Delhi District Court
State vs . : Yogesh on 2 July, 2011
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. : YOGESH
FIR No : 559/95
U/S : 471/473 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 56/2
2. Unique ID of the Case : 02401R00696019997
3. Date of Commission of Offence : Unknown
4. Date of institution of the case : 02.05.1997
5. Name of the complainant : Sh. M.L. Gupta
6. Name of accused, parentage & : Yogesh
S/o Sh. Ram Narain Mandal
R/o 380, School Road, Nawada,
Uttam Nagar, Delhi.
7. Offence complained U/S : 471/473 IPC and Indian Medicine
Central Council Act,1970
8. Plea of Accused : Pleaded Not Guilty.
9. Final Order : Acquitted
10.Date of Final Order : 02.07.2011
J U D G M E N T
1 The Prosecution filed a Chargesheet against the accused with the allegation against the accused that the accused claiming himself a qualified FIR No. 559/1995 STATE V/s YOGESH PAGE No. 1/15 Doctor but he was not a qualified doctor but was only a quack. It was further alleged that he was claiming to be holding various degrees which are fake degrees. Therefore, a Chargesheet U/s 471/473 IPC R/w provisions of Indian Medicine Center Council Act 1970 was filed against the accused. 2 After the completion of the investigation by the police a chargesheet against the accused was filed for the commission of offence U/s 471/473 IPC R/w provisions of Indian Medicine Center Council Act 1970. Vide order dated 02.05.1997 my Ld. Predecessor took cognizance of the offence and summoned the accused. After the accused had appeared in the Court, in compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to accused.
3 Later on, vide Order dated 20.04.1998 charge for offences under sections 471/473 and 419 IPC was framed by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
4 In order to prove its case against the accused, the Prosecution examined eight witnesses in all.
FIR No. 559/1995 STATE V/s YOGESH PAGE No. 2/15 5 PW1 Malkhan Singh deposed that in the year 1995 he had rented out
his shop situated at Shyam Park, Navada to accused Dr. Yogesh and the rent was used to recovered by his brother namely Sagar Singh. The witness was not crossexamined by the accused.
6 PW2 Sagar Singh deposed that he had gave one room set and a shop to accused Yogesh on rent for which he charged rent of Rs.1500/. The witness was not crossexamined by the accused.
7 PW3 HC Naresh Kumar was Duty Officer in this case who registered the FIR and proved the same as Ex.PW3/A. He was not crossexamined by the Ld. Counsel for the accused.
8 PW4 Dr. Mohan Lal, CMO, Directorate of Health Services proved the letter No.30/1/92/DHS/ISM/14859 dated 24.05.1995 as Mark PW4/A. He was also not crossexamined by the accused.
9 PW5 Dr. Nand Kishore, Deputy Director of ISM had deposed that he had been authorised by Dr. R.N.Baishya, Director, Health Services, Govt. of NCT to verify the signatures of Dr. S.K. Chaudhary , Ex. Director of Health FIR No. 559/1995 STATE V/s YOGESH PAGE No. 3/15 Services, Govt. of NCT and proved letter as Ex.PW5/A. In his cross examination, he deposed that the proceedings of the case were initiated by the then Director and not by him. He further deposed that he had personally investigated the matter but he had no knowledge about any investigation conducted by the Director Sh. S. K. Chaudhary. In the voluntary he deposed that Varanasi Sanskrit Viswavidhyalaya was not mentioned in the Schedule of Central Council of Indian Medicine Act 1990. he did not bring the schedule in the Court.
10 PW 6 Retd. SI Surat Singh was the IO of the case and proved the FIR as Ex.PW6/A, Statement of the accused as Ex.PW6/B, Personal Search of the accused as Ex.PW6/C. He was not crossexamined by the accused. 11 Initially the said witness was not cross examined by the accused however, later on an application U/s 311 Cr.PC the witness was recalled for crossexamination. In his cross examination, he stated that he has no knowledge if the complainant M.L. Gupta had filed one complaint against the accused earlier also in which the accused Yogesh was also an accused. He further stated that on inquiry, it has come to his notice that M.L. Gupta had filed a case U/s 325 IPC against accused Yogesh which was investigated by FIR No. 559/1995 STATE V/s YOGESH PAGE No. 4/15 some other IO. He further stated that he did not receive any paper from the possession of accused Yogesh. He admitted that he did not get the verifications of documents Mark A to Mark D from the concerned Institution whether they are genuine or fake. He further admitted that he never came in the possession of the originals of the said documents at any point of time during the investigation. He denied the suggestion that the accused was falsely implicated in connivance of complainant M.L. Gupta. 12 PW7 Ct. Satpal participated in the investigation alongwith the IO and deposed about the investigation conducted by the IO. He was also recalled U/s 311 Cr.PC for cross examination by the accused and cross examined. 13 PW8 Sh. Balwant Rai Arora was the Manager of one Delhi Degree College at Uttam Nagar who deposed that accused inquired from him about the B.A./M.S. Degree and he told the accused that he did not have such degree in his Institute. He denied the suggestion that accused did not personally contact him for the same.
14 in his statement U/s 313 Cr.PC the accused denied that he was claiming himself to be a doctor on the basis of forged degrees. He further FIR No. 559/1995 STATE V/s YOGESH PAGE No. 5/15 denied that he was falsely implicated in this case at the instance of one M.L. Gupta who earlier also filed a false FIR bearing no.512/93 U/s 325 IPC wherein he was acquitted.
15 I have heard the arguments as advanced by the Ld. APP for the State and the Ld. Counsel for the accused.
16 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
17 On the other hand, the Ld. Defence Counsel has argued that no incriminating material has come on the record against and the prosecution has miserably failed to prove the case beyond reasonable doubt. It has been further submitted that in this case, the prosecution has failed to prove the essential ingredients of the offence U/s 411 IPC, therefore, there is nothing on the record to suggest that the accused committed the offence as alleged by the prosecution against him. He further submits that there are FIR No. 559/1995 STATE V/s YOGESH PAGE No. 6/15 reasonable doubts in the testimonies of the prosecution witnesses rendering them to be unreliable and unbelievable.
18 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
19 The accused in the present case has been charged with offence under Section 419/471 & 473 IPC. The essential ingredients of the offences are as under:
The Essential Ingredients of Offence U/s 419 of IPC (1) There was deception by the accused;
FIR No. 559/1995 STATE V/s YOGESH PAGE No. 7/15 (2) The accused fraudulently or dishonestly induced the complainant;
(3) It was intentional;
(4) The accused thereby cheated the complainant;
(5) He did so by pretending to be some other person. 20 The offence of Cheating has been defined U/s 415 of IPC. Section 415 IPC reads as under: Cheating. Whoever, by deceiving any person,
fraudulently or dishoneslty induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act omission causes or is likely to cause damage or harm to that person in body, mind,reputation or property, is said to "cheat".
21 The offence of Cheating by personation has been defined U/s 416 of IPC. Section 416 IPC reads as under:
Cheating by personation. A person is said to "cheat by FIR No. 559/1995 STATE V/s YOGESH PAGE No. 8/15 personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
22 Section 471 IPC reads as under:
Using as genuine a forged document. Whoever fraudulently or dishonestly uses as genuine any (Document or electronic record) which he knows or has reason to believe to be a forged (document or electronic record), shall be punished in the same manner as if he had forged such (document or electronic record). 23 Section 473 IPC reads as under:
Making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise. Whoever makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under any section of this Chapter other than section 467, or, with such intent, has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit, shall be FIR No. 559/1995 STATE V/s YOGESH PAGE No. 9/15 punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 24 Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on the record which would warrant the conviction of the accused in the aforesaid Sections for which the accused has been charged with. It is to be further seen whether the Prosecution has brought the evidence on the record on the basis of which the accused can be convicted on the touch stone of golden principal of criminal jurisprudence that the guilt of the accused has been proved beyond the reasonable doubt.
25 Henceforth, I shall discuss chargewise, whether the Prosecution has been able to prove the case against the accused. Let me first discuss the charge against the accused U/s 419 IPC. To prove the case against the accused under this section the Prosecution was supposed to prove on the record that firstly, there was deception of a person by the accused by making a false or misleading representation or by other action or omission, secondly, fraudulent or dishonest inducement to that person to either deliver any property or to consent to the retention by any person or to FIR No. 559/1995 STATE V/s YOGESH PAGE No. 10/15 intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceive and which act or omission causes or he is likely to cause or damage or harm to that person in body, mind, reputation or property.
26 To cover the case U/s 419 IPC the Prosecution is required to prove that the accused committed the cheating by pretending himself to be some other person whether the individual impersonated is a real or imaginary person.
27 Now, it is to be seen whether the prosecution has brought such evidence on the record which would warrant the conviction of the accused U/s 419 IPC. In my considered opinion the Prosecution has miserably failed to prove the case against the accused U/s 419 IPC. There is not a scintilla of the evidence against the accused on the record. None of the witnesses examined in this case by the prosecution has deposed that the accused represented himself to be qualified doctor and on acting such representation by the accused he has been deceived to deliver the money to him for the medicines or the medical advice given by the accused.
Complainant M. L. Gupta has not been examined by the Prosecution despite FIR No. 559/1995 STATE V/s YOGESH PAGE No. 11/15 sufficient opportunities. No other witness has been cited. PW1 Mal Khan Singh and PW2 Sagar Singh deposed that at different points of time the accused was their tenant. PW1 Malkhan Singh deposed that number of patients used to visit the accused to take medicine and PW2 Sagar Singh deposed that accused Yogesh ran a clinic in a shop rented out to him. However, both the witnesses have not stated that they themselves took the medicine from the accused and under the representation that accused was a qualified doctor. Their evidence is too vague and scanty and thus no reliance can place on their evidence. Even if, the accused claimed himself to be a qualified doctor then also no case under section 419 IPC would have been made out unless and until the accused would have claimed that he is particular doctor known by a particular name whereas he would not have been as such, then only a case against the accused for commission of offence under section 419 IPC could have been made out. In my considered opinion, the Prosecution has not brought any evidence against the accused to sustain the charge against him U/s 419 IPC. Hence, I conclude that the prosecution has failed to prove the offence U/s 419 IPC. 28 As far as Section 471 IPC is concerned to prove the charges against the accused, the prosecution was require to prove that the accused FIR No. 559/1995 STATE V/s YOGESH PAGE No. 12/15 fraudulently or dishonestly used a document or a electronic record as genuine and further that the accused knew or have reason to believe the same to be a forged one. What amounts to forgery has been defined in section 463 IPC which says that a person is said to commit forgery if he makes a false document or false electronic record of part of the same with intend to do things as mentioned in said section. Section 464 IPC defines when a person can be said to make a false documents or false electronic record.
29 The first condition to prove the case against the accused for the commission of offence U/s 471 IPC is that the accused must have used certain documents or electronic record which is forged and the accused has the knowledge or the reasons to believe the same. Unfortunately, in the present case no document has been proved on the record by the Prosecution which was found to be forged. PW6 IO SI Surat Singh deposed that the complainant had handed over photocopies of certain certificates of accused Yogesh on the basis of which he was claiming himself a Doctor in Ayurved. PW6 IO SI Surat Singh has also admitted that the documents Mark A to Mark D supplied to him by the complainant M.L. Gupta and he did not receive the document from the accused Yogesh. He further admitted that he did not get FIR No. 559/1995 STATE V/s YOGESH PAGE No. 13/15 the verification of the aforesaid documents and further that he had never come into possession of any document at any point of time during investigation. Therefore, it is clear from the evidence on the record that there is nothing to suggest that the accused Yogesh had used any document as genuine knowing or having reasons to believe the same to be forged. In fact, no document was ever found in possession of accused Yogesh. IO did not get the aforesaid documents verified whether the same was genuine or forged. No witness either has been cited or examined by the prosecution to prove that the documents Mark A to Mark D were forged and not genuine. Therefore, I have no hesitation to say that the Prosecution could not prove the charges against the accused U/s 471 IPC.
30 To prove the charges against the accused for commission of offence U/s 473 IPC, the Prosecution must prove that the accused made or counterfeited or have in possession of any seal, plate or other instrument which is capable of being used for forgery and contention of the accused was committing forgery which is punishable under that Chapter other than Section 467 IPC. Coming back to the facts of the case there is nothing on the record even that the accused was found in possession of any seal, plate or any other instrument capable for being used for committing forgery. As discussed FIR No. 559/1995 STATE V/s YOGESH PAGE No. 14/15 herein above, no evidence is available on the record against the accused to sustain charges against the accused U/s 473 IPC.
31 From the above said discussions, I am of the opinion, that the prosecution has miserably failed to prove the case against the accused on the record. Therefore, accused Yogesh is hereby acquitted of offences U/s 471/473 and 419 IPC, he has been charged with. He be set at liberty forthwith. His bail bonds are canceled. Surety bond is discharged. However, B/Bs furnished by the accused in view of the mandate of section 437A of Cr.P.C shall remain enforceable for a period of six months from today. Original documents, if any, be returned to the concerned parties after the cancellation of the endorsements, if any, after the confirmation of their identity. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 2 JULY, 2011 nd
MM09:WEST:THC
02.07.2011
FIR No. 559/1995 STATE V/s YOGESH PAGE No. 15/15