Delhi District Court
State vs . on 15 October, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 11529/2019
Unique Case ID No. -: DLSW020246072019
FIR No. -: 210/2000
Police Station -: Uttam Nagar
Section(s) -: 420/468/471/34 IPC
In the matter of -
STATE
VS.
SUNIL KUMAR
S/o Late Jagan Lal Sharma
R/o H. No. Village Brijnathpur,
PS Hafizpur, District Ghaziabad (U.P.)
H. No. 485 Devlok Colony,
Swarg Ashram Road
Hapur (U.P.)
.... Accused
1. Name of Complainant : Smt. Chandrawati
2. Name of Accused : Sunil Kumar
Offence complained of or
3. : 420/468/471/34 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 22.03.1999
offence
6. Date of Filing of case : 24.07.2001
7. Date of Reserving Order : 26.09.2022
8. Date of Pronouncement : 15.10.2022
Convicted u/s 420 IPC
9. Final Order : Acquitted u/s 468/471/174A
IPC
Cr. Case No.210/2000 State vs. Sunil Kumar Page 1 of 22
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Anuj Sharma, Ld. counsel for the accused.
This judgment marks the end of a chequered litigation, spanning over two decades. The litigation was prolonged as the presnce of the accused could not be secured. When he entered appearance, he never denied the commission of the offence of cheating, and his defence was that he has later suitably compensated the complainant. Such a defence is no defence in the eyes of law- and the accused is thus convicted for the afresaid offence.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
1. Succinctly, it is the case of the prosecution that the subject property i.e. the property bearing the description of the plot admeasuring 30 sq. yds., bearing no. 22A, Sainik Enclave, Part- III, Khasra No. 15/16/1 was sold by the accused Sunil Kumar to the complainant Manju Devi on 22.03.1999, by way of a chain of documents comprising of GPA receipt, Will, Possession Letter etc., despite him already having sold the same to one Chandrawati on 18.03.1999. It is further the case of the prosecution that this sale was made by the accused to the complainant after forging the documents of the subject property, of which one Ravi Sharma was the owner, or in the alternate, making the sale on the basis of forged documents of the property belonging to the said Ravi Sharma. Accordingly, charge sheet was filed against the accused for the offences punishable under section 420/468/471 IPC. Cognizance of the offences was taken, and the accused was summoned to face trial. However, the Cr. Case No.210/2000 State vs. Sunil Kumar Page 2 of 22 process could not be served upon the accused and ultimately, the accused was declared a proclaimed offender vide order of this court dated 03.09.2011.
2. Thereafter, evidence of public witnesses was recorded under section 299 CrPC. After the evidence of all the public witnesses, the file was consigned to record room. Thereafter, consequent to the apprehension of the accused, the case was revived and supplementary chargesheet under section 174A IPC was also filed against accused. After compliance of section 207 CrPC, charge was framed against the accused for the offence punishable under section 420/468/471/174A IPC. The accused pleaded not guilty to the offences alleged against him and claimed trial.
3. In order to prove its case, the prosecution examined as many as 13 witnesses.
4. PW ASI Jaipal Singh has examined himself as PW-1. It was deposed by PW-1 that he, alongwith SI Anand Prakash, and HC Rajbir went to Hapur, where the accused was apprehended. He also proved the personal search memo of the accused Ex. PW1/A, and the disclosure statement of the accused Ex. PW1/B. He also identified the accused.
4.1 When cross examined by learned APP for the State, in terms of Section 154 of the Indian Evidence Act 1872, PW1 deposed that the sample signatures of the accused Ex. PW1/C were procured in his presence.
Cr. Case No.210/2000 State vs. Sunil Kumar Page 3 of 224.2 In his cross-examination, PW1 deposed that he does not remember registration number of the DD vide which the intimation was sent to PS Hafizpur, Hapur, UP. PW1 further deposed that the IO had asked public witnesses to join the investigation at the time when the accused was apprehended, but none came forward. He deposed that no written notice was served upon such witnesses. He denied the suggestion that all the documents relied upon him were prepared in the police station itself.
5. Prosecution next examined Manju Devi, being the complainant, as PW2. PW2 deposed that she had purchased the subject property from the accused for a consideration amount of Rs.31,000/-, but when she started to raise construction over the said property on 12.04.1999, one Chandrawati approached her and also claimed ownership over the subject property. PW2 deposed that thereafter, she confronted the accused, who assured him that he shall transfer another plot of land to her, in lieu of the subject property. PW2 deposed that the accused, however, did not keep his word, upon which she, along with her husband and Chandrawati, approached the office of Ravi Sharma, who informed them that the documents executed by the accused in her favour are forged, whereas the documents executed in favour of Chandrawati are authentic. PW2 further deposed that she then filed a police complaint Ex. PW2/A bearing her signatures at point A. 5.1 PW2 was also cross examined by Ld. APP for the State in terms of Section 154 Indian Evidence Act, 1872, upon which she Cr. Case No.210/2000 State vs. Sunil Kumar Page 4 of 22 accepted as correct suggestion that the seizure memo Ex. PW2/B bears her signatures at point A. PW2 further deposed that the chain of documents executed in her favour by Sunil Kumar are Ex. PW2/C, and the photocopies of the documents executed by the accused in favour of Chandrawati are Ex. P2.
5.2 In her cross-examination, PW2 deposed that the property dealer Ravi had informed her that the documents executed in her favour by the accused are forged. She denied the suggestion that the accused had returned her money. She further denied the suggestion that a compromise had been struck between her husband and the accused, as per which the entire consideration amount which she had paid to the accused for the subject property, was re-paid to her.
6. Prosecution examined Chandrawati as PW3.
Chandrawati relied upon the documents Ex. PW3/A to Ex. PW3/D. She deposed that on the date of the incident, she had found the complainant Manju Devi on the subject property, and deposed that the dispute was resolved after the property dealer informed them that the document executed by the accused in her favour for genuine, and has executed by him in favour of Manju Devi are false.
6.1. PW3 was not cross-examined despite opportunity.
7. The next witness SI Pushpa Alka was examined by the prosecution as PW5. It is pertinent to mention here that no witness was examined by the prosecution as PW4, in what appears to be an Cr. Case No.210/2000 State vs. Sunil Kumar Page 5 of 22 inadvertent error. PW5 deposed that on 29.03.2000, he was posted at PS Uttam Nagar as a duty officer, and on that day, at about 4:10 PM, the document Ex. PW5/A, being tehrir was handed over to him by ASI Anand Prakash, consequent to which he registered the subject FIR under section 420/467/468/174A IPC, being Ex. PW5/B. PW5 was also not cross examined despite opportunity.
8. PW6 SI Surjit Singh proved the DD No. 92A, containing the information regarding the arrest of the accused by ASI Hansraj PS Hauz Qazi. PW6 was also not cross examined by the accused.
9. SI Hansraj deposed as PW7 that on 14.07.2016, he received secret information regarding the accused who had already been declared a proclaimed offender, and acting upon the information, he along with Ct. Sandeep and Ajay reached near Hapur court, where the accused was apprehended. PW7 deposed that the accused informed him that he could not attend the proceedings emanating from the subject FIR due to change of his address. PW7 proved the arrest memo Ex. PW7/A, the personal search memo of the accused Ex. PW7/B, both of which documents contain his signatures at point A. PW7 further deposed that he had recorded the information regarding the proceedings in the form of DD No. 28 dated 14.07.2016 Ex. PW7/C, and the kalandara Ex. PW7/D. 9.1 In his cross-examination, PW7 deposed that the information regarding the whereabouts of the accused was given to Cr. Case No.210/2000 State vs. Sunil Kumar Page 6 of 22 him by the secret informer telephonically. He deposed that he did not verify the address of the accused as mentioned on the arrest memo. He denied the suggestion that he had apprehended the accused not from outside Hapur Court, but from his house located therein.
10. PW8 HC Sandeep also deposed on the lines of testimony of PW7, with regard to the apprehension of the accused on 14.07.2016.
10.1 In his cross-examination, PW8 deposed that accused was arrested at about 3.00 PM on the date of his arrest near Hapur Court, and thereafter was brought to Delhi.
11. PW9 Ct. Ajay also supported the version of PW7 and PW8 regarding the arrest of the accused.
11.1 In his cross-examination, PW9 also deposed that the accused was rested at about 3 PM on 14.07.2016, after which the accused was brought to Delhi.
12. PW 10 SI Sitaram deposed that he had received information regarding the arrest of the accused vide DD No.90A dated 14.07.2016, Ex. PW6/A after which he prepared the supplementary chargesheet and filed the same in court.
12.1 PW 10 was not cross examined despite opportunity.
Cr. Case No.210/2000 State vs. Sunil Kumar Page 7 of 2213. PW 11 retired SI Dayanand was examed by the prosecution to prove that due execution of the process under section 82 CrPC against the accused. PW-11 deposed that on 02.09.2005, he was interested to execute the said process, where upon he reached the house of the accused at Sainik Enclave. He deposed that when the accused could not be found despite the intervention of the Pradhan of the society Mahesh Sharma, he pasted the copy of the process at the wall of Sehgal Convent School situated in the same locality, and pasted another copy of the process on the noticeboard of the court. In support of his testimony, he relied upon the report Ex.PW 11/A bearing his signatures at point A. 13.1 In his cross-examination, PW 11 accepted as correct the suggestion that he had come to know during the pendency of the proceedings under section 82 CrPC itself that the address of the accused mentioned on the process is incorrect, but still did not inform the IO about the said fact. He further accepted it is correct suggestion that he had pasted the process at the Sehgal Convent School, since the address of the accused could not be located by him. He denied the suggestion that he had not made any effort to trace out the correct address of the accused.
14. SI Rohtash/PW-12 deposed that he was entrusted with the execution of the process under section 83 C.r.P.C., against the accused on 26.07.2006. He deposed that thereafter, he went to the house of the complainant, who provided the address of the accused to be A-42, Part-III, Sainik Enclave, Mohan Garden, but on the said Cr. Case No.210/2000 State vs. Sunil Kumar Page 8 of 22 address one Niranjan Das was found, who said that the accused Sunil Kumar had transferred the said property to him.
14.1 PW 12 relied upon the report prepared by him in this regard being Ex. PW12/A, as well as the statement of Niranjan and Gayathri Devi being Ex.PW12/B and Ex. PW12/C respectively, both bearing is signatures at point A each.
14.2 In his cross-examination, he accepted as correct the suggestion that A-42, Sector-III, Sainik Enclave is a correct address.
15. PE was closed by the prosecution after the examination of these witnesses.
16. The accused was then examined under section 313/281 CrPC. When given the opportunity to explain all the incriminating material appearing against him at trial, accused submitted to the court that he has been falsely implicated in the present matter. He deposed that he had sold subject property to the complainant, but had subsequently settled the dispute with her, and had even paid the settlement amount to the husband of the complainant. He deposed that thereafter he never received any summon or warrant from the court, and was directly apprehended in the year 2016 from his house at Hapur. He opted to not lead DE in the affirmative, and the matter was then fixed for final arguments.
17. However, it was noted by this Court that PW Ravi Sharma was not examined by the prosecution after the apprehension Cr. Case No.210/2000 State vs. Sunil Kumar Page 9 of 22 of the accused, although he was examined earlier under section 299 CrPC. Therefore, in exercise of powers under section 311 CrPC, PW Ravi Sharma was summoned by this Court. The said witness was examined by the prosecution as PW 13.
18. PW 13 deposed that the documents Ex. PW 13/A, Ex. PW 13/E do not contain his signatures, as he does not sign in Hindi. Pertinently, these are the documents dated 08.01.1999, executed between him and the accused.
18.1 In his cross-examination, PW-13 deposed that he had sold the subject property to accused Sunil Kumar by way of GPA, but was unable to recollect, if the same was registered or an unregistered GPA. He deposed that he had sold about 5 to 7 plots out of the said Khasra, and does not remember the khasra number of the subject property.
19. Statement of accused was then recorded under Section 313/181 C.r.P.C. Therafter, final arguments have been heard. Record perused. Considered.
20. Whether the accused is culpable for each of the offences alleged against him shall be dealt with and considered by this court separately 468/471 IPC.
21. 468/471 IPC.
Section 468 IPC provides for the offence of forgery for the purpose of cheating- "Whoever commits forgery, intending that the document or electronic record1 forged shall be used for the Cr. Case No.210/2000 State vs. Sunil Kumar Page 10 of 22 purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
(ii) Section 471 IPC provides for using as genuine a forged document- "Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document".
Now, the offences punishable under section 468 and 471 IPC are anti-thetical to each other, in as much as a person can either be held liable for the offence of forging a document himself, or for using as genuine of document he knows to be forged. However, in order to establish the guilt of the accused under either of the provisions, the prosecution is first required to prove that the transaction in question was based upon a false document.
(iii) Section 464 IPC provides for the definition of a false document- A person is said to make a false document or false electronic record:
First-- Who dishonestly or fraudulently--makes, sign, seals or executes a document or part of a document; makes or transmits any electronic record or part of any electronic record; affixes any digital signature on any electronic record; makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, Cr. Case No.210/2000 State vs. Sunil Kumar Page 11 of 22 signed, sealed, executed, transmitted or affixed by or by the authority or a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly-- who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly-- who dishonestly or fraudulently causes any person, sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of alteration."
This court has first to examine if any false document was created or used by the accused at the time of the subject transaction. The case of the prosecution is that the accused forged the title deed of the subject property in his favour, affixing false signatures of its owner Ravi Kumar Sharma thereon, and then used the said document, to create a false set of documents in favour of the complainant Manju, in order to cheat her and cause her to part with the sale consideration for the subject plot of land.
22. In order to establish this version, the prosecution examined PW 13 Ravi Kumar Sharma, who deposed in his Cr. Case No.210/2000 State vs. Sunil Kumar Page 12 of 22 examination in chief that the documents Ex.PW 13/A to Ex.
PW13/E do not bear his signatures, as he never signs in Hindi language. Pertinently, these documents are the documents on the basis of which the accused claim himself to be the owner of the subject property.
23. Now, in his cross-examination, PW-13 admitted that he had indeed sold subject property to the accused Sunil Kumar Sharma by way of a GPA. It seems absurd that when the predecessor in interest of the accused/PW-13 himself has admitted that he had sold the property to the accused by way of certain documents, why would the accused still create a false document by forging the signatures of the said predecessor in interest?
24. PW-13 Ravi Kumar Sharma also is vague in his testimony. If he had indeed sold the subject property to the accused, he ought to have detailed on what dates, and vide which documents , it was sold to the accused, if the sale was not made vide the documents Ex. PW 13/A to Ex. PW 13/E, stated by him in his examination in chief to be false. The prosecution has also clearly not elaborated as to what the accused would gain by forging a title deed to a property, when the predecessor in interest of the accused has himself admitted that he had sold the same to the latter.
25. In order to bring home the guilt of the accused under these provisions, the prosecution at least should have stated that the accused had handed over the entire chain of documents, including the documents vide which the title of the property was transferred to Cr. Case No.210/2000 State vs. Sunil Kumar Page 13 of 22 him by Ravi Kumar Sharma to Chandrawati earlier, and that the said documents belonged to different date, and thereafter, in order to dupe the complainant Manju, he again forged the title deed of the document by affixing false signatures of Ravi Kumar Sharma on the same, and then transferred the property in favour of Manju. However, the prosecution did not even put forth its case in that manner, let alone prove it.
26. In view of the same, the reliance of the prosecution upon the FSL results is also neither here nor there. The FSR results admittedly state that the signatures of Ravi Sharma on the documents Ex. PW 13/A to Ex. PW 13/E appear to have been affixed not by him, and the deviations are beyond the scope of natural variations and intended disguise. It is further stated in the same that the signatures appear to be affixed by the accused. However, in view of the above discussion, wherein Ravi Kumar Sharma has himself admitted that he had transferred the property in favour of the accused, the opinion of the handwriting expert cannot be given much credence. In any event, the report is at best an expert opinion, and as per Section 45 of the Indian Evidence Act, 1872, only has persuasive value. The opinion of the expert is not binding on this court. At this juncture, this court places reliance on the judgment of the Hon'ble Supreme Court of India in State of Himachal Pradesh Vs Jai Lal And Ors 1999 Supp(2) SCR 318 wherein it has been held, "An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge Cr. Case No.210/2000 State vs. Sunil Kumar Page 14 of 22 to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions".
27. It has further been opined in a catena of judgements that evidence of a handwriting witness, particularly, is of unreliable character. As held by Hon'ble Supreme Court of India in S.P.S. Rathore V/s C.B.I. and Others Manu/SC/1096/2016, "... expert evidence as to hand writing is only opinion evidence and it can never be conclusive. Usually such evidence is to be corroborated either by clear, direct or circumstantial evidence. Sole evidence of handwriting expert is not normally sufficient for recording definite finding about writing is of a certain person or not. Opinion of handwriting expert may be relevant under Section 45 of the Indian Evidence Act, but that too is not conclusive. Such an opinion of handwriting expert can hardly take place of substantive evidence and if it is to be acted upon, it would be appropriate to see that it is corroborated either by clear, direct or circumstantial evidence."
27.1 Further, in Smt. Bhagwan Kaur V/s Shri Maharaj Krishan Sharma and Others (1973) 4 SCC 46, it has been observed that :- "The evidence of handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to Cr. Case No.210/2000 State vs. Sunil Kumar Page 15 of 22 give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo V. Babu Ganesh Prasad Bhagat, this court (Supreme Court) observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case".
28. In view of the aforesaid discussion, the law as culled out by the judgements discussed above, when applied to the factual matrix of the case at hand, it stands established that the prosecution has not been able to prove beyond, reasonable doubt, the creation of a false document by the accused. The fundamental question as to why the accused had forged documents to a property, where his predecessor in interest has himself admitted that the property was sold to the accused by him, remaining unanswered, the burden of proving the creation of a false document remained undischarged.
29. Now, the other limb of the case of the prosecution is that since the accused had already sold the subject property to Chandrawati, the act of the accused in selling the same property to the complainant Manju itself comprised forgery. At this juncture, this court seeks guidance from the law laid down by the Hon'ble Supreme Court of India in Md.Ibrahim & Ors vs State Of Bihar & Anr (2009) 15 SCC 643 where a similar situation had arisen for adjudication. It was held-
"The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the Cr. Case No.210/2000 State vs. Sunil Kumar Page 16 of 22 execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently.
There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no Cr. Case No.210/2000 State vs. Sunil Kumar Page 17 of 22 forgery, then neither section 467 nor section 471 of the Code are attracted."
30. These observations can be applied directly to the facts of the case at hand, and once it is so done, it stands established that the accused cannot be held guilty for the offence of forgery under Section 468 or 471 IPC on this count either.
420 IPC 420 IPC: Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
31. To establish the charge under section 420 IPC, the prosecution has to prove that deception was practised upon the complainant Manju by the accused, either by making a false or misleading representation or by dishonest concealment or by any other act or omission, and because of the deception, so practised, the complainant delivered a property to the accused, which she would not have done but for the deception or inducement. Reliance at this juncture can again be placed upon the judgment of the Hon'ble Supreme Court of India in Mohd Ibrahim (supra), wherein it was observed, "When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently Cr. Case No.210/2000 State vs. Sunil Kumar Page 18 of 22 induced him to part with the sale consideration".
32. These observations squarely apply to the facts of the case at hand. It is the case of the prosecution that the accused cheated the complainant by taking from her the consideration money, after practising deception upon her, and selling her the property which he had already sold to one Chandrawati. The case of the prosecution in this regard has been practically admitted by the accused. The cross-examination of Manju Devi PW2 in this regard is instructive.
33. In the cross-examination, the accused suggested to the witness that he had returned her money, and that a compromise had taken place between her husband and Sunil under which such consideration amount was repaid. This suggestion practically amounts to an admission that an offence was so committed. Even if it is conceded that the accused had later returned the money of the complainant, for the sake of arguments, it stands established that the accused had cheated the complainant in the first instance, by selling her the property which he had already first sold to Chandrawati. The said Chandrawati also deposed in her testimony that the subject property was sold to her by way of the documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C and Ex. PW3/D on 18.03.1999 by the accused. PW3 Chandrawati was not cross examined by the accused, and thus her testimony is deemed to have been accepted as correct by the accused. Once the accused accepted the testimony that the property was indeed sold to Chandrawati on 18.03.1999, the subsequent sale thereof by the accused to PW2 Manju Devi on 22.03.1999 vide Cr. Case No.210/2000 State vs. Sunil Kumar Page 19 of 22 documents Ex. PW2/C, for valuable consideration, unequivocally establishes the fact that the accused had committed the offence punishable under section 420 IPC against the complainant.
174 A IPC.
34. 174 A IPC provides for the punishment for the offence of non-appearance in response to a proclamation under Section 82 CrPC. It provides, "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."
35. To establish the guilt of the accused under this provision, the prosecution was first required to prove that the process under section 82 CrPC was duly executed against him. In order to do so, the prosecution examined PW 11 ASI Dayanand, who deposed in his examination in chief that he had executed the process under section 82 CrPC against the accused on 02.09.2005, on which day he had gone to the address of the accused, but the address was not found to be correct. He deposed that thereafter, he had contacted the pradhan of the colony Mr Mahesh Sharma, despite which the accused or his address was not traceable. He further deposed that he had met the owner of the house bearing number 42 A, who had told him that no personn by the name of the Cr. Case No.210/2000 State vs. Sunil Kumar Page 20 of 22 accused resides in the colony. He deposed that thereafter he pasted the process of section 82 C.r.P.C. at the wall of Sehgal Convent School, situated in the locality. He relied upon his report in this regard Ex. PW 11/A.
36. The said report is a single page report, in the penmanship of the process server HC Dayanand. It is not accompanied by the statement of Mahesh Sharma, or with the statement of Virender Pratap, whom the processor were claims to have spoken to, to trace the whereabouts of the accused. Further, the report is not even accompanied by any statement of any local persons, in whose presence the proclamation was made. No photographs reflecting the affixation of the process on the wall of the Sehgal Convent School, which is situated to be located in the same colony where the accused used to ordinarily reside, has been annexed with the report either. All of these lacunae create a reasonable doubt that the process under section 82 CrPC was not properly executed against the accused, the benefit of which, of necessity, must accrue to the accused.
37. The doubt is compounded by the testimony of PW 11 in his cross-examination, to the effect that even before he had executed the process, he had found out that the address of the accused as mentioned on the process was not correct, which information he concealed from the IO also. When the process server has himself admitted that the process under section 82 CrPC was not executed at the correct last known address of the accused, it cannot be held, by any stretch of imagination, that the siad process was Cr. Case No.210/2000 State vs. Sunil Kumar Page 21 of 22 properly executed against the accused.
38. The foundational fact of the execution of the process under section 82 C.r.P.C. remaining not proved, the prosecution cannot hope to secure the conviction of the accused under section 174A either.
CONCLUSION :
39. In view of the aforegoing discussion, the accused os convicted for the offence punishable under Section 420 IPC. However, he is acquitted for the offence punishable under Section 468/471/174A IPC.
Pronounced in open court on 15.10.2022 in presence of accused person.
This judgment contains 22 pages and each page has been signed by the undersigned. Digitally signed by MEDHA MEDHA ARYA Date:
ARYA 2022.10.17
17:49:01
+0530
(MEDHA ARYA)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi, 15.10.2022
Cr. Case No.210/2000 State vs. Sunil Kumar Page 22 of 22