Delhi District Court
State vs . on 23 December, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
WEST, TIS HAZARI COURTS,
NEW DELHI
Presided over by- Devanshu Sajlan, DJS
Cr. Case No. -: 59823/2016
Unique Case ID -: DLWT020000452005
No.
FIR No. -: 760/2003
Police Station -: Tilak Nagar
Section(s) -: 120B/411/468/471/482
IPC
In the matter of -
STATE
VS.
GULSHAN KUMAR & ORS.
.... Accused
1. Name of Complainant : Sh. HC Mohan Lal
1. Sh. Gulshan Kumar
2. Name of Accused Persons : 2. Sh. Sanjay Chaudhary
3. Sh. Gurpreet Singh
Offence complained of or
3. : 120B/411/468/471/482 IPC
proved
4. Plea of Accused : Not guilty
5. Date of registration of FIR : 29.09.2003
Date of filing of
6. : 27.03.2004
chargesheet
7. Date of Reserving Order : 21.12.2022
8. Date of Pronouncement : 23.12.2022
9. Final Order : Acquitted
DEVANSH Digitally signed by
DEVANSHU SAJLAN
U SAJLAN 17:34:59 +05'30'
Date: 2022.12.23
Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 1 of 23
BRIEF STATEMENT OF REASONS FOR THE DECISION-:
A. FACTUAL MATRIX:
1. The case of the prosecution is that on 29.09.2003, a secret information was received by HC Mohan Lal at about 3.00 PM about the accused Sanjay being in possession of a stolen Pulsar Motorcycle bearing fake registration No. DL-8SE-0487, which he was going to sell to an auto dealer near a local wine shop, Tilak Nagar. Thereafter, after getting the said secret information, HC Mohan Lal prepared a raiding party and apprehended the accused Sanjay at about 03:35 PM near Hari Om Sweets, Double Story Building, Tilak Nagar.
2. It is further alleged that at the time of apprehension, the motorcycle was bearing No. DL-8SE-0487 and the accused Sanjay also showed RC bearing registration No. DL-8SE-0487 to the raiding party. However, upon verification of the same on the basis of chasis and engine number, it transpired that the actual number of motorcycle was DL-8SZ-0392 and it was registered in the name of a person named Sunita. It has been further alleged that upon being questioned, the accused Sanjay informed the raiding party that the motorcycle belongs to his friend, i.e., co-accused Gulshan, and that the original number of motorcycle was deliberately changed.
Therefore, the fake RC and the motorcycle was seized. Thereafter, at the instance of the accused Sanjay, the accused Gulshan was arrested, and it came to light that the motorcycle belongs to Sunita, who is the mother of accused Gulshan.
Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 2 of 233. It has been further alleged that the co-accused Gulshan had disclosed to the police that he had got the fake RC prepared through his friend i.e., accused Gurpreet Singh. Thereafter, he took the police officials to the address of co-accused Gurpreet, where the accused Gurpreet Singh was arrested, and all the accused persons were brought back to the police station where the three accused persons disclosed about the entire conspiracy. It has been further alleged that based on the disclosure statement of accused Gulshan, his residence was visited, and the original RC of the motorcycle was recovered and seized from the mattress of his bedroom at his instance. It has been further alleged that at the instance of accused Gurpreet Singh, computer parts were recovered from the basement of B-Block, Nishkan Seva Society, Tilak Vihar which were used to prepare the fake RC.
4. Finally, it has been alleged that the accused persons indulged in conspiracy by doing the following acts: (i) a false FIR was lodged by them regarding theft of the motorcycle in order to claim insurance money by making a claim before insurance company that the motorcycle has been stolen; (ii) at the same time, the accused persons prepared a fake number plate and fake RC to sell the motorcycle to a third person and claim money from the sale of motorcycle as well.
INVESTIGATION AND APPEARANCE OF ACCUSED -
5. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused persons was filed. After Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 3 of 23 taking cognizance of the offence, the accused persons were summoned to face trial.
6. On their appearance, a copy of charge-sheet was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 120B/411/468/471/482 IPC was framed against accused persons to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE -
7. During the trial, prosecution led the following oral and documentary evidence against the accused persons to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : ASI Narender Singh PW-2 : SI Mohan Lal PW-3 : HC Basant PW-4 : SI Surender Singh PW-5 : Insp. Kashmiri Lal DOCUMENTARY EVIDENCE Ex. PW-2/B : Seizure memo of motor-cycle Ex. PW-2/C : Seizure memo of fake RC Ex. PW-2/N : Seizure memo of original RC Seizure memo of ID Card of accused Ex. PW-2/J :
Gurpreet Ex. PW-2/A : Original FIR vide Rukka Ex. PW-2/D : Arrest memo of accused Sanjay Ex. PW-2/E : Personal search memo of accused Sanjay Arrest memo & personal search memo Ex. PW-2/H&I :
of accused Gurpreet Singh Arrest memo & personal memo of Ex. PW-2/F&G :
accused Gulshan Kumar
Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 4 of 23
Ex. PW-3/A : Seizure memo of the computer parts
Ex. P-1 : Original RC
Ex. P-2 : ID Card of accused Gurpreet Singh
Ex. PW-2/K : Disclosure statement of accused Sanjay
Ex. PW-2/L : Disclosure statement of accused Gulshan
Ex. PW-2/M : Disclosure statement of accused Gurpreet
STATEMENT OF ACCUSED-
8. Thereafter, before the start of defence evidence, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused persons was recorded without oath under Section 281 read with Section 313 CrPC. The accused persons stated that they are innocent and have been falsely implicated in the present case. ARGUMENTS -
9. I have heard the learned APP for the State and learned counsel for the accused persons at length. I have also given my thoughtful consideration to the material appearing on record.
10. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. As such, it is prayed that the accused be punished for the said offences.
11. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that the accused persons have been falsely implicated in the present case and the entire story of raid is false and fabricated.Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 5 of 23
INGREDIENTS OF THE OFFENCE AND DISCUSSION -
I. Forgery for the purpose of cheating (section 468 IPC)
12. In order to constitute an offense under section 468 IPC, it is imperative that a forgery must have been committed. The basic ingredients of the offense of forgery, as defined in section 463 IPC, can be enumerated as:
(i) the making of a false document or false electronic record or part of it;
(ii) the false document must have been made dishonestly or fraudulently within the meaning of the words used in section 464, IPC;
(iii) such making should be with intent to: (a) cause damage or injury to the public, or to any person; or (b) support any claim or title; or (c) cause any person to part with property; or (d) enter into any express or implied contract; or (e) commit fraud or that fraud may be committed.
13. It is a settled position of law that the condition precedent for forgery is making of a false document. Therefore, for a person to commit forgery, 'making of a false document' is a sine-qua-non. In Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751, the meaning of the phrase 'making of a false document' was lucidly explained in the following manner:
[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.Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 6 of 23
14. The present case does not fall within serial number 3 mentioned above. Therefore, the prosecution was required to prove that either (i) the accused persons made or executed the fake RC claiming to be someone else or authorised by someone else (i.e., falsely claiming to be the owner of the motorcycle based on forged RC); or (ii) the accused persons altered or tampered the original RC (Ex. P1) in order to make the fake RC. However, the prosecution has failed to prove the same for the reasons discussed hereinafter. A. Making/ altering of fake RC by accused persons not proved.
15. In order to prove that the accused persons made the fake RC or altered the original RC to prepare the fake RC, the prosecution called PW3 HC Basant, who deposed to the following effect:
On 01.10.2003...accused persons led us to Nishkam Centre, Basement, B Block, Tilak Vihar where the computer parts, i.e., one printer, one monitor, one CPU, keyboard, and one mouse were got recovered at the instance of accused persons which were seized vide seizure memo exhibited as Ex. PW3/A which bears my signature at point A. It was stated by the accused persons that they had prepared the forged RC from the said computer.
16. Thereafter, when the IO/PW Insp Kashmiri Lal was called as a witness, he deposed to the following effect:
On 01.10.2003, at the instance of the accused Gurpreet, the computer parts were recovered from the basement B Block, Nishkan Sewa Society, Tilak Vihar which was seized vide seizure memo already exhibited as Ex. PW3/A bearing my signature at point B. Fake RC was prepared through this computer.
17. In relation to the aforementioned testimonies, it is pertinent to note that both the witnesses have not explained as to how the police reached the conclusion that the seized computer was used to prepare Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 7 of 23 fake RC. PW3 states that accused persons informed the police about the same and PW5 states it as a matter of fact without any explanation. From the perusal of the entire record, it becomes evident that except for the disclosure statements of the accused persons that they prepared the fake RC using the computer system which was seized vide seizure memo Ex. PW3/A, there is nothing on record to prove that the said computer system was used to prepare the fake RC.
18. In fact, PW5/IO specifically admitted in his cross- examination that the computer parts were not sent to FSL for scientific examination as such facility was not present at that time. If the case of the prosecution is that no such facility was available in 2003, then an expert witness ought to have been called to depose to this effect, which was not done. Further, if the fake RC was prepared on the seized computer system, the prosecution should have produced that specific file from the computer which had the soft copy of the fake RC. However, no such attempt was made. The witnesses have not even deposed that the seized computer was checked at any point of time during investigation to find/ recover the soft copy of the fake RC on the said computer system. The entire case of the prosecution appears to be that the accused persons told the IO that the seized computer system was used to prepare the fake RC and the police innocently believed them and took their word for it without conducting any investigation whatsoever. Furthermore, there is no testimony on record that any investigation was done to ascertain which software was used to prepare the alleged fake RC from the said computer.
Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 8 of 2319. In light of the above, there is no evidence on record which proves that the alleged fake RC has been prepared by the accused persons. Nothing has been recovered from the computer system which can show that the accused persons made the forged RC. It is a settled principle of law that disclosure statements given to the police have no evidentiary value and hence, the disclosure statements of the accused persons that the forged RC was prepared by the accused Gurpreet using the seized computer system has no value.
20. It has been next contended by the Ld. APP that the fake RC was recovered from the accused Sanjay as per seizure memo Ex. PW2/C, and the said factum of recovery speaks for itself that the accused Sanjay, in conspiracy with other two accused persons, prepared the fake RC. However, learned counsel for the accused has argued that the fake RC was implanted upon the accused Sanjay and there was no recovery made from him.
21. Firstly, there cannot be any presumption under law that the person from whom a forged document has been recovered is the maker of the said forged document.
22. Secondly, in any case, if the entire testimony of the witnesses is scrutinised, there are material omissions which themselves create a huge doubt on the entire recovery proceedings.
B. No public witnesses joined during recovery
23. Firstly, no public witness to the recovery of the motorcycle and fake RC has been either cited in the list of witnesses or examined by the prosecution. The alleged recovery in the instant case is stated to have been effected on a public road at about 3:35 pm. The place of occurrence was admittedly located in a market Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 9 of 23 area. At the alleged time, public persons would certainly have been available at the spot. In fact, in his testimony, PW-1, who is one of the recovery witnesses, deposed that PW2 HC Mohan Lal had requested 4-5 public persons to join the raiding party constituted by him. As such, it is not the case of the prosecution that no public person was present or available at or near the spot of arrest and recovery.
24. However, despite availability, no public person was joined as a witness to the investigation. While PW-1 ASI Narender has deposed that public persons had been asked by PW-2 to join the raiding party, but none agreed, PW-2 HC Mohan Lal did not even note down the names and other particulars of the said public persons, let alone serve notice upon them under Section 160 CrPC. PW-4 has specifically admitted in his cross-examination that no notice under section 160 CrPC was served upon any public witness. Even if public persons could not be joined in the raiding party before spotting the accused, public persons could have been joined in the investigation after the accused had been apprehended alongwith alleged fake RC and motorcycle with fake number plate. From a perusal of the record, no serious effort for joining public witnesses appears to have been made by the recovery witnesses.
25. It is a well settled position of law that non-joining of public witnesses creates doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case which creates a doubt on the fairness of the investigation. In this regard, it would be Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 10 of 23 apposite to refer to the judgment of Hon'ble High Court of Delhi in Pawan Kumar v. Delhi Administration, 1987 SCC OnLine Del 290, wherein it had been observed as under:
... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 7.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.
26. Further, in Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi had observed as under:
It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC.Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 11 of 23
27. Therefore, the prosecution is required to prove that sincere efforts were made to join independent witnesses and in absence of the same, the prosecution case has to be viewed with circumspection. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages.
28. However, at the same time, it is a settled position of law that the prosecution version cannot be thrown out or doubted on the sole ground of non-joining of public witnesses. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
C. Absence of DD entries regarding departure and arrival in PS
29. There are evident material omissions in the testimony of the police witnesses since the following records have not been tendered in evidence:
a). There is no DD entry on record regarding the posting of PW1/ASI Narender, HC Mohan Lal (PW2) and HC Surender Singh (PW3) on patrolling duty on 29.09.2003;
b). There is no DD entry as regards the arrival and departure of the raiding party to and from the Police Station;
c). There is no DD entry on record regarding the departure of PW5/IO and PW1 to the spot after registration of FIR;Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 12 of 23
d). lack of independent witnesses during the raid to arrest the accused Sanjay.
30. The aforesaid omissions cannot be ignored; especially in light of absence of any independent witnesses at the time of conducting raid. Since there is no independent witness available to corroborate the story of the police witnesses, it was all the more important for the police witnesses to establish the genuineness of the raid conducted by them to arrest the accused. Chapter 22, Rule 49 of Punjab Police Rules, 1934, states that:-
22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
31. The above said provision, prima facie, has not been complied with by prosecution in the present case. As per the prosecution version, at the time of the apprehension of the accused with motorcycle and fake RC in his possession, PW1 ASI Narender, PW2 HC Mohan Lal and PW4 HC Surender Singh were on patrolling duty in the area of New Market, Tilak Nagar, but the DD entry vide which they had left the police station for patrolling has not been brought on record. The prosecution was under an obligation to prove on record the above said DD entries vide which Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 13 of 23 the said police officials had left the Police Station so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal v. State, 1987 (2) Crimes 29, wherein the Hon'ble Delhi High Court had observed as under:-
If the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
32. Thus, it is clear that the matter has to be viewed with suspicion if the provisions of law are not strictly complied with.
33. Therefore, the prosecution's version regarding recovery of fake RC and motorcycle from accused Sanjay is extremely doubtful. It has already been discussed that the prosecution has not been able to prove that the fake RC was prepared/ altered by the accused persons. Therefore, in absence of any proof that either of the accused was the maker of the forged RC, the offense of forgery cannot be sustained against any of the accused persons. Consequently, the offense of forgery for the purpose of cheating (Section 468 IPC) can also not be sustained against the accused persons since the pre-requisite for the offense of section 468 IPC is forgery. In absence of proof of forgery, the offense of section 468 Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 14 of 23 IPC can also not be sustained. Therefore, it can be safely concluded that the prosecution has been unable to prove the commission of offense of section 468 IPC (forgery for the purpose of cheating).
II. Using as genuine a forged document (section 471 IPC)
34. Next, the offense under section 471 IPC is also clearly not made out in the present case. It is the version of the prosecution that
(i) a false FIR was lodged by the accused persons regarding theft of the motorcycle in order to claim insurance money by making a claim before insurance company that the motorcycle has been stolen; (ii) at the same time, the accused persons prepared a fake number plate and fake RC to sell the motorcycle to a third person and claim money from the sale of motorcycle as well.
35. However, there is no FIR on record where the theft of the motorcycle has been reported. Except for the oral testimony of the PWs that the accused persons disclosed that they had filed a false FIR to claim insurance money, there is no documentary evidence to prove the factum of registration of FIR. It is inconceivable that the IO did not investigate and procure a copy of the said alleged FIR when the entire prosecution case is based upon this alleged motive of the accused persons to claim insurance money based on false FIR.
36. Secondly, there is no insurance claim form on record in which the accused persons have claimed any insurance amount from any insurance company based on the alleged false FIR of theft. Again, the IO has admitted in his cross-examination that no such insurance claim form was recovered based on the disclosure of the accused Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 15 of 23 persons whereby they had disclosed that they had lodged a false FIR to claim insurance amount. No witness from any insurance company was examined or cited as a witness. There is no oral or documentary evidence that the accused persons ever made any insurance claim in relation to the theft of the motorcycle.
37. Lastly, there is no witness who has claimed that the accused persons used the forged RC to induce any person into buying the motorcycle with the fake number plate. In absence of the same, there is no evidence on record that the accused persons used the alleged forged RC in any manner.
38. In absence of proof of use of forged RC in any manner, the prosecution has completely failed to establish the essential ingredient of section 471 IPC, which requires use of the forged RC. In any case, the said 'use' under section 471 IPC is required to be done 'fraudulently or dishonestly'. Therefore, the term 'fraudulent or dishonest' intention is the sine-qua-non of the offense under section 471 IPC. Definition of the term 'dishonest intention' has been noted by the Hon'ble Supreme Court in the judgment of Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610:
71. Intention is the gist of the offence. It is the intention of the taker which must determine whether taking or moving of a thing is theft. The intention to take "dishonestly" exists when the taker intends to cause wrongful loss to any other which amounts to theft.
72. "Dishonestly" has been defined in Section 24 IPC, which reads as under:
"24. "Dishonestly".--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"."
73. "Wrongful gain" and "Wrongful loss" have been defined in Section 23 IPC, which read as under:
Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 16 of 23"23. "Wrongful gain".-- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss".-- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
39. Therefore, intention to take "dishonestly" exists when the taker intends to cause wrongful loss to any other or gain by unlawful means a property to which the person gaining is not legally entitled.
40. Moving on, the term 'fraudulently' has been defined by Sir James Stephen as (i) deception or intention to deceive; and (ii) injury or risk of injury. The said definition, propagated by Sir James Stephen, was accepted by Hon'ble Supreme Court of India in Vimla (Dr) v. Delhi Admn., 1963 Supp (2) SCR 585:
15. To summarize: the expression "defraud" involves two elements, namely, deceit and injury to the person deceived.
Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
41. Similarly, in Tulsi Ram v. State of U.P., 1963 Supp (1) SCR, it was held that the intention to cause damage or injury to the public or to any person is an element which has to be established before a fabricated document can be held to be a false document or a forgery.
42. Based on the aforesaid, it can be ascertained that in order to prove the offence under section 471 IPC, the prosecution is required to prove either wrongful gain or wrongful loss (to prove dishonest Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 17 of 23 intention) or a legal injury or risk of legal injury (to prove fraudulent intention).
43. To further substantiate, the Hon'ble Gujarat High Court, in Balkrishan Gopiram Goenka v. State of Gujarat & Ors, 2016 GLH (2) 29, has held that when the petitioner/ accused has not wrongfully gained anything and/or any wrongful loss is caused to the Department, there is no need to continue with the criminal prosecution against the petitioner:
16. I have considered the arguments canvassed on behalf of the learned advocates appearing for the parties. I have also gone through the documents produced on record. In the present case, the FIR came to be registered against one B.C. Macwana, the then Assistant Commissioner, Central Excise, Rajkot, M/s.
Welspun Gujarat Stahl Rohren Limited and against unknown person for the offences punishable under Sections 120B, 420, 467, 468, 471 and 511 of Indian Penal Code and under Section 15 of the Prevention of Corruption Act, 1988. After the investigation, a charge-sheet came to be filed against the officers of the aforesaid company including the present petitioner. From the record, it appears that the petitioner is the Managing Director of the company. The company passed a resolution in its Board Meeting and decided to apply for getting excise benefit as per Notification dated 31.07.2001 and therefore the company submitted an application on 24.12.2005. However, from the record, it appears that before the registration of the FIR, an application seeking withdrawal of the benefit, which was sought under Notification dated 31.07.2001, was submitted by the company and therefore the company has not received any wrongful gain on the basis of its earlier application dated 24.12.2005 and therefore no pecuniary loss is caused to the Department. Thus, the ingredients of the alleged offence punishable u/s. 420 of IPC are not attracted.
24. Learned advocate for the CBI also relied on the decision rendered by the Hon'ble Supreme Court in the case of Debendra Nath Padhi (Supra). However, the said decision cannot be applied in the facts and circumstances of the present case. It is true that at the stage of framing of charge, roving and fishing inquiry is impermissible and the material relied upon by the petitioner cannot be looked into while exercising powers under Article 226 of the Constitution of India read Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 18 of 23 with Section 482 of the Code. However, in view of the aforesaid discussion, when it is prima facie proved that the petitioner has not wrongfully gained anything and/or any wrongful loss is caused to the Department and the company and its officers including the petitioner have been granted immunity, in the opinion of this Court, there is no need to continue with the criminal prosecution against the present petitioner. Moreover, neither in the FIR nor in the charge-sheet any specific allegations are levelled against the petitioner that he has forged any document. Even otherwise, looking to the impugned FIR and from the papers of charge-sheet, the ingredients of the alleged offence are prima facie not made out so far as the petitioner is concerned.
44. Therefore, it can be concluded that if it is proved that the accused has not wrongfully gained anything and/or any wrongful loss is caused to any person or no legal injury is caused to any person, then the offense of forgery/ use of a forged document is not made out. In the present case, there is no use of the forged RC which can be said to have caused any wrongful loss/ wrongful gain or any legal injury since (i) there is no insurance claim which was filed by the accused persons; (ii) there is no FIR regarding false reporting of theft of motorcycle on record; and (iii) there is no victim who has claimed that the accused persons induced him/her into buying the motorcycle based on forged RC and fake numberplate. Accordingly, in absence of proof of any use/ use with dishonest or fraudulent intention, the prosecution has been unable to prove the ingredients of offense under section 471 IPC. III. Punishment for using a false property mark (section 482 IPC)
45. Next, the prosecution has contended that the accused persons affixed a false number plate on the motorcycle in order to sell the Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 19 of 23 same in market. However, the said fake number plate has not been seized by the IO. The alleged fake number plate, which was affixed on the motorcycle in question has never been produced before the Court. Further, there is no seizure memo in respect of the same on record. Not even a single photograph is on record of the alleged fake number plate. The IO has specifically admitted the said fact in his cross-examination that no photograph was taken of the number plate. Even if the motorcycle was released on superdari, the alleged fake number plate should have been kept in police malkhana and ought to have been produced in evidence. The court cannot presume something to be in existence which is not on record. Due to non- production of the alleged fake number plate, the story of prosecution that accused had kept the motorcycle with the fake number plate appears to be doubtful and the offense under section 482 IPC is clearly not made out in the present case.
IV. Recovery of stolen property (section 411 IPC)
46. Next, to consider the allegations qua section 411, IPC, it is pertinent to refer to the definition of 'stolen property'. It is defined in section 410, IPC and the relevant portion is as follows: "Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen property..."
47. The law on section 411, IPC was explained by the Hon'ble Apex Court in Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39 which was recently referred to in Shiv Kumar v. State of Madhya Pradesh, (2022) 9 SCC 676. It was held in Trimbak Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 20 of 23 (supra) that to bring home the guilt under section 411, IPC the prosecution must prove: (i) that the property was stolen; (ii) that the stolen property was in possession of the accused; (iii) that some person other than the accused had possession of the property before the accused got possession of it; and (iv) that the accused had knowledge that the property was stolen property.
48. A perusal of the above definition and case law shows that it is imperative for the prosecution to prove that the property in question was stolen property. However, the prosecution has failed in discharging the said burden in the present case.
49. As already discussed, there is no FIR on record regarding theft of the motorcycle and hence, theft of the motorcycle has not been established in the present case. It is imperative to note that the statement of the owner of the motorcycle, i.e., Ms. Sunita, was never recorded by the police at any stage. She was not cited as a witness in the witness list as well. There is no allegation/ complaint on record by the owner of the motorcycle that the said motorcycle was stolen. Therefore, the prosecution has failed to prove that the alleged motorcycle, recovered from the accused Sanjay, was a stolen property. In absence of the same, the offense under section 411 IPC is evidently not made out.
V. Criminal Conspiracy (section 120 B IPC)
50. Lastly, the offense under section 120-B IPC is also not proved in the present case since the said offence cannot be made out based on deemed presumption. The prosecution has not been able to prove, based on any material, existence of any agreement to hatch criminal conspiracy between the accused persons. The call-data-
Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 21 of 23records of the accused persons were not obtained by the IO to prove that there was any prior communication between the accused persons. No witness was even called to prove that either of the accused persons are known to each other, let alone to prove that there was any agreement between them. All the accused persons were arrested at different points of time from different locations, and it has not been proved that the accused persons were known to each other prior to their arrest. The entire case has been sought to have been made out on the basis of disclosure statements. Therefore, in light of any cogent material, no offense is made out under section 120-B, IPC as well.
CONCLUSION -
51. To recapitulate the above discussion, to bring home the guilt of the accused persons, the prosecution was required to prove the offences charged against the accused persons beyond reasonable doubt. The prosecution has not brought any independent witness to the stand. There is no evidence on record except the disclosure statement of accused persons, which is inadmissible in evidence. There are adequate doubts regarding the recovery of fake RC from the accused. Further, there is nothing on record to show that there was any attempt to cause any wrongful loss or legal injury to any person. The alleged fake numberplate was never seized. There is nothing on record to show that the motorcycle was a stolen property. Thus, there is no evidence on record to prove any of the charges. The evidence brought on record does not create confidence as there is no independent witness regarding forgery by accused persons.
Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 22 of 2352. In view of the above discussions, I am of the view that the evidence of prosecution witnesses does not inspire confidence and the same cannot be relied upon. Prosecution has failed to bring home the charge on any count against the accused persons beyond reasonable doubt and accordingly, all three accused persons are acquitted of the offences charged.
Pronounced in open court on 23.12.2022 in presence of the accused persons. This judgement contains 23 pages, and each page has been signed by the undersigned.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2022.12.23 17:35:21 +05'30' (DEVANSHU SAJLAN) Metropolitan Magistrate - 07 West District, Tis Hazari Courts, New Delhi/ 23.12.2022 Cr. Case No.59823/2016 State vs. Gulshan Kumar & Ors. Page 23 of 23