Delhi District Court
State vs Dharmender on 30 April, 2025
IN THE COURT OF SH. AKSHAY SHARMA, JUDICIAL
MAGISTRATE FIRST CLASS-02, SOUTH EAST, SAKET
COURTS, DELHI.
FIR No.190/1999
PS. OIA
U/s. 407/120B IPC
STATE VS DHARMANDER KUMAR
JUDGMENT
A. SL. NO. OF THE CASE : 527/2/01 B. DATE OF INSTITUTION : 13.07.2001 C. NAME OF THE : Jatinder Singh COMPLAINANT D. NAME OF THE : Dharmender Kumar s/o Acche Lal ACCUSED E. OFFENCE COMPLAINED OF : U/s 407/120B IPC F. PLEA OF ACCUSED PERSONS : Pleaded not guilty. G. FINAL ORDER : ACQUITTED H. DATE OF COMMISSION OF OFFENCE : 19.03.1999 I. DATE OF FINAL ARGUMENTS : 29.03.2025 J. DATE OF SUCH ORDER : 30.04.2025 BRIEF FACTS
1. Briefly stated facts of the instant case are that the present case FIR was registered on the complaint of Sh. Jatinder Singh of Capital Tempo and Transport Company, wherein he reported to the police that he got attached his vehicle bearing no.DL1LC8203 with Vimal Transport Corporation, Faridabad. The goods were loaded in the vehicle on Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2025.04.30 17:00:19 +0530 :2: 19.03.1999 by Berger paints India Ltd E-40/3, OIA-II and the vehicle had left OIA-II on 19.03.1999. the vehicle did not reach its destination in Jagdishpur. Enquries from the owner of the vehicle were made, however, no satisfactory response was given by the owner. Based on the complaint, the present FIR was registered and the investigation was undertaken. The relevant documents were collected from the complainant. Notice u/s 133 MV Act was issued to the registered owner of the vehicle namely, Ram avtar, the owner of the vehicle stated that his driver Dharmender Kumar (present accused) took the said vehicle and the goods were to be delivered by the driver. However, the driver had not come and he suspects that the driver has misappropriated the goods as well as the vehicle. Thereafter, efforts were made to trace the accused driver and the vehicle, initially the accused Dharmender Kumar was not traced and was declared a proclaimed offender. However, later on, accused Dharmender was apprehended in the present case. Thereafter, remaining aspects of investigation were completed and the charge-sheet was filed against 02 accused persons namely, Dharmender Kumar and Laxman Dubey for the offence u/s 407/120B Indian Penal Code,1860 (herein after referred as IPC).
CHARGE
2. On 08.10.2002, after hearing arguments on charge, charge u/s 407 r/w Section 120B IPC as well as a separate charge u/s 120B IPC was framed against both the accused persons. To which they pleaded Digitally signed by AKSHAY SHARMA AKSHAY Date:
SHARMA 2025.04.30
17:00:23
+0530
:3:
guilty and claimed trial.
3. Vide order dated, 08.01.2003 of the Ld. Sessions Court, the order on charge qua accused Laxman Dubey was set aside and accordingly, accused Laxman Dubey was discharged in the present case.
4. It is pertinent to note that accused Dharmender was again declared a proclaimed offender on 27.09.2011 and the case file was consigned on that day. Later on, the accused was apprehended and produced before this court on 25.01.2023, hence a charge u/s 174A IPC was also framed against accused Dharmender Kumar on 03.02.2023, the accused pleaded guilty to the charge u/s 174A IPC and was sentenced to the period of custody already undergone after his arrest in Kalandra.
PROSECUTION EVIDENCE
5. Prosecution in its support examined the following prosecution witnesses:
5.1. PW HC Narbie Singh was examined as PW1, his examination in chief is reproduced herein under:-
"On 27.03.99 while being posted at PP Okhla Phase II, HC Baliwan singh had given me rukka & sent to PS for registration of FIR. After doing the needful I handed. Rukka and copy of FIR to him at E- 40/3 Okhla Phase III, New Delhi, IO had questioned many people there & recorded my statement."Digitally signed by AKSHAY SHARMA
AKSHAY Date:
SHARMA 2025.04.30
17:00:28
+0530
:4:
5.2. PW Sh Ram Avtar was examined as PW2, his examination in chief is reproduced herein under:-
"I am the owner of Tata 407 number DL1LC8203. ON 19-3- 1999, i had entrusted the tempo to accused present the court who was employed on it as driver, and sent to Capital Tempo Transport Ajmerigate, Delhi, for being loaded. It was subsequently revealed that he had sent the tempo onward to M/s Vimal Transport, therefore, accused loaded the vehicle at Okhla as per their instructions, and proceeded to the destination, Jagdishpur UP, to Indo Gulf Fertilizers. The accused neither reached the destination nor came back. On 20-3-1999, at about 6:45 pm I had received a telephonic call from the accused stating that he is at a distance of about 5 km from Jagdishpur. He further stated that since 21-3- 99 will be Sunday, the tempo will be unloaded only on Monday. When he will return. He however, did not return. I went to PS Ajmeri Gate who called the owner of M/s Capital tempo transport and enquired from them. Sh Jatinder Singh of said transport company informed that they had already lodged an FIR in respect of this tempo and goods at PS OIΑ. Ροlice had served notice U/s 133 MV Act on me of which I had written reply Ex. PW2/A. Till date, I have not been informed about the recovery of my tempo. I have received its claim from Insurance Company. I had received I have seen the accused for the first time today in the Court after the date he had taken away the tempo."
5.3. PW SI B.Lakara was examined as PW3, his examination in chief is reproduced herein under:-
"On dt, 27.03.99 I was posted at PS OIA from 8am to 04pm. on that day, a rukka was sent by HC Balwan Singh. through Ct Narbir On the basis of which I recorded the Fir no. 190-99.and put my endorsement of rukka same is ex PW 3/A & I have brought the original FIR in court today Same is in my hand and signed by meat Pt A. Carbon copy of FIR is ex PW 3/B. 5.4. PW 4 Jitender Singh was examined as PW4, his examination Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2025.04.30 17:00:32 +0530 :5: in chief is reproduced herein under:-
"I am running my own business of transport in the name and style Capital Tempo Tpt Co. office situated at 203, Kamla Market N.D. Vehicle tata 407 bearing registration No.DL1LC 8203 was sent to Bimal Tpt Corp. The said vehicle was got loaded with berger paints by Bimal Tpt. Corp. from Berger Paints India Ltd. E-40/3, Okhla Ph-2 on 19/3/99 vide loading allotment slip No.6903 but the vehicle loaded with paint did not reach at its destination Jagdishpur UP till 26/3/99. Thereafter I made a written complaint to police which is Ex.PW-4/A which bears my signature at point A."
5.5 PW Durga Prasad Goel was examined as PW5, his examination in chief is reproduced herein under:-
"I am running my own business of Tpt in the name and style of Bimal Tpt. Corp. office situated at 17/6, Mathura Road, Fbd, HR. On 19/3/99 I had hired tata 407 bearing Reg, No.DLIL C 8203 from Capital Tpt. Co. Ajmeri Gate N.D. As the vehicle was having national permit and got loaded with Berger Paint from Berger Paint India Ltd. Okhla Ph-2 vide loading slip No.6903 to deliver the same Indo Gulf Fertilizer Jagdishpur UP. Accused Dharmender Present today in court was the driver of the said vehicle but the said vehicle loaded with paint did not reach at its destination till 26/3/99 I contacted Capital Tpt Co. owner Mr. Jatinder Singh. But we also informed that the vehicle had not come back till than after making the delivery at its destination. On 20/9/00 I joined the investigation with the police. I handed over copy of lorry challan and advance lorry payment voucher to the IO vide seizure memo Ex.PW-5/A which bears my signature at point A. I have brought the carbon copy of the challan and original of payment voucher. Copy of the same are Ex.PW-5/B and C. carbon copy of challan voucher and original of payment voucher seen and returned. Original chalan was handed over to Dharmender at the time of loading."
5.6. PW Satender Kumar Bhatnagar was examined as PW6, his Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2025.04.30 17:00:37 +0530 :6: examination in chief is reproduced herein under:-
"I am working as incharge central ware house in Berger Paints India Ltd. Office situated at E-40/3, ΟΙΑ. On 19/3/99 tempo tata 407 bearing reg. No.DLILC 8203 was hired from Bimal Tpt. Corp. Faridabad for sending paints to Jagdishpur Distt. Sultanpur UP to Indo Gulf Corp Unit Fertilizer, Jagdishpur Industrial Area. The said vehicle was loaded with 118 package having total weight 2300 kg at about 5 pm on 19/3/99. the said vehicle was by Bimal Tpt. Corp. from Capital Tpt. Co. Ajmeri Gate Delhi. The vehicle did not reach at its destination till 26/3/99 to deliver the paint. On receiving a telephonic message from Jagdishpur I contacted Mr. D.P. Goel owner of Capital Tpt. Co. I joined the investigation on 27/3/99 and handed over invoice cum challan form No.31 and the related documents of Bimal Tpt. Corp. IO prepared the site plan at my instance the same is Ex. PW-6/A. Accused Dharmender Kumar present in the court (correctly pointed out) was the driver of the said vehicle. The document seizure memo is Ex.PW-6/B. Further examination in chief was deferred for want of original documents."
5.7. PW SI Sodan Singh was examined as PW7, his examination in chief is reproduced herein under:-
"On 24/10/99 I received the case file for executing the NBW issued against the Dharmender, I went to village Siripur Kawaiya PS Goda Sahan Disit East Champaran Bihar and reached There 28/10/99. On 29/10/99 I along with SI T.N. Jha of Local Police went to the address given on NBW's. And from there I came to know that Dharmender is living in Delhi and driving a Tempo. I came back to Delhi and handed over the file to the IO on 2/11/99. My report on the NBW of accused Dharmencdier is Ex. PW.7/A bears my signature at point A."
6. Subsequent to the arrest of the accused after being declared a proclaimed offender, the case file was restored and the remaining prosecution witnesses were summoned. However, despite summons to Digitally signed AKSHAY by AKSHAY SHARMA SHARMA Date: 2025.04.30 17:00:42 +0530 :7: PW HC Birjender Singh, PW HC Balwan Singh & PW R.S. Garg, through DCP concerned also, the said witnesses were not traceable and accordingly, dropped from the list of witnesses.
STATEMENT OF ACCUSED.
7. After the completion of the prosecution evidence, statement of the accused was recorded and all the incriminating evidence was put to the accused, the accused stated that he was falsely implicated in the present case, the driver of the above said vehicle was Panchanand and Laxman Dubey was his brother. Accused further stated that his owner Ram Avtar has falsely implicated him in the present case to avoid payment of legitimate dues to him. He had left the job before the date of incident. Accused prefer to not lead any defence evidence.
DISCUSSION OF LAW, EVIDENCE AND DECISION THEREON.
8. I have heard the Ld. Counsel for the accused and Ld. APP for the State and also gone through the record. The cardinal principle of criminal law is that the accused is presumed to be innocent until proven guilty, the burden of proving the guilt of the accused is on the prosecution and the prosecution is to discharge that burden beyond reasonable doubt.
9. Accused Dharmender in the present case is charged with Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2025.04.30 17:00:47 +0530 :8: offences punishable u/s 120B IPC and Section 407 r/w Section 120B IPC. The allegation against the accused is that he entered into a criminal conspiracy with co-accused Laxman Dubey(already discharged by Ld. Court of Sessions.) to commit criminal breach of trust with the goods of Berger paint, entrusted to him as a carrier for the purpose of transporting them to Jagdishpur UP.
10. Qua the charge u/s 120B IPC, it is observed that an agreement to commit an offence is the foundation of an offence u/s 120B IPC, an agreement is necessarily between 02 or more persons (as provided u/s 120A IPC). In the present case, though co-accused Laxman Dubey was also charge-sheeted as a conspirator, however, the order on charge as to co-accused Laxman Dubey was set aside by the Ld. Court of Sessions on 08.01.2003. The discharge of co-accused Laxman Dubey led to the situation that the instant case survived/ sustained only qua the present accused Dharmender. The present accused Dharmender being the sole accused in the present case cannot be convicted for the offence u/s 120B IPC as in order to establish the factum of agreement to commit an offence, the prosecution had to indicate that apart from the present accused, some other persons have also been involved in the commission of offence. However, the prosecution has not presented this version of involvement of other persons.
Digitally signed by AKSHAY SHARMA AKSHAY Date:
SHARMA 2025.04.30
17:00:54
+0530
:9:
11. Even for the sake of argument, a benefit is given to the prosecution that other persons are also involved in the present case and have not been apprehended, the prosecution ought to had placed some material in the form of some communications or otherwise to indicate an existence of conspiracy in the present case. However, no such material has been placed by the prosecution.
12. In light of the above discussion, this court is of the view that in the absence of any other co-accused and the absence of any material as to proof of conspiracy, the charge u/s 120B IPC cannot be said to be proved beyond reasonable doubt by the prosecution.
13. Secondly, the accused is also charged with the offence u/s 407 r/w Section 120B IPC, since this court has already formed an opinion in the abovesaid paragraphs that charge u/s 120B IPC is not sustainable in the instant case, hence the further discussion/ analysis will be limited to ascertain the question that whether offence u/s 407 IPC is committed by the accused or not.
14. Section 407 IPC provides punishment to a person who while being entrusted with property as carrier commits criminal breach of trust in respect of such property. The criminal breach of trust has been defined under Section 405 IPC. The section provides that whosoever, being in any Digitally signed by AKSHAY AKSHAY SHARMA SHARMA Date:
2025.04.30 17:01:20 +0530 manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
15. Thus, in order to bring home the charge under Section 407 IPC, it was called upon the prosecution to establish the following fact in issue. (a) That accused Dharmender Kumar was employed as a driver of the truck bearing no.DL1LC8203 by registered owner/ PW2 Ram Avtar.
(b) That accused was entrusted with the consignment of Berger paints in his capacity as the driver. (c) That accused dishonestly misappropriated or converted the consignment of Berger Paints as well as the truck to his own use or (d) He dishonestly used or disposed off the misappropriated goods and truck.
16. In the present case, PW2 Ram Avtar, who is the registered owner of the truck DL1LC8203 has deposed in the court that the accused was entrusted with the said truck and employed as his driver, however, PW2 Ram Avtar has not placed any employment proof before the court. In the cross-examination, PW2 has stated that his driver Munna had gone on leave and before that Munna introduced him to accused Dharmender.
Digitally signed by AKSHAYAKSHAY SHARMA SHARMA Date:
2025.04.30 17:01:26 +0530 :11: PW2 admitted in cross-examination that he had not taken any photocopy of the DL of the accused or any documentary proof of identification before employing the accused. In light of these admissions of PW2 Ram Avtar, the employment of the accused with PW2 Ram Avtar becomes doubtful. In the opinion of this court, the initial driver Munna was also ought to be examined by the prosecution for establishing the factum of employment of the accused, however, this Munna is not cited as a witness by the IO, moreover as per the cross-examination of PW2 Ram Avtar, this Munna also accompanied the police party to the house of the accused. This court is of the view that non placement of employment proof and non examination of earlier driver Munna has created a doubt in the mind of this court as to the employment of accused.
17. Even the factum of employment proof is overlooked by this court and it is assumed that the present accused Munna was indeed the driver, the next ingredient required to be proved by the prosecution was entrustment of goods, PW5 Durga Prasad Goel is the essential witness in this regard, PW5 has stated that the goods were got loaded by him at Berger Paints India Ltd, OIA-II and the accused was the driver of the vehicle in which the goods were loaded. PW5 has proved the lorry challan Ex.PW5/B and the payment voucher Ex.PW5/C, it is stated by PW5 that the aforesaid documents bears signature of the accused at point X. Upon comparison of the signatures of the accused on Ex.PW5/B and Ex.PW5/C with the other signatures of the accused present on the Digitally signed by AKSHAY SHARMA AKSHAY Date:
SHARMA 2025.04.30
17:01:34
+0530
:12:
documents such as the disclosure statement, personal search memo, arrest memo and the statement of the accused recorded in the court, the signatures appear to be drastically different. The accused has put signatures in hindi on the documents present in the court record, whereas, the lorry challan and the voucher bears signature in english. The prosecution ought to had sent the specimen signatures and the questioned signatures to the FSL for comparison, however, the same has not been done. PW5 in his cross-examination has rather admitted that he was not present when the vehicle was loaded at Berger paints, moreover, the documents Ex.PW5/B & Ex.PW5/C bears no signature of PW5 itself. In light of the aforesaid discussion, the factum of entrustment also appears to be doubtful.
18. Proceeding further, it is stated that even the version of the prosecution regarding employment and entrustment is believed, the most important ingredient of an offence u/s 407IPC is misappropriation or conversion to its own use, of the entrusted goods by the accused.
19. In the instant case, neither the truck bearing no.DL1LC8203 has been recovered nor the goods of Berger Pains have been traced out. Though recovery of property is not the essence of Section 407IPC, however, non recovery or no proof as to misappropriation is a strong circumstance which can be considered in the favour of the accused.
Digitally
signed by
AKSHAY
AKSHAY SHARMA
SHARMA Date:
2025.04.30
17:01:39
+0530
:13:
20. The prosecution has not placed any material on record for establishing the ingredients of misappropriation or conversion to its own use of the entrusted vehicle and goods by the accused.
21. In view of the law and facts discussed above, it is concluded that the prosecution has failed to establish its case beyond reasonable doubts and prove the ingredients of Section 407/120B IPC. In view of the same accused Dharmender Kumar stands acquitted for the offence u/s 407/120B IPC.
Pronounced in the open court on 30.04.2025.
Judgment contains total 13 pages, each signed by the undersigned.
Digitally signed by AKSHAY AKSHAY SHARMA
SHARMA Date:
2025.04.30
17:01:44 +0530
(AKSHAY SHARMA)
JMFC-02/SE/Saket/ND
30.04.2025