Delhi District Court
State vs Sri Chand @ Sri Chand Rajoria on 9 December, 2023
IN THE COURT OF SH. ABHISHEK KUMAR,
ACMM-01, PATIALA HOUSE COURTS, NEW DELHI
CNR No.DLND02-000942-2013
State Vs. Sri Chand @ Sri Chand Rajoria
FIR No.30/2012
PS : IGI Airport
U/s : 420/468/471 IPC & 12 PP Act
JUDGMENT
1. S.No. of the Case : 45522/2016
2. Date of commission of offence : 25-26.01.2012
3. Name of the complainant : Rajiw Kr Gautam
ACIO-II
PIS No.105635
Shift-C, Immigration,
IGIA, New Delhi.
4. Name, parentage & address : Sri Chand @ Sri Chand
Rajoria
S/o Sh. Sukhvir Singh
R/o H. No.29, New Tata
Nagar Dairy Gurgaon
Road, New Delhi-110037
&
H.No.231, Tara Chand
Colony, Neelkanth
Mandir, Mahipalpur,
Delhi-37.
5. Offences charged for : U/s.420, 468 r/w Sec.471
IPC
6. Plea of Accused : Pleaded not guilty
7. Order reserved on : 04.12.2023
8. The final order : Acquitted for offence
U/s.468/471 IPC &
convicted for offence
U/s.417 IPC and 12 PP
Act
9. The date of judgment : 09.12.2023
Digitally signed by
ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2023.12.09
17:03:20 +0530
State Vs. Sri Chand @ Sri Chand Rajoria Page No.1 of 18
FIR No.30/2012, PS IGI Airport
BRIEF REASONS FOR THE DECISION OF THE CASE
1. The facts of the case are that during the intervening night of 25-26/01/2012 at T-3, IGI Airport at around 22:30 hours, one Pax namely Sri Chand S/O SukhvirSingh, D.O.B. 25-02-1971 R/ONo. 29, New Tata Nagar Dairy, Gurgaona Road, N. D-37 arrived at counter no.26 for departure to Hong Kong by flight No.IT-31. The pax was travelling on PP No. Z-1598012, dated 02.04.2007 issued at Hong Kong. While checking, LOC No. 2006103331 (old-133278) dated 17.07.2006 was found in the name of Sri Chand Rajoria S/o Sukhvir Singh Rajoria, D.O.B. 25.02.1970 on passport No. A 2711209 dated 22.02.1997, issued at Delhi R/O-J-33 Tata Nagar, Nagal Dairy Gurgaon Road, New Delhi. After doubt about LOC, subject PISON of PP No. A- 2711209 (Mentioned in LOC) was carried out. Thereafter, details were matching in the both passports i.e. Spouse's Name-Shiksha, Mother's Name- Chandra Kala (except Sir name Rajoria & Address- except H. No, in old PP-J-33 Tata Nagar, Nagal Dairy Gurgaon Road,New Delhi, in new PP H. No. 29, New Tata Nagar Dairy Gurgoan Road New Delhi110037). Futher, particulars were slightly changed with respect to surname Rajoria which was not added in the new PP in the name of pax and his father's and mother's name. Also, D.O.B. changed in the new PP as 25.02.1971, while in the old PP it is 25.02.1970. It was alleged that the pax by forgery slightly changed some particulars to clear off from LOC list.
2. During the course of investigation, the accused disclosed that he has obtained his earlier passport in the name of Sri Chand Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.12.09 17:03:32 +0530 State Vs. Sri Chand @ Sri Chand Rajoria Page No.2 of 18 FIR No.30/2012, PS IGI Airport Rajoria with fake D.O.B. as 25/02/1970 and the new passport in the name of Sri Chand with D.O.B. as 25/02/1971. The accused further disclosed that he was knowing that a custom case was pending against him and he stopped travelling on earlier passport. He then got issued various passports. The details of various passports of accused are as under:-
S. PP No. Date of Place DOB Place of Name of No Issue of Birth PP . Issue Holder 1 E070693 21.07.1988 Delhi 25.02.1970 Noorpur Sri (UP) Chand Rajoria 2 F789916 28.07.1989 Delhi 25.02.1971 Delhi Sri Chand 3 U639188 07.09.1995 Delhi 25.02.1971 Delhi Sri Chand 4 A2711209 22.02.1997 Delhi 25.02.1970 Noorpur Sri (UP) Chand Rajoria 5 A6839183 22.01.1999 Delhi 25.02.1971 Delhi Sri Chand 6 B1553231 07.04.2000 Delhi 25.02.1970 Noorpur Sri (UP) Chand Rajoria 7 E2465543 20.09.2002 Delhi 25.02.1971 Delhi Sri Chand 8 Z1598012 02.04.2007 Hong 25.02.1971 Delhi Sri Kong Chand
3. Thereafter, IO obtained the PISON of passport Nos. U- 639188, A-2711209,A-6839183,B-1553231,E-2465543 and Z- 1598012, which revealed that the accused obtained passport Nos. A-2711209,A-6839183, B-1553231 and E-2465543 before expiry of earlier passports and D.O.B. in passport No.A-2711209 and B-
1553231 is 25/02/1970 where as actual D.O.B. of the accused Digitally signed by
ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2023.12.09
17:03:44 +0530
State Vs. Sri Chand @ Sri Chand Rajoria Page No.3 of 18
FIR No.30/2012, PS IGI Airport
was 25/02/1971. The IO also collected copy of school leaving certificate along with report of accusedSrichand from Principal, Govt. Co. Ed. Sr. Sec. school, Mehram Nagar, New Delhi-37 and as per the report actual D.O.B. of accused is 25/02/1971. Thus, it led to the inference that the accused obtained multiple passports with fake D.O B. to travel abroad again and again.
4. The IO concluded the investigating stating that the accused changed his passport frequently. It was done sometimes by changing his date of birth and sometimes with or without using surname. Further, he disclosed his place of birth at Delhi in five passports and Noorpur U.P. in three passports by getting passports with false D.O.B and place of birth. After the conclusion of the investigation, the chargesheet was filed against the accused under section 420/468/471 IPC & 12 Passport Act.
PROCEEDINGS BEFORE THE COURT
5. After the filing of the chargesheet, cognizance of the offence was taken and summons were issued to the accused. Upon the appearnce of the accused, copy of the chargesheet was supplied in compliance of section 207 CrPC.
6. Thereafter, charge was framed against the accused under section 420 & 468/471 IPC and matter was proceeded to record the prosecution evidence. The prosecution had examined 8 witnesses, who were duly cross examined by the accused.
7. Then, the statement of the accused was recorded under section 313 CrPC, in which the accused stated that he has been ABHISHEK Digitally signed by ABHISHEK KUMAR KUMAR Date: 2023.12.09 17:03:58 +0530 State Vs. Sri Chand @ Sri Chand Rajoria Page No.4 of 18 FIR No.30/2012, PS IGI Airport falsely implicated in the present case. Moreover, he never forged any passport or had the intention to cheat the immigration authorities. The accused did not lead any defence evidence despite opportunity. Accordingly, final arguments were heard at length and the matter was reserved for orders. Before procceding further to give findings, it will be pertinent to refer in brief the testiomony of the witnesses as well as the provisions of law involoved in the instant case hereinafter.
CHEATING
8. The offence pertaining to cheating is covered under Chapter 17 of the IPC under the heading 'of offences against property' and is covered from Section 415 to 420 IPC. Section 415 IPC defines the term cheating whereas Section 416 i.e 'cheating by personation' and Section 420 i.e 'cheating and dishonestly inducing delivery of property' are an aggravated form of cheating, which provides for enhanced punishment.
9. In the offence of cheating, a person deceives another person fraudulently or dishonestly to deliver any property or consent to the retention of any property or intentionally induces another person to do or omit to do anything which he would not have done if he was not so deceived and such act has caused or is likely to cause damage, or harm in body, mind, reputation or property.
10. In the case of Iridium India Tel oftenecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 , the Hon'ble Supreme Court while refering to Section 415 IPC has observed as follows: Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.12.09 17:04:18 +0530 State Vs. Sri Chand @ Sri Chand Rajoria Page No.5 of 18 FIR No.30/2012, PS IGI Airport "...68. A bare perusal of the aforesaid section would show that it can be conveniently divided into two parts. The first part makes it necessary that the deception by the accused of the person deceived, must be fraudulent or dishonest. Such deception must induce the person deceived to either: (a) deliver property to any person; or (b) consent that any person shall retain any property. The second part also requires that the accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived. Furthermore, such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. Thus, it is evident that deception is a necessary ingredient for the offences of cheating under both parts of this section..."
11. Section 416 IPC defines cheating by personation, which is a punishable offence under Section 419 IPC. It is an aggravated form of cheating which consists of personating another by pretending to be some other person or knowingly substituting one person for another or representing to the any other person other than the said person really is. It is to be borne in mind that personation by itself is no offence but when a person fraudulently and dishonestly does a fraudulent act and represents himself as another person, Section 416 IPC will be attracted.
FORGERY
12. Section 463 to 477A of the IPC deals with the offences relating to forgery, forged documents and making or possessing counterfeit seal etc. with the intent to commit forgery and is covered under Chapter 18 of the Code which pertains to 'of offences relating to documents and property Marks'. Section 463 defines the term forgery which is punishable under Section 465 IPC. The offence of forgery is completed when a false Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.12.09 17:04:49 +0530 State Vs. Sri Chand @ Sri Chand Rajoria Page No.6 of 18 FIR No.30/2012, PS IGI Airport document is prepared so that the same can be used as genuine. The making of false document is defined under Section 464 IPC.
13. Hon'ble Supreme Court of India in case titled as Ram Narayan Popli v. CBI, (2003) 3 SCC 641 while referring to section 463 IPC has observed as follows:
"...371. In of order to constitute forgery, 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 community.
372.The expression "intent to defraud" implies conduct coupled with an intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions, namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term "forgery" as used in the statute is used in its ordinary and popular acceptation.
373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a 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 guilty.
374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however small.
375. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed..." ABHISHEK Digitally signed by ABHISHEK KUMAR KUMAR Date: 2023.12.09 17:05:03 +0530 State Vs. Sri Chand @ Sri Chand Rajoria Page No.7 of 18 FIR No.30/2012, PS IGI Airport
14. With respect to the creation of a false document in reference to Section 464 IPC, Hon'ble Apex Court in case titled as Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 observed as follows:
"...14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
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 authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
15. Section 467 (forgery of valuable security, will etc.), Section 468 (forgery for purpose of cheating) and Section 471 (using as genuine a forged document or electronically record) are the aggravated form of the offence of forgery and the condition precedent for these offences is the existence of forgery and the creation of false document or electronic record. Section 470 IPC defines a forged document which is a false document made Digitally signed wholly or in part by forgery.
by ABHISHEK
ABHISHEK KUMAR
KUMAR Date: 2023.12.09
17:05:12 +0530
State Vs. Sri Chand @ Sri Chand Rajoria Page No.8 of 18
FIR No.30/2012, PS IGI Airport
16. For the purposes of convicting an accused under Section 471 IPC, it has to be shown that the accused knew or had reason to believe that the document was forged.
17. In case titled as A.S. Krishnan & Ors. Vs. State of Kerala (2004) 11 SCC 576, wherein Hon'ble Apex Court observed as follows:
"The essential ingredients of Section 471 are: (i) fraudulent or dishonest use of document as genuine, and (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one. Section 471 is intended to apply to persons other than the forger himself. but the forger himself is not excluded from the operation of the section. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. The expression "fraudulently and dishonestly" are defined in Sections 25 and 24 IPC respectively. For an offence under Section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by Section 471 must be a voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that the accused knew or had reason to believe that the document was a forged one. Whether the accused knew or had reason to believe the document in question to be forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual".
PROSECUTION EVIDENCE
18. During the proseution evidence, the state had examined a totla number of 8 witnesses and testiomny of the witnesses in Digitally signed by ABHISHEK ABHISHEK KUMAR bried is as follows: KUMAR Date: 2023.12.09 17:05:22 +0530 State Vs. Sri Chand @ Sri Chand Rajoria Page No.9 of 18 FIR No.30/2012, PS IGI Airport ● PW1 Sh. Ratan Lal Palsania: The witness deposed that he was working as TGT Sanskrit in the Sarvodaya Co-Ed Vidyalaya, Mehram Nagar, Delhi and was deputed by the Principal to appear and produce the record of School Enrollment register (School Code 1720003). The register produced was containing the record of Admission No. 1169 to 2209, out of which Admission No. 2169 done on 04.05.1983 in the name of the student as Srichand S/o. Sukhbir, having date of birth of as 25.02.1971, who was admitted into class VI 'B'. As per the record, Srichand left that school 18.10.1986 and got issued a school leaving certificate on 11.01.1989. The copy of the relevant pages of the register were Ex. PW1/B(OSR).
● PW2 Sh. Rajiv Kumar Gautam: The witness deposed that on the intervening night of 25/26.01.2012, he was performing duty at Departure Wing, Counter No 26. At around 10:00 p.m pax Sri Chand @Sri Chand Rajoria, submitted his passport and he found the name of pax was mentioned in lookout circular but the date of birth and exact name of the did not match with the lookout circular as the name was mentioned in lookout circular as Sri Chand Rajoria and the passport which was submitted was in the name of Sri Chand. Then, the witness checked the previous record of the pax with other passport and found father's name,mother's name and address was same. Thereafter, it was confirmed that the pax is the same person whose name was reflecting in lookout circular. He further deposed that the passport of pax was got arranged Digitally signed by ABHISHEK ABHISHEK KUMAR State Vs. Sri Chand @ Sri Chand Rajoria KUMAR Date: 2023.12.09 Page No.10 of 18 17:05:34 +0530 FIR No.30/2012, PS IGI Airport from Hongkong and the previous passport was arranged from Delhi. Thereafter, he filed the complaint Ex.PW2/A in the PS alongwith the Pax and travel documents.
● PW3 SI Sunil Yadav: The witness deposed that on the intervening night of 26.01.2012, he was posted at PS IGI Airport as ASI. And was working as Duty Officer from 07.00 pm to 09.00am. On the said date, at about 8:30 am, he received rukka/tehrir from RajivKumar Gautam ACIO- II, IGI Immigration alongwith Pax SrinChand @ Sri Chand Rajoria and travel documents. Then, he made endorsement on the rukka which is Ex.PW-3/A and registered the present FIR which is Ex.PW3/B(OSR). Thereafter, he had seized the travel documents as per seizure memo Ex.PW3/C. After registration of FIR, he hadded over the pax, copy of FIR and seized documents to SI Sunil Kumar for further investigation.
● PW4 Ashok Kumar: The witness deposed that on the intervening night of 25/26.01.2012, he was posted as a SAG at IGI Airport. On that day, Rajeev Kumar Gautam, ACIO handed over to him, the complaint/rukka alongwith the documents as well as the passenger. Thereafter, he went to PS IGI Airport, where the documents were seized by duty officer vide seizure memo already Ex.PW3/A bearing his signatures at point B. The witness also identified the travelling documents i.e. printout of PISON of passport No. A2711209, printout of PISON No. U639188 and print out of passportDigitally No. B1553231, the signed ABHISHEK by ABHISHEK KUMAR State Vs. Sri Chand @ Sri Chand Rajoria KUMAR Date: 2023.12.09 Page No.11 of 18 17:05:44 +0530 FIR No.30/2012, PS IGI Airport photocopy of the passport on which the passenger was travelling i.e passport No. Z1598012, the boarding pass, ticket and photocopy of the departure card.
● PW5 Inspector Sunil Kumar: The witness deposed that on the intervening night of 25/26.01.12, he was posted at PS IGI Airport as SI. On that day, investigation of this case was marked to him. During investigation, he interrogated the pax Sri Chand and thereafter arrested him vide arrest memo Ex.PW5/A and conducted his personal search memo Ex.PW5/B. He also recorded the disclosure statement of the accused which is Ex.PW5/C. He also obtained the PISON record of various passports as disclosed by accused and mentioned in the complaint. Further, he obtained copy of school leaving certificate from Principal, Govt. School, Mehram Nagar pertaining to accused which shows his actual date of birth as 25.02.1971. The witness also deposed that the accused got issued multiple passports on his name as Sri Chand and Sri Chand Rajoria, out of which perusal of details of 05 passports were found issued in the name of Sri Chand and 03 passports were found issued in the name of Sri Chand Rajoria. He further deposed that 07 passports were got issued from RPO Delhi and one passport was found issued from Hongkong and the accused filled his personal details as slightly changed in the passports i.e. date of birth as 25.02.1971 was found on the passport issued in the name of Sri Chand and date of birth as 25.02.1970 on other passports issued in the name of Sri Chand Rajoria. Further, LOC of accused was also found Digitally signed ABHISHEK by ABHISHEK KUMAR State Vs. Sri Chand @ Sri Chand Rajoria KUMAR Date: 2023.12.09 Page No.12 of 18 17:05:54 +0530 FIR No.30/2012, PS IGI Airport opened on the passport no. A2711209 dt. 22.02.1997 issued at Delhi in the name of Sri Chand Rajoria and also, the accused changed his address as House No29. Tata Nagar Dairy, Gurgaon Road, New Delhi on the passport issued in the name of Sri Chand and House No. J33. Tata Nagar Dairy. Gurgaon Road, New Delhi on the passport issued in the name of Sri Chand Rajoria but other details as father's name and spouse name were found same on all the passports.
● PW6 Prince Roshan: The witness deposed that the record pertaining tot he passport bearing no.E070693 and F789916 were weeded out and destroyed. The report in this regard was exhibited as Ex.PW6/B and the copy of the register maintained for same were exhibited as Ex.PW6/C. ● PW7 A.K Sharma: The witness deposed with respect to the sanction U/s.15 of the Passports Act and filed the detailed report which was exhibited as Ex.PW7/A. ● PW8 Giri Raj Sharma: The witness produced certified record vide letter reference no.LM/Misc/POL.GR.II/Court/ 900/19 dated 22.03.2021 on behalf of Sh. Suresh Yadav, Sr. Superintendent (Policy), RPO Delhi and the same was exhibited as Ex.A1 stating that passport no.E070693 dated 21.07.1988 and passport no.F789916 dated20.07.1989 as per their official record, were not available. The witness further deposed that during scrutiny of record pertaining to Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date: 2023.12.09 17:06:02 +0530 State Vs. Sri Chand @ Sri Chand Rajoria Page No.13 of 18 FIR No.30/2012, PS IGI Airport Mr. Sri Chand in PSP System, it was revealed that Mr. Sri Chand was issued passport no.E2465543 dated 20.09.2002 in lieu of passport no. A6839183 dated 20.01.2009 which was issued in lieu of passport no. U639188 dated 07.09.1995 which was issued in lieu of passport no. F789916. Moreover, Mr. Sri Chand was issued passport no. B1553231 dated 07.04.2000 in lieu of passport no. A2711209 dated20.01.1997 which was issued in lieu of passport no. M190834 with the name Sri Chand Rajoria. The witness also deposed that the original record pertaining to issue of above passport numbers has been weeded and destroyed long back as per the Ministry's Circular NoVIII/885/06/06 dated 10.03.2008.The certified copy pertaining to all records of passport no.B1553231 and A2711209 containing 17 pages is now ExA2 (colly). The certified copy pertaining to all records of passport no.E2465543, A6839183 and U639188 containing 19 pages is now Ex.A3 (colly).
ANALYSIS OF THE PROSECUTION EVIDENCE
19. As per the testimony of the witnesses, all the passports in question were found to be genuine. Further, these passports were got in the name "Sri Chand Rajoria" and "Sri Chand". In these two types, anomaly in date and place of birth can also be found. The prosecution could only establish that the accused possessed passports with varying credentials, but evidence collected by the investigating officer strongly indicates the genuine nature of these passports. This undermines the prosecution's claim that the passports were falsely made or forged by the accused. At most, it Digitally signed ABHISHEK by ABHISHEK KUMAR State Vs. Sri Chand @ Sri Chand Rajoria KUMAR Date: 2023.12.09 Page No.14 of 18 17:06:11 +0530 FIR No.30/2012, PS IGI Airport suggests false declarations made to the passport office for obtaining the passport. Notably, there is no investigation into whether the documents submitted for passport issuance were forged or falsely created. The evidence which has come on record indicates the commission of offence under the Passports Act. Thus, there is no material to show that the accused forged any documents or used any forged document as genuine.
20. Now it has to be analyzed whether the accused evaded the LOC with respect to the passport with the name 'Sri Chand Rajoria' by traveling on a different passport issued in the name of 'Sri Chand'. The travel history which could be ascertained from the copy of the passport available on record reveals that the accused has traveled on the passport with the name 'Sri Chand' multiple times after the issuance of LOC in the year 2006 and the fact with respect to the usage of both the passports with different names were within the knowledge of the accused and he never stepped into the witness box to produce any evidence or record which could show that he has ever utilized the passport with the name 'Sri Chand Rajoria' after the issuance of the LOC. Further, he could not contradict the witnesses or state before the Court as to why the passport with the name 'Sri Chand Rajoria' was specifically given by him to the investigating agency, who got issued the LOC against him and why he did not bring to the notice of the agency regarding the existence of another passport with the name 'Sri Chand'. Due to this, he managed to evade the LOC by traveling multiple times from the year 2007 till the date he was arrested in the year 2012, strongly indicating his knowledge with respect to the LOC and evading the same by Digitally signed by ABHISHEK ABHISHEK KUMAR State Vs. Sri Chand @ Sri Chand Rajoria KUMAR Date: Page No.15 of 18 2023.12.09 FIR No.30/2012, PS IGI Airport 17:06:20 +0530 using the passport with different credentials. Thus, offence of cheating has been committed, where he managed to induce the immigration officials to travel abroad despite there being an LOC issued against him.
FINDINGS
21. On account of the discussion as held above, I am of the opinion that the prosecution could not establish on record the existence of any forged document or use of any forged document by the accused as genuine. Therefore, the commission of offence U/s.468 & 471 IPC are not established. Accordingly, accused is acquitted for the offence U/s.468 as well as 471 IPC. To support the above view, I am placing reliance on the judgment of Hon'ble Apex Court titled as Sheila Sebastian Vs. R. Jawaharaj & Anr. (Crl. App No.359-360 of 2010), wherein it was held by the Hon'ble Apex Court that the charge of the forgery cannot be imposed on a person who is not the maker of the false document. Also, the passport is not covered under the definition of 'valuable security' as mentioned in Section 30 IPC as it does not create any legal right and is only a permissive document.
22. Now coming to Section 420 IPC, I am of the opinion that the essential ingredients of the offence are not made out as there is no valuable security involved in the offence. The passports in question can be considered only to be a permissive document and does not fall within the definition of Section 30 of the IPC. Therefore, charge U/s.420 IPC is not established but on the basis of the evidence which has come on record, the commission of offence of cheating as per Section 415 of the IPC is clearly made Digitally signed by ABHISHEK ABHISHEK KUMAR State Vs. Sri Chand @ Sri Chand Rajoria KUMAR Date:
Page No.16 of 182023.12.09 17:06:31 +0530 FIR No.30/2012, PS IGI Airport out. It is an established principle that an accused can be convicted for a lessor offence than charged for. In the present case Section 420 IPC is an aggravated form of the offence of cheating. The evidence and the testimony of witnesses clearly highlights that the accused was using a different passport than the passport on which the LOC was issued and has evaded the LOC multiple times. Despite opportunity, the accused could not explain as to why he preferred using the passport with the name 'Sri Chand' despite the fact that the passport on which the LOC was issued was valid till the year 2010 and thus, committed cheating with the immigration officials to evade the LOC. Accordingly, there is ample evidence with respect to the offence of cheating punishable U/s.417 IPC & same stands duly established. Therefore, accused is convicted for the offence U/s.417 IPC.
23. Though, there was no formal charge framed against the accused U/s.12 of the Passports Act but initially he was charge- sheeted for the said offence. It is a settled law that an accused can be convicted for an offence for which a formal charge has not been framed provided that the same does not cause any prejudice to the accused and he had the opportunity to contracdict the witnesses with respect to the said aspect or adduce evidence in his favour. In the instant case, evidence has come qua the commission of the offence under the Passports Act as the witness from the Regional Passport Office has produced the record in the Court with respect to the passports in the name of 'Sri Chand Rajoria' and 'Sri Chand' and the accused also got the opportunity to cross-examine the witnesses. Moreover, the prosecution has Digitally signed by ABHISHEK ABHISHEK KUMAR State Vs. Sri Chand @ Sri Chand Rajoria KUMAR Date: Page No.17 of 18 2023.12.09 FIR No.30/2012, PS IGI Airport 17:06:40 +0530 also proved the sanction U/s.15 of the passports Act. Therefore, it cannot be said that the accused did not get the opportunity to cross-examine the witnesses on these aspects and the accused had the knowledge of the charges levelled against him in the charge- sheet and thus, was having the chance to lead the evidence, clarifying the issue of name, date of birth and place in the passports. Accordingly, prosecution has successfully established the commission of offence U/s.12 of the Passports Act against the accused as in the passports in question, the information in either set of the passports with the name 'Sri Chand Rajoria' and 'Sri Chand' has been falsely furnished to the concerned RPO. Thus, the accused is convicted for the offence U/s.12 of the Passports Act.
24. Now to come up for addressing arguments on the point of sentence.
Announced in the open Court on 9th December, 2023 This judgment contains eighteen pages and each page is signed by me. Digitally signed by ABHISHEK ABHISHEK KUMAR KUMAR Date:
2023.12.09 17:07:45 +0530 ( Abhishek Kumar ) ACMM-01/PHC/New Delhi State Vs. Sri Chand @ Sri Chand Rajoria Page No.18 of 18 FIR No.30/2012, PS IGI Airport