Delhi District Court
State vs . Ashok Kumar Goel & Another on 14 August, 2018
IN THE COURT OF MS. SHIVALI SHARMA, CHIEF METROPOLITAN
MAGISTRATE/EAST : KARKARDOOMA COURT : DELHI
FIR No. : 333/00
PS : Kalyan Puri
u/s : 406/408/34 IPC
STATE Vs. ASHOK KUMAR GOEL & ANOTHER
JUDGMENT
A Sr. No. of the case 3116/16
B Name of the complainant Sh. I.A. Khan
C Name of the accused & 1. Vijay Kumar Goel
his parentage and S/o Late Sh. Bal Mukund
address R/o B-6/153, First Floor,
Sector- No. 3, Rohini Delhi
2. Jagdev
S/o Late Sh. Kanti Prasad
R/o
3.Sudha Goel
W/o Pradeep Goel
R/o C-9/113, Second Floor, Sector-8,
Rohini.
4.Ashok Kumar (since abated vide
order dated 26.08.15).
D Offence Complained of U/s 406/408/34 IPC
E Date of commission of 28.09.2000
offence.
F Date of Institution 09.05.2003
G Offence Charged U/s 406/407/34 IPC
H Plea of the accused Pleaded not guilty
I Order Reserved on 13.08.2018
J Date of Pronouncement 14.08.2018
K Final Order Acquitted for offences u/s
406/407/34 IPC
State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 1
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The story of the prosecution is that on 28.09.00, at 5-6 Gazipur, Levy Sugar Godown of Delhi State Civil Supplies Corporation Ltd. (DSCSC ) within the jurisdiction of PS Kalyan Puri, M/s Maha Maya Transport Company, the authorized carrier of DSCSC was issued 219 bags of Levy Sugar of the description Sugar - Levy- M-30, Modi Sugar Mills to be supplied to the fair price shops ( FPS) bearing no. 5499, 7046, 8459, 6278, 7441 and 7426 all within circle no. 60. The accused Ashok Kumar Goyal ( since deceased), Vijay and Sudha are alleged to be Directors of M/s Maha Maya Transport Company and accused Jagdev is alleged to be the Manager / Authrorized signatory of the company. It is alleged that all the accused persons in furtherance of their common intention instead of supply the designated Levy Sugar to FPS, supplied inferior quality of sugar to the said FPS and thereby committed breach of trust regarding the Levy Sugar entrusted to them for supply. Thus, accused persons are alleged to have committed offences u/s 406/407 r/w Section 34 IPC.
CHARGE 2 After investigation, charge-sheet under section 173 Cr. P.C was filed on 09.05.03 u/s 406/408/34 IPC.
3 On the basis of the charge-sheet and after compliance of Sec.207 Cr.
P.C., a charge for the offence punishable under sections 406/407/34 IPC was framed against all the four accused persons and read out to them to which they pleaded not guilty and claimed trial on 18.12.09. 4 During trial accused Ashok Kumar Goyal expired and proceedings qua him were abated vide order dated 26.08.2015.
State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 2PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 15 witnesses in all.
6 PW1/ is the complainant Sh. I.A. Khan. He deposed that in the year 2000, he was posted as Assistant Manager at Gazipur Godown of DSCSC. In September, 2000, some FPS holders of Circle-60 had made a complaint to the Managing Director S.M. Mazoomdar regarding inferior quality of sugar being supplied to them by transport contractor M/s Maha Maya Transport Company. On directions of the Managing Director he had made his complaint Ex.PW 1/A on the basis of which present FIR was registered and police conducted the investigation. The documents pertaining to the case were collected by the police from their Head Quarter, 7-9 Aram Bagh from Ashok Gupta, Senior Manager.
7 This witness was cross examined on behalf of the State and in his cross examination he identified his signatures on the seizure memo Ex. PW 1/B and PW 1/C. He also admitted that the sugar was issued by Sh. R.C. Rai who after issuance of the same had obtained the signature of Transporter and driver. He also admitted that before the sugar was issued Sh. Ravinder used to sign as a checking officer. The goods were issued through BDN which is a type of memo for issuing sugar in which FPS number and quantity of sugar to be supplied to the respective FPS is mentioned. Gate pass is issued on the basis of BDN. He did not identify any of the accused persons. 8 PW-2 ASI Shyam Singh is a formal witness being the duty officer who proved the registration of the present FIR as Ex.PW2/A and endorsement made on the rukka as Ex.PW 2/B. 9 PW-3 Ramesh Chand is another employee of DSCSC who was posted as Assistant Grade-II at Gazipur Godown of DSCSC in the State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 3 year 2000. He deposed that he used to get the sugar bags loaded and unloaded in the vehicles of transporters after counting the same and was assisted by one Babu Ram and Ram Pyare.
10 PW-14 Ramesh Chand Rai is another employee of DSCSC who was posted as AG-II on 28.09.00. He deposed that he was working as a godown keeper at Gazipur godown and on 28.09.00 219 bags of sugar of Modi Sugar Mills were loaded on the truck of M/s Maha Maya Transport Company. He used to load the sugar bags as per directions of Incharge of the godown Sh. S. N. Ali Zaidi after seeing the gate pass. Driver of the vehicle which was loaded with sugar used to sign on the gate pass and the transporter also used to sign on the gate pass at the time of taking delivery of the sugar. The gate pass used to be submitted at the gate of the godown at the time of exit of loaded vehicle.
11 He also deposed that on 28.10.00, police visited the Gazipur Godown and took samples of three bags of sugar belonging to Modi Mills. The samples were kept in polythene bag and sealed with the seal of MK and taken into police possession vide memo Ex PW 1/B. Seal after use was handed over to him. On the same day a bag of sugar was also handed over to him which was brought by S.N. Ali Zaidi and I.A. Khan from FPS. It was also sealed and seized vide memo Ex.PW 11/B. 12 PW-15 Purshottam Kumar is also an employee of DSCSC who was working as AG-II at Gazipur godown on 28.09.00. He deposed that on 28.09.00, he had issued a gate pass no. 8 to truck no. DL- 1GB-0577 of M/s Maha Maya Transport and 99 gunny bags of sugar were issued to be supplied to FPS No. 4827, 778, 5499 of circle 60 after seeing the BDM. Sugar was supplied to them by Modi Mills. He identified the attested copy of gate pass which is Mark C and stated that it bears his signature at point A, that of drive Mahender at point B State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 4 and that of Ravinder Singhal, AG-II at point C. The said documents also bears the attestation of godown incharge I.A. Khan at point D. He also identified the signature of Sanjay Sinha AG-II Gazipur Godown in document Mark A and signature of Ravinder Kumar Singhal AG-II Gazipur godown at point B. 13 PW-4 Ram Kumar is the lab Incharge Modi Sugar Mills, Modi Nagar U.P. who deposed that on 21.03.03 he had given his opinion on sugar samples received and tested by him vide his report Ex.PW 4/A. 14 PW-7 Moti Lal, PW-8 Hari Ram Gupta & PW-12 Billu are the owners of 3 FPS shops to whom inferior quality of sugar was supplied as per the case of the prosecution. All of them deposed that in the year 2000 certain supplies of sugar were received by them from DSCSC out of which some sugar was found to be in wet condition. They had made a representation in this regard to the DSCSC authorities. The officers of DSCSC had visited their shops and taken the wet sugar bags with them vide reports Mark PW-7/A and PW 8/A. PW-7 deposed that the sugar was received through M/s Maha Maya Transport Company while the other witnesses could not tell the name of the transporter. However, all these witnesses denied that the supplied the sugar was of inferior supplied to them. Rather they stated that some of the sugar bags supplied to them were in wet condition.
15 PW-5 HC Rajender Kumar is a formal witness in whose presence sample of sugar was taken from three jute bags on 21.10.00 at DSCSC, 5-6 godown Gazipur. He stated that the samples were sealed with the seal of MK and taken into police possession vide memo Ex.PW1/B. On the same day Sh. I.A. Khan, Assistant Manager had also handed over certain documents i.e. gate pass, authority letter and demand letter to the IO which were seized vide memo Ex. PW 1/C. 16 PW-6 HC Sanjeev is a formal witness being the witness to the arrest State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 5 of accused Ashok Kumar ( since deceased) on 10.03.03 and recording of his disclosure statement Ex. PW 6/A. 17 PW-9 HC Ram Niwas is again a formal witness in whose presence IO/ SI D.V. Gautam had taken samples of Sugar from three stiched kattas at Gazipur godown on 24.09.02. he deposed that the kattas were sealed with the seal of DVG and samples were taken into police possession vide memo Ex. PW 9/A. 18 PW-10 Inspector Kishore Pandey who is one of the IO of the case with whom investigation remained only 2-3 days. 19 PW-11 Inspector Rajesh Kumar Jha is the first IO of the case who deposed that on 16.10.00, he had received complaint (Ex. PW 1/A). He made the endorsement Ex. PW 11/A on the complaint and got the FIR register. On 21.10.00, he alongwith Ct. Rajender visited the godown of DSCSC situated at 5-6 Gazipur. He seized the gunny bag of sugar weighing 100 kg which were supplied by Modi Sugar Mills for further supply. The said gunny bag was sealed with the seal of MK and seized vide memo Ex.PW11/A. The said gunny bag was deposited in the malkhana. On the same day at the said godown one sample of sugar was taken from three bags of sugar bearing particulars 30 sulphitation Modi Nagar,1999-2000. It was also sealed with the seal of MK and seized vide memo Ex. PW 1/B. He also seized the documents i.e. three gate passes (mark A, B and C), list of FPS dated 26.09.00 issued by office of Food & supply, circle no. 60, 2 Under Hill Road, Delhi (Ex.PW-11/C), demand letters issued to DSCSC vide seizure memo Ex.PW1/C. He recorded statement of various witnesses and FPS owners.
20 PW-13 Inspector Madhukar Rakesh is again one of the IO of the case to whom investigation was marked in 2001 for a short span and he had not recorded statement of any witness or prepared any document.
State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 6STATEMENT OF ACCUSED 21 Statement of accused persons was recorded u/s. 313 Cr.P.C. on 13.08.2018 wherein the entire incriminating evidence proved on record against them was put to them. They stated that they have been falsely implicated in the present case and are innocent. The DSCSC officials have got the present case registered by making them escape goat in order to shield their wrongs and save themselves from prosecution.
DEFENCE EVIDENCE 22 The accused persons did not examine any witness in support of their defence.
23 Final arguments have been heard and record carefully perused. JUDICIAL RESOLUTION 24 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 25 In the present case the accused persons have been charged for the offences u/s 406/407 IPC r/w section 34 IPC.
26 Section 406- IPC provides punishment for criminal breach of trust while Section 407 IPC provides punishment for criminal breach of trust by carrier etc. The offence of criminal breach of trust is defines in Section 405 IPC. The essential ingridients as required by section 405 State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 7 IPC for holding a person guilty for offence of criminal breach of trust are:-
1. Entrusting any person with any property or with any dominion over property.
2. That person entrusted (a) dishonest misappropriating or converting to his own use that property, or
(b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation; (i) of any direction of law prescribing the mode in which such trust is to be discharged or (ii) of any legal contract made touching the discharge of such trust.
27 In the present case, in order to hold the accused persons guilty of offences charged, the prosecution was firstly required to prove the entrustment of sugar bags to the accused persons. The case of the prosecution is that the accused persons were Directors and Manager of M/s Maha Maya Transport Company which was authorized carrier of DSCSC. The prosecution has not brought on record even a single document to show connection between the accused persons and M/s Maha Maya Transport Company. No document have ever been proved on record to show that M/s Maha Maya Transport Company was the authorized carrier of DSCSC Ltd. Accordingly, both these facts remain unproved on record.
28 Further, as per the case of the prosecution the sugar was handed entrusted to the driver namely Narender of M/s Maha Maya Transport Company Ltd. for supplying to various FPS on 28.09.00. The documents placed on record in support of this contention are the gate passes Mark A B and C, however none of these gate passes mention the name of the Transporter. It only bears the vehicle number and name of the driver. No evidence has been brought on record to State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 8 connect the vehicle numbers as mentioned in these gate passes or the drivers (names of whom are mentioned in these gate passes) with M/s Maha Maya Transport Company. Accordingly there is nothing on record to estalish the alleged entrustment of levy sugar to M/s Maha Maya Transport Company for the purposes of delivery to various FPS. 29 In these circumstanes, prosecution has miserably failed to prove the entrustment of sugar bags to the accused persons on 28.09.00 for delivery to various FPS.
30 As regards the misappropriation the allegation of the prosecution is that the accused persons had misappropriated the good quality sugar entrusted to them on 28.09.00 and in its place supplied inferior quality sugar to various FPS.
31 In this regard 3 FPS owners have been examined by the prosecution which are PW-7, PW-8 and PW-12. None of these witnesses have supported the case of the prosecution and none has deposed that inferior quality sugar was supplied to them. Their depostion is that out of total sugar supplied to them, some of the sugar bags were in wet condition regarding which complaint was made to DSCSC and which bags were later on exchanged by DSCSC. Accordingly, even this alletgations of the prosecution stands unproved on record. 32 Moreover, no recovery of good quality sugar which is allegedly misappropriated by the accued persons have been effected from any of them. Thus, even the allegations of misappropriation and converting to their own use levied against the accused persons remains unproved.
33 In view of the above reasons and considering the overall evidence on record, I have no hesitation in holding that prosecution has miserably failed to prove its case as charged against the accused persons beyond any reasonable doubt. The evidence brought on record is highly insufficient for giving the finding of guilt against the State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 9 accused persons.
34 Accused Vijay, Sudha and Jagdev are accordingly acquitted of the offences u/s 406/407/34 IPC as charged against them.
ANNOUNCED IN THE OPEN COURT ON 14.08.2018 (SHIVALI SHARMA) CMM(EAST)/KKD/14.08.2018 Certified that this judgement contains 10 pages and each page bears my signatures.
(SHIVALI SHARMA)
CMM(EAST)/KKD/14.08.2018
Digitally signed
by SHIVALI
SHARMA
SHIVALI Location: East
District
SHARMA Karkardooma
Courts Delhi
Date: 2018.08.14
16:48:11 +0530
State v. Ashok Kumar Goel & anr. FIR No. 333/00 Page No. 10