOCUMENTARY EVIDENCE Ex.PW1/A Complaint Ex.PW1/B Rukka Ex.PW1/C Seizure memo Ex.PW2/A Embarkation card and air ticket Ex.PW3/A Personal search memo Ex.PW3/B POE on stamp on 19.03.1986 Ex.PW5/A Certificate u/S 65 of Indian Evidence Act Ex.PW6/A Arrest memo Ex.PW6/B Personal search memo Ex.PW6/C Kalandra ADMITTED DOCUMENTS Ex.PW1/B FIR no.169/1985 dated 04.12.1985 FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 3 of 24 To prove its case, prosecution examined the following witnesses before the file was consigned to record room under Section 299 Cr. P. C., the same are as follows:
4. PW1 ASI Gautam deposed that on 04.12.1985 on the receipt of Rukka sent by SI Mohinder Singh he recorded the formal FIR Ex.PW1/B, rukka Ex.PW1/A. He also seized the travel documents Ex.P1 vide seizure memo Ex.PW1/C, photocopy of the air ticket Ex.P2.
5. PW2 HC Gopi Chand stated that on 05.12.1985, accused Darshan Singh made disclosure statement in his presence Ex.PW2/A.
6. PW3 SI P. C. Maan stated that on 04.12.1985, he received complaint sent by SI Mohinder Singh (immigration) upon which duty officer recorded the FIR Ex.PW1/B and HC Gautam prepared the seizure memo Ex.PW1/C and he arrested accused Darshan and conducted his personal search vide personal search memo Ex.PW3/A. He also received the report of POE stamp on 19.03.1986 which is Ex.PW3/B. The above witnesses PW1 to PW3 were examined under Section 299 Cr. P. C. only as accused was declared absconder whereafter the case file was consigned to record room. After apprehension of accused on 13.05.2022, he was produced before the concerned court and the main case file was called from Record Room Patiala House Court and matter was proceeded from the stage of arguments on charge. In the prosecution evidence, following witnesses were examined.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 4 of 247. PW1 Major Singh deposed that he got his passport registered from Jalandhar in the year 1980-1981. He further stated that one Balwinder Singh, who was a resident of a neighbouring village Dotiyan which was about 5-6 Kilometres away from his village who used to do the work of agent. There was one another person namely Nirvair Singh, who also used to work as an agent with Balwinder Singh. The said Balwinder Singh got introduced to him with Nirvair Singh who was a resident of his neighbouring village. They enticed him that they could arrange to send him to abroad. He further stated that he gave about Rs.10,000/- to Rs.15,000/- to them for arranging to send him abroad and he gave them his passport so that they could arrange for his departure. Thereafter, they arranged for sending him abroad and he took the passport and went to the Delhi Airport where he was apprehended by immigration officers and he was taken to the police station. The police officials had informed him that the immigration stamp was forged and hence he could not be allowed to travel on the said passport. Thereafter, he took the police officials to the quarter of Balwinder Singh and Nirvair Singh in Delhi but they could not be found. Police had recorded his statement and got his signatures on one or two documents. The police seized his passport. PW1 correctly identified his passport bearing no.Q9J8258 as Ex.P1 and accused Darshan Singh present in the court. As PW1 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that accused Darshan Singh was his cousin brother. He denied the suggestion that accused used to work as a sub-agent and used to frequently visit Delhi and that he had given a sum of Rs.15,000/- to accused Darshan Singh for arranging to send him FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 5 of 24 to Egypt. He further denied the suggestion that the forged POE stamp was marked on his passport by accused Darshan Singh in connivance with the said Balwinder Singh. He further denied the suggestion that he had handed over his original passport to accused Darshan Singh for immigration clearance and that he was deposing falsely to save accused Darshan Singh as he was his cousin brother. In the cross-examination, he stated that he did not give any written complaint to the police. The police officials had not read over his statement to him. PW1 further stated that accused Darshan Singh used to work as a driver at the time of incident and is still doing the same work as on today.
8. PW2 Retd. ACP Mahender Singh deposed that on 04.12.1985, one Sardar Jagtar Singh came to his counter for immigration clearance and presented his passport, boarding pass and air ticket. Upon checking the passport, he noticed that the protector of immigrant stamp affixed on the passport seemed to be fake. Upon inquiry from Jagtar Singh, he said that the stamp had been affixed by one Balwinder Singh who was introduced to him by his cousin Darshan Singh. On this, a complaint was sent to SHO, PS Palam Airport for registration of FIR, alongwith the accused Jagtar Singh and passport, boarding pass and air ticket through Ct. Ram Gopal. The witness correctly identified the complaint Ex.PW1/A, passport of accused Major Singh and has pointed out towards the fake stamp of protector of immigrants at page no.29 Ex.P1 (colly). The witness stated that the name of the accused was Major Singh and he had mistakenly referred to him as Jagtar Singh as about 37 years have elapsed since the incident. The witness correctly identified the embarkation card and air ticket as Ex.PW2/A (colly).
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 6 of 249. PW3 Retd. ACP Prakash Chander Mann deposed that on 04.12.1985, Ct. Ram Gopal came to the police station from Immigration and brought one pax Major Singh alongwith his passport, boarding pass, embarkation card and a tehrir written by SI Mahender Singh and got the present FIR registered which was thereafter handed over to him for investigation. During investigation, it was found that the passport of Major Singh was genuine. As no fault of Major Singh could be identified in the initial investigation, hence he was discharged. During investigation, the aforesaid documents were seized. He recorded the statement of witnesses and got verified the POE stamp from the office of Protector of Emigrants, Jaiselmer House, Delhi and received their reply upon his request Ex.PW3/B itself that the signatures and stamp of Protector of Emigrants, New Delhi at page no.29 of the passport were forged. During investigation, accused Darshan Singh, who was an agent, was arrested and personally searched. During investigation, even after much efforts the forged stamp which was used by the accused persons could not be found and neither the co-accused Balwinder Singh who was stated by accused Darshan Singh, to be the one who affixed the same on the passport of Major Singh was not found. As the investigation had already been completed, he prepared the charge-sheet and filed before the court for adjudication. The witness correctly identified accused Darshan Singh present in the court. In the cross-examination, he stated that he recorded the statement of Major Singh. He had written the same in his own handwriting. He recorded the disclosure statement of accused Darshan Singh in the day time, however, he did not remember the exact time at which the same was recorded. He had gone through the police file prior to the recording of his evidence as FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 7 of 24 the matter pertains to the year 1985 and he had investigated the same about 37 years ago. The arrest memo of accused was not on record. Nor any DD entry regarding the arrest of accused was on record. Other than the statement of Major Singh, there was nothing on record to establish that the accused Darshan Singh was involved in the incident.
10. PW4 Retd. SI Ram Gopal, deposed that on 04.12.1985, he took a tehrir handed over to him by SI Mahender Singh, Immigration along with the custody of the accused Major Singh, one passport bearing no. Q918258 which belong to Major Singh and upon it at page no.29, one fake stamps protractor of immigrate was there he also took the boarding card of flight no. 481, one Embarkation card bearing No. ACNo. 0002809 and one ticket bearing no. 131- 9452-210-159 in the name of Major Singh and handed over the same to duty officer Gautam, No. 35P. The documents were seized. IO SI PC Mann recorded his statement and thereafter, he was discharged. In the cross-examination, he stated that the case is about 37 years old and he had mentioned the details after going through the FIR.
11. PW5 Devender Pratap Verma deposed that he was appearing in the court on behalf of Regional Passport Office, Jalandher, Punjab. He produced the record (photocopy) of passport no. Q918252 issued dated 07.07.1981 as per the record the above said mentioned passport was issued in the name of Sh. Major Singh S/o Sh. Sharwan Singh. The photocopy of the above said record taken on record as Mark (colly) and certificate 65B of IEA as Ex.PW5/A. In the cross-examination, he stated that at the time of preparation of above said passport he was not present at the office where the above said passport was made. He did not know FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 8 of 24 the name of the officer who issue/made the above said mentioned passport and he did not know who made entry in PER register regarding the passport at serial no.6078 PER at Point B.
12. PW6 HC Jasbir Singh deposed that on 13.05.2022, he received secret information from secret informer regarding the PO (accused). He also came to know that accused was declared PO by the concerned court in FIR no.169/85 PS Domestic Airport on 02.04.1994. Thereafter, he and Ct. Rohtas alongwith secret informer reached near Keshav Pur Subzi Mandi, Tilak Nagar. After reaching there, secret informer correctly identified the accused and pointed out towards him and thereafter, secret informer left the spot. Ct. Rohtash apprehended the accused. Thereafter, he arrested accused u/S 41.1 (c) Cr. P. C. vide arrest memo Ex.PW6/A and conducted personal search of accused vide personal search memo Ex.PW6/B. Thereafter, Ct. Rohtash Singh alongwith accused went to Sanjay Gandhi Hospital, Mangol Puri for medical examination of accused at his directions. After medical examination of accused, Ct. Rohtash and accused reached at PS Nangloi. Thereafter, he produced the accused before concerned court and concerned court sent him to JC. He also shared the information (arrest of accused) with DO, PS Domestic Airport. He also prepared kalandra regarding the same Ex.PW6/C. The witness correctly identified accused present in court. In the cross-examination, he stated that he alongwith Ct. Rohtash and secret informer reached at the spot at about 12:30 pm. When we reached at the spot, some public persons were also present there at that time. He did not record statement of any public person who were present at the spot at the time of arrest of accused. He did not serve any notice upon the public persons for FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 9 of 24 not joining the investigation. He left the spot finally at about 01:00 pm.
13. On account of admission of accused u/s 294 Cr.P.C, remaining witnesses in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined, hence, PE was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
14. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded on 29.07.2024 without oath under section 281 r/w 313 CrPC, wherein he has stated that complainant was his cousine brother and one night prior to the departure of complainant, complainant had stayed at his place. Accused further stated that he had no knowledge as to how and from whom complainant procured his travelling documents. Accused further stated that he never met other person namely Balwinder Singh and Nirvair Singh ever. Accused stated that he was innocent and had falsely been implicated in the present case. He further stated that he did not want to lead defence evidence.
FINAL ARGUMENTS
15. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 10 of 2416. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
17. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the identity of the accused being the driver of the offending vehicle is not established and prosecution has failed to discharge the burden cast upon it . As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
18. Accused has been charged under the following provisions which are as follows:
Section 420. 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 468. Forgery for purpose of cheating. --Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either de- scription for a term which may extend to seven years, and shall also be liable to fine.FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 11 of 24
Section 471. Using as genuine a forged- 1[document or electronic record].
--Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].
"174A .Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
19. The allegations levelled against the accused are segregated into two parts, firstly pertaining to offences related to section 420/468/471/34 IPC and second pertaining to offence related to section 174A IPC.
20. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the Court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
APPRECIATION OF EVIDENCE
21. The first set of allegations revolves around commission of offence under Sections 420/468/471/34 IPC, in which prosecution has to prove that the accused dishonestly induced the complainant Major Singh to deliver him Rs.15,000/- on the pretext of getting his passport cleared to enable the complainant to board the flight to Cairo, Egypt by committing forgery of the Protector of FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 12 of 24 Emigrants (POE) stamp on the passport of complainant knowing that the stamp used by the accused in connivance of other co- accused was forged and despite the same used the said forged stamp of POE as genuine.
22. According to Section 415 of the IPC, cheating is defined as deceiving an individual fraudulently or dishonestly in order to persuade that person to deliver or consent to keep the property. That when a person fraudulently, dishonestly, or knowingly encourages another person to do or omit something that he would not have done if he hadn't been misled, and the act causes damage to that person's body, mind, reputation, or property, that individual is said to cheat. Literal meaning of the word cheating is that it is done in order to gain profit or an advantage from another person by using some deceitful means. The person who deceives another knows for the fact that it would place the other person in an unfair situation.
23. The section is divided into two distinct clauses. Under the first clause, the person deceived must have been fraudulently or dishonestly induced to deliver property. The second clause does not require the inducement to be fraudulent or dishonest. But it requires that by reason of the intentional inducement, damage or harm in body and mind, reputation or property was caused to the person deceived. Thus, cheating may be committed in either of the two ways. Cheating is punishable under section 417 IPC.
24. For the purpose of proving the offence under Section 420 IPC, prosecution was mandated to prove that the accused Darshan Singh deceived the complainant Major Singh by inducing him to deliver an amount of Rs.15,000/- for enabling the passport of the FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 13 of 24 complainant with stamp of POE for boarding the flight of Cairo, Egypt.
25. As per the complainant / PW1, he got his passport registered from Jalandhar in the year 1980-81 and he got into contact with one Balwinder Singh resident of his neighboring village who introduced him further with one Nirvair Singh as both worked as an agent. PW1 categorically stated that they both induced him stating that they would arrange for sending him abroad and accordingly, PW1 gave Rs.10,000/- to Rs.15,000/- to them and further gave his passport to both the said persons for arranging his departure. PW1 further stated that thereafter he took his passport to Delhi Airport where he was apprehended by the immigration officers and he was taken to the police station where police officials informed him that his immigration stamp was forged. PW1 further stated that thereafter, he took the police officials to the quarter of Balwinder Singh and Nirvair Singh in Delhi where they both were residing but both of them were not found there. Thereafter, police recorded his statement and seized his passport. PW1 correctly identified his passport as Ex.P1 and also identified accused Darshan Singh.
26. As complainant PW1 did not state anything against the accused, accordingly Ld. APP was granted permission to cross-examine him and in the cross-examination by Ld. APP, complainant admitted that accused Darshan Singh is his cousin and further denied all the suggestions put by Ld. APP implicating the accused person. Perusal of the said testimony of PW1 clearly reveals that he did not support the prosecution case on material terms. Further, in the cross-examination by the Ld. Defence Counsel PW1 stated that he did not give any written complaint to FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 14 of 24 the police and that the accused was working as a driver at the time of incident.
27. At the outset, the entire narrative of prosecution case hinges upon the testimony of PW1 being a victim of alleged cheating and forgery done on his passport. Nevertheless, as noted hereinabove PW1 did not make even a slight implication against the accused person in his testimony as he did not make any imputation against the accused or role played by the accused in the entire process of him getting travel clearance for his departure to Egypt. Accordingly, the deposition of PW1 accords no support to the prosecution as far as indictment of accused person qua the Section 420 IPC is concerned. This cast a fatal blow to the case of prosecution as there is no other witness, either ocular / documentary, direct or circumstantial on record to show involvement of accused Darshan Singh in the alleged incident. PW1 has not made any implication against the accused stating that any wrongful loss or deception was played by the accused against him.
28. Further, the offence of 468 IPC against the accused shall be attracted by proving that accused committed forgery by putting false stamp of Protector of Emigrants (POE) on the passport of complainant intending the said document to be used for the purpose of cheating whereas for Section 471 IPC it has to be shown that accused in connivance with other co-accused dishonestly used the forged POE stamp as genuine which he knew to be a forged stamp.
29. The making of false documents by a person is defined u/s 464 IPC. As far Section 465 IPC is concerned, this provision lays FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 15 of 24 down the punishment for offence of forgery. The offence of forgery has been defined u/s 463 IPC as making of any false documents or electronic record or part thereof with an intent to cause damage or injury to public or any person, or to support any claim or title or to cause any person to part with the property or to enter into any express or implied contract or with the in-tent to commit fraud or that fraud may be committed.
30. The basic elements of forgery are:
(a) The making of a false document or part of it and;
(b) Such making should be with such intention as is specified in section, viz.,
(i) To cause damage or infringe to the public or any person.
(ii) To support any claim or title.
(iii) To cause any person to part with any property.
(iv) To cause any person to enter into expressed or implied contract or;
(v) To commit fraud or that fraud may be committed.
31. A full bench of Supreme Court in Ram Narayan Popli v. CBI, (2003) 3 SCC 641, had occasion to deal with the ingredients of forgery and while dealing with this question, the court observed as follows:-
"The first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any communities."
32. The court further observed that "the definition of the offence of forgery declares the offence to be completed with a false document is made with specified intention.
The questions are (I) is the document false, (ii) is it made by the accused and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 16 of 24 guilty." The aforesaid observations of the Supreme Court made it amply clear that in order to constitute forgery, the first ingredient, which requires to be established is making of a false document. While dealing with question of making of false document, Supreme Court in Mohd. Ibrahim & Ors. v. State of Bihar (2009) 8 SCC 751, held as under:-
"In short, a person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tempered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his sense."
33. The prosecution is relying on the testimony of PW3 Retired ACP Prakash Chander Maan and PW5 Devender Pratap Verma for proving the charges under Sections 468/471 IPC. PW3 stated that on 04.12.1985 Ct. Ram Gopal came to the police station from immigration along with one passenger Major Singh alongwith his passport, boarding pass, embarkation card whereafter he got registered the present FIR. PW3 further stated that during investigation, he found that the passport of passenger Major Singh was genuine. PW3 further stated that he got the POE stamp verified from the office of Protector of Emigrants, Jaisalmer House, Delhi whereafter he received their reply on his request letter itself stating that page no.29 of the passport of passenger/PW1 was forged, the said letter is Ex.PW3/B. PW3 further stated that thereafter he arrested accused Darshan Singh as an agent. However, despite much efforts the forged stamp used by the accused person was not found nor the other co-accused person Balwinder Singh was traced. While PW5 testified regarding the verification of the passport of complainant stating that the passport no.Q918252 issued dated 07.07.1981 in the FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 17 of 24 name of Major Singh accordingly, passport was found to be genuine.
Perusal of the testimony of both PW3 and PW5 reveals that passport of passenger PW1 was found to be genuine. However, upon verification the POE stamp on page no.29 of the passport was found to be forged.
34. Further as per the prosecution, during investigation, the documents that is the POE stamp as visible in the passport of the complainant were verified from the office of Protector of Emigrants, Jaisalmer House, Delhi and upon receiving their reply that the said stamp was found to be forged. PW3 stated that he sent the letter Ex.PW3/B upon which the reply was given. Perusal of the same reveals that the reply was given by Protector of Emigrants namely Anand Hari dated 19.03.1986. The said witness was cited as a prosecution witness as per the prosecution witness list. However, despite various efforts that said witness was not served and traceable and the records pertaining to him as well as the record qua the Protector of Stamp working on the date mentioned at page no.29 of the passport could not be procured. The said witness as mentioned at serial no. 7 of the prosecution witness list could not be traced despite various correspondences received from the concerned Ministry of the Government of India and accordingly vide order sheet dated 30.04.2024 finally, the said witness was dropped from the prosecution witness list as no records or details were procured from the concerned ministry. Therefore, there is no evidence on record establishing that the POE stamp as visible on the page 29 of the passport of the complainant as seized was forged.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 18 of 2435. Before proceeding ahead, it is to be mentioned that the Protectors of Emigrants are responsible for granting emigration clearance to the intending emigrants as per the procedure prescribed under the Emigration Act, 1983. PGE under Ministry of External Affairs is the authority responsible for protecting the interest of Indian workers going abroad. PGE is also the registering authority to issue Registration Certificate to the Recruiting Agents for overseas manpower exporting business.
36. From the above discussion, it is evidently clear that the stamp of Protector of Emigrants (POE) on the passport of complainant in question was never issued by the Protector of Emigrant as per the investigation however, prosecution failed to prove the same as per the provisions of Evidence act as the relevant person and record could not be brought before the Court and thereby not establishing the fact that stamp of Protector of Emigrants (POE) on the passport of complainant was a fake or forged document. Furthermore, it does not exonerate the prosecution to prove that same was recovered from accused Darshan Singh or that accused prepared the same. There is no admissible evidence on record to establish that the stamp of POE was false or that it was made by the accused or the manner in which the accused forged the stamp of POE.
37. Furthermore, to bring home an offence under section 471 of IPC the prosecution is to prove that the document concerned was forged and that accused used such document and that he knew or had reason to believe that the same was forged and he nevertheless used the same as genuine one fraudulently or dishonestly. The allegations against accused are that he had fraudulently or dishonestly used the forged stamp of Protector of FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 19 of 24 Emigrants (POE) on the passport of complainant as genuine despite having the knowledge or reason to believe that it was a forged document and had produced the same to the investigating officer during the course of investigation of the present case.
38. The allegation of the prosecution regarding intentionally creation of false document i.e. stamp of Protector of Emigrants (POE) on the passport of complainant is not proved beyond reasonable doubt as discussed in the preceeding paragraph thereby the factum of use of said false document by the accused with the knowledge of it being false does not arise as without concrete evidence to demonstrate that the document is false, allegations regarding its wrongful use lack a foundational basis. The initial burden of proof by the prosecution has not been discharged hence, the ingredients of section 471 are not made out. Accordingly, accused Darshan Singh is acquitted for charge u/s 420/468/471 IPC.
39. The Second set of allegations which revolves around the accused is commission of offence under Section 174A IPC.
Before proceeding further, it is relevant to produce the provision of Section 82 Cr.PC. The same is as under:
"Proclamation for person absconding-
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows: -FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 20 of 24
(i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-
house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub- section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day".
40. PW6 is a formal witness examined by prosecution, who stated that on 13.05.2022, he received secret information regarding PO accused whereafter he arrested the accused vide arrest memo vide Ex.PW6/A and produced the accused before the concerned court. No other witnesses have been examined by the prosecution except PW6 for establishing the charges under Section 174A IPC.
41. After going through the case file and upon hearing the Ld. APP for the State and the Ld. defence counsel, this Court has reached to the conclusion that the prosecution has failed to duly prove its case against the accused for commission of the offence punishable under Section 174-A of Indian Penal Code on the following grounds.
42. Declaring the accused as proclaimed person by the concerned Ld. Court proves the satisfaction of the concerned court that the accused has been avoiding service or concealing himself deliberately and also that the proceedings under section 82 has FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 21 of 24 been satisfactorily been carried out. As per Section 82(3) of the Cr.PC, the satisfaction of the concerned court is the conclusive evidence that the requirements of this section have been complied with and that the proclamation is published on such date. However, once accused was declared P.O, prosecution of the accused who was charged under section 174 A IPC was under
the bounden duty to prove each ingredient of the section 174A IPC. For that examination of the process server who executed the process under section 82 Cr. PC becomes an important and relevant evidence and his examination is not only relevant for the prosecution evidence, it is important for the accused as well so as to afford him an opportunity for cross examination the process server.
43. In the present case, before closing of the prosecution evidence, Ld. APP stated that there was no document relating to the process server who executed the process under section 82 Cr.PC and accordingly prosecution evidence was closed.
Here, it needs to be highlighted that the case record was requisitioned from Patiala House Court as the case file was consigned to record room as accused was declared PO in the present case FIR vide order dated 02.04.1994. Although the statement of process server who executed the process under 82 Cr.PC must have been with the case file but the same are not. Court is mindful of the fact that the matter relates to about 20 years back and it was the duty of the concerned official to maintain such record. However accused cannot be burdened with liability if the prosecution fails to establish the ingredients of the applicable offence. This principle ensures that justice is not derailed by procedural lapses or time gaps and that the focus FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 22 of 24 remains on the substantive merits of the case, protecting individuals from wrongful convictions based on insufficient or unsubstantiated claims.
44. In the criminal trial it is duty of the prosecution first to establish its case, before the onus shifts on the accused. Prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. In the absence of the statement/ report of the Process server who executed the process under section 82 Cr.PC and without examining process server who executed the process under section 82 Cr.PC against the accused which is not only important for the prosecution case but it would have also afforded an important opportunity to the accused to cross examine him, accused lost a valuable right to test the testimony of the said witness on the anvil of cross examination. The only evidence led by the prosecution is PW6 who arrested the accused later on. There is no evidence on record led by prosecution to show that the process server went to the admitted address of the accused person and thereafter duly executed the process under Section 82 Cr.PC including the publication of proclamation. Accordingly, there is no substantive evidence on record to show that accused failed to adhere to the directions of proclamation which was issued in accordance with Section 82 Cr. P.C. CONCLUSION
45. The upshot of the discussion, and the surrounding circumstances in which the accused Darshan Singh was apprehended and joined in the investigation, prosecution has not been able to establish beyond reasonable that accused Darshan Singh cheated FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 23 of 24 complainant by conniving with other co-accused by forging the stamp of protector of emigrants in the passport of the complainant for enabling him to board the flight to Cairo, Egypt. Prosecution also failed to establish and prove against the accused the offence under section 174A IPC.
46. Prosecution has the bounden duty to discharge the initial onus before it can shift on to the other party. Several reasonable doubts have emerged in the narrative put forth by prosecution as analyzed hereinabove. The basic ingredient of Section 420/468/471/174A/34 IPC has not been proved and the inescapable conclusion is that the accused Darshan Singh is entitled to benefit of doubt.
47. Accordingly, this Court hereby accords the benefit of doubt to the accused Darshan Singh for the offence punishable u/s 420/468/471/174A/34 IPC IPC and holds the accused not guilty of commission of the said offence. Accused Darshan Singh s/o Buta Singh is thus, acquitted of the offence u/s 420/468/471/174A/34 IPC.
Announced in the open court on 14.01.2025 in the presence of the accused.
(Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/14.01.2025 Note:- This judgment contains 24 pages and each page has been signed by me.
(Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/14.01.2025 FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 24 of 24