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Delhi District Court

State vs . Naveen Pal on 24 April, 2023

           IN THE COURT OF SHRI YASHDEEP CHAHAL
            Metropolitan Magistrate­01 : New Delhi District
                  Patiala House Courts : New Delhi.

FIR No. 784/1996
P.S. : Connaught Place
Under Section : 174­A, 406, 420 IPC
State Vs. Naveen Pal

  ID number of the case       :                     New No. 16872/2018
                                                   DLND02­017942­2017
  Date of commission of       :           In Between 25.10.1994 to 29.11.1994.
        offence
 Date of institution of the   :                           21.11.1998.
          case                          (Kalandra under Section 41.1 (c) filed on 02.10.2018)
Name of the complainant :           Reader Admiral Suresh Mehta, C/o CMDE
                                     M.R. Khan, E­5/2, Sector­13, M.S. Flats,
                                            R.K. Puram, New Delhi.
  Name of accused and         :       Naveen Pal Singh, S/o Shri Ajeet Singh
       address                       Arora, R/o. H. No. 116­B, GH­10, Sunder
                                    Apartment, Paschim Vihar, New Delhi And
                                    Also At Plot No. 82/2, Flat No. 21, Jamuna
                                       Apartment, Sector­9, Rohini, Delhi.
 Offence Complained of        :          Under Section : 174­A, 406, 420 of the
       Or Proved                               Indian Penal Code, 1860.
   Offence charged of         :          Under Section : 174­A, 406, 420 of the
                                                Indian Penal Code, 1860.
Plea of the accused           :                        Pleaded not guilty
       Final order            :                             Acquitted
     Date of Judgment         :                             24.04.2023.


      BRIEF STATEMENT OF FACTS FOR THE DECISION



FIR No.784/1996   State           Vs.            Naveen Pal         Page No. 1
 1.

By this Judgment, I shall dispose of the case of the prosecution against accused Naveen Pal for the commission of offence punishable under Section 174­A, 406, 420 of the Indian Penal Code, 1860.

2. It is the case of the prosecution that between the period from 25.10.1994 to 29.11.1994, at unknown time and place, within the jurisdiction of Police Station Connaught Place, New Delhi, accused Naveen Pal dishonestly induced the complainant to handover a sum of Rs.1,42,075/­ (Rupees One Lakh Forty Two Thousand & Seventy Five Only) on the pretext of providing the complainant the stock purchased for him and issued cheques bearing Nos. 941109, 941110, 941111 and 941112 of Rs.40,000/­, Rs.30,000/­, Rs.45,000/­ and Rs.27,475/­ respectively. The cheques, on presentation, were dishonoured and thus, it was alleged that the accused had an intent to deceive right from the beginning, thereby causing wrongful loss to the complainant to the tune of Rs.1,42,075/­ and wrongful gain to himself. Thus, as per the prosecution version, the accused committed an offence punishable under Section 420 of the Indian Penal Code, 1860. In addition, it was also alleged that the accused was entrusted with the sum of Rs.1,42,075/­ by the complainant, however, the same was dishonestly misappropriated or converted to his own use. Thus, he allegedly committed an offence punishable under Section 406 of IPC. Notably, the accused could not be found during the investigation and was later declared as an absconder on 27.07.1998, as he failed to appear before the Court at the specified place FIR No.784/1996 State Vs. Naveen Pal Page No. 2 and time as required by proclamation dated 10.06.1998, published under Section 82 (1) Cr.PC. He was declared proclaimed offender vide order dated 27.07.1998.

3. Initially, after registration of case and during investigation, the accused absconded and was declared proclaimed offender. Subsequently, on 02.10.2018, he was arrested under Section 41(1)(c) Cr.PC and later, he was released on bail.

4. Thereafter, upon investigation, the I.O. filed supplementary charge sheet against the accused and cognizance was taken. Later, charges were framed against the accused under Section 174­A, 406 & 420 of IPC to which, the accused pleaded not guilty and claimed trial.

5. The matter was then fixed for prosecution evidence wherein the prosecution examined eight witnesses.

6. Firstly, the prosecution evidence was adduced u/s 299 Cr.PC in the absence of the accused as he was declared a PO in the case. PW­1 SI Rajender Kumar was examined as PW­1 on 12.09.2001 wherein he deposed that he had received the original complaint Ex. PW1/A on 21.06.1996. He further deposed that he conducted a preliminary enquiry in the matter and got the FIR registered through the duty officer on 31.08.1996. He further deposed that he tried to search the FIR No.784/1996 State Vs. Naveen Pal Page No. 3 accused and even obtained NBWs for the same, however, the accused could not be found and later, he was transferred.

7. Thereafter, as no other witness was available, the file was consigned to the record room.

8. Remaining prosecution evidence began on 15.10.2019 i.e. after the apprehension of the accused and after receipt of supplementary charge­sheet in the matter. The prosecution examined PW­1 ACP Laxmi Dubey, Posted at Juvenile Security Cell, Department of Woman and Child Development, GNCT, Delhi, who was working as duty officer on 31.08.1996 from 08:00 a.m. to 04:00 p.m. On that day, she registered the present FIR Ex. PW­1/A (OSR), bearing her signature at point A. She also made endorsement on the complaint Ex. PW­1/B, bearing her signature at point A. Subsequently, she handed over copy of FIR and original complaint to Sub­Inspector Rajender Kumar for further action.

9. PW­1 was not cross­examined by Ld. Counsel for accused despite opportunity.

10. ACP Surender Singh, No. 1/418, Posted at Special Branch, Asaf Ali Road, Delhi was examined as PW­2. He deposed on oath that on 08.10.1997, investigation of the present case was handed over to him. During investigation, he searched for the accused at his given address but the accused was untraceable. Hence, process under Section 82 of FIR No.784/1996 State Vs. Naveen Pal Page No. 4 Cr.PC Ex. PW­2/A, bearing his signatures at point A, was initiated against the accused and later process under Section 83 of Cr.PC Ex.PW­ 2/B, bearing his signatures at point A, was initiated. Application in this regard is Ex. PW­2/C, bearing his signature at point A. His statement regarding execution of process under Section 82 Cr.PC, recorded before the Court, is Ex. PW­2/E, bearing his signatures at point A. Thereafter, the accused was declared proclaimed offender. Accordingly, P.O. charge sheet was filed by him in the Court.

11. During his cross­examination, PW­2 deposed that he personally visited the house of the accused where his father met him. However, he did not approach the neighbour of the accused. He denied the suggestion that he never visited the house of the accused.

12. ACP Rajender Kumar, PIS No. 16890010, Posted at Security Unit, Saket Court Complex, New Delhi was examined as PW­3. He deposed on oath that on 21.06.1996, complaint Ex. PW­1/A (Now Ex. PW­3/A) was marked to him by the SHO and on the basis of complaint present FIR was registered on 31.08.1996. He further deposed that he searched for the accused but to no avail. Thereafter, on 20.05.1997, he got issued the NBWs against the accused vide application Ex. PW­3/B, bearing his signatures at point A, but the same could not be executed as he was transferred from the Police Station and case file was handed over to MHC (R).

FIR No.784/1996 State Vs. Naveen Pal Page No. 5

13. PW­3 was not cross­examined on behalf of the accused despite opportunity.

14. Head Constable Amit, No. 946/Crime, Eastern Range, Kondali, Delhi was examined as PW­4. He deposed on oath that on 01.10.2018, he was posted in P.O. Staff Cell. On that day, ASI Dinesh Kumar got the information through secret informer that the accused, who was proclaimed offender in the present FIR, may be found at his address if raided, as the accused was coming to home to meet his family members. The information was given to SHO telephonically and then ASI Dinesh apprised about the same to him and H.C. Braham Pal. Thereafter, he along with H.C. Braham Pal and ASI Dinesh Kumar went to Plot No. 28/2, Flat No. 21, Jamna Apartment, Sector­9, Rohini, Delhi. The accused was found at the gate and after telling him the facts of the case, the accused was arrested and personally searched by ASI Dinesh Kumar vide memos Ex. PW­4/A and Ex. PW­4/B, both bearing his signatures at point A. Thereafter, the accused was taken for medical examination at Aruna Asaf Ali Hospital and information regarding the same was given by ASI Dinesh Kumar to P.S. Connaught Place. Thereafter, the accused was produced before the concerned Court. Thereafter, I.O. recorded his statement in this regard. PW­4 correctly identified the accused in the Court.

15. During his cross­examination, PW­4 deposed that he did not know whether the accused was residing at the above said address FIR No.784/1996 State Vs. Naveen Pal Page No. 6 permanently or that no notice was served to him earlier in the present case. He further deposed that he did not know whether the accused was aware of FIR No.784/1996 against him or not as they were concerned with the P.O. matter.

16. ASI Braham Pal, No. 1490, Posted at Traffic Circle, Timar Pur, Delhi was examined as PW­5. He deposed on oath that on 01.10.2018, he was posted in P.O. Staff Cell. On that day, ASI Dinesh Kumar got the information through the secret informer that accused, who was proclaimed offender in the present case, may be found at his address, if raided, as the accused was coming to meet his family members at home. The information was given to the SHO telephonically and then ASI Dinesh apprised about the same to him and H.C. Amit. Thereafter, he along with H.C. Amit and ASI Dinesh Kumar went to Plot No. 28/2, Flat No. 21, Jamna Apartment, Sector­9, Rohini, Delhi. However, the accused was found at the gate and then after telling him the facts of the case, he was arrested and personally searched by ASI Dinesh Kumar vide memos, already Ex. PW­4/A and Ex. PW­4/B, both bearing his signatures at point B. Thereafter, the accused was taken for medical examination at Aruna Asaf Ali Hospital and information regarding the same was given by ASI Dinesh Kumar to P.S. Connaught Place. Thereafter, I.O. recorded his statement and the accused was produced before the concerned Court. PW­5 correctly identified the accused in the Court.

FIR No.784/1996 State Vs. Naveen Pal Page No. 7

17. During his cross­examination, PW­5 deposed that he did not know whether the accused was residing at the above said address permanently or that no notice was served upon him earlier in the present case. He further deposed that he did not know whether the accused was aware of FIR No.784 of 1996 against him or not as they were concerned with the P.O. matter.

18. S.I. Jaipal Singh, No. 5489/D, Posted at P.S. Connaught Place, New Delhi was examined as PW­6. He deposed on oath that on 01.10.2018, he was posted at P.S. Connaught Place, New Delhi. He further deposed that on that day, on receipt of information vide D.D. No. 82­B dated 01.10.2018 regarding arrest of accused Naveen Pal in case FIR No. 784/1996, who was declared proclaimed offender, he was informed that the accused was to be produced before the concerned Duty Magistrate, Patiala House Courts, New Delhi on 02.10.2018. The said D.D. entry was marked to Sub­Inspector Naresh. However, he was not available in the Police Station, therefore, on 02.10.2018, he acted upon the said D.D. Entry as directed, and received the case file from MHC (R). Thereafter, on 02.10.2018, he went to the Court of Ld. Duty Magistrate, Patiala House Courts where he arrested and personally searched the accused vide memos Ex. PW­6/A and Ex. PW­6/B, both bearing his signatures at point A respectively, after taking permission from the concerned Court. Thereafter, he recorded disclosure statement of accused Naveen Pal vide Ex.PW­6/C, bearing his signatures at point A. However, accused Naveen Pal refused to sign the same. Thereafter, FIR No.784/1996 State Vs. Naveen Pal Page No. 8 he recorded statement of constable Amit and ASI Dinesh Kumar of P.S. Burari, Delhi, who arrested the accused on 01.10.2018 in Kalandra under Section 41(1)(c) Cr.PC vide D.D. No. 67 dated 01.10.2018, P.S. Burari, Delhi. He also obtained copy of all the Kalandra proceedings relevant to the case. Thereafter, he handed over the case file to S.I. Naresh Kumar, who did further investigation in the present case. PW­6 correctly identified the accused in the Court.

19. During cross­examination, PW­6 S.I. Jaipal Singh deposed that he had not arrested the accused on 01.10.2018. He affirmed that he could not say about the manner of apprehension of accused on 01.10.2018. He further affirmed that he was not the I.O. of FIR No.784 of 1996 and did not have any personal knowledge about the facts of the present case. He further affirmed that further investigation was carried out by S.I. Naresh Kumar.

20. ASI Dinesh Kumar, No. 5190/Central District, Posted at Anti Auto Theft Squad, Maurice Nagar, Delhi­110007 was examined as PW­7. He deposed on oath that on 01.10.2018, he was posted at P.S. Burari as ASI in P.O. Staff Cell. On that day, he along with H.C. Braham Pal and Constable Amit departed from the P.S. in search of proclaimed offender of the present case in Sector­9, Rohini, Delhi, where secret informer met him, who was in his touch for the last one month regarding personal information and informed that accused was seen near the gate of Jamuna Apartment, Sector­9, Rohini, Delhi and if raided, he may be FIR No.784/1996 State Vs. Naveen Pal Page No. 9 apprehended. He further deposed that it was night time, at about 09:00 p.m., one person came from the Jamuna Apartment and was standing near the main gate and secret informer pointed out towards him as proclaimed offender Naveen Pal. Thereafter, the secret informer left the spot. Thereafter, he along with staff went to the gate and apprehended the said person, who disclosed his name as Naveen Pal Singh, S/o Shri Ajeet Singh, R/o Plot No. 82/2, Flat No. 21, Jamuna Apartment, Sector­ 9, Rohini. Thereafter, he arrested and personally searched the accused under Section 41(1)(c) of Cr.PC, after explaining the circumstances, vide arrest and personal search memos, already Ex. PW­4/A and Ex. PW­4/B, both bearing his signatures at point C respectively. PW­7 correctly identified the accused in the Court. PW­7 further deposed that custody of the accused was handed over to ASI Jaipal Singh of P.S. Connaught Place by the concerned Court on his production. Thereafter, ASI Jaipal Singh recorded his statement in respect of investigation conducted by him and took a photocopy of the Kalandra from him.

21. During his cross­examination, PW­7 deposed that he did not know whether the accused was residing at the above said address permanently or that no notice was served to him earlier in the present case. He further deposed that he did not know whether the accused was aware of FIR No.784/1996 against him or not as they were not concerned with the main case and only arrested the proclaimed offender being posted in P.O. Staff of P.S. Burari, Delhi.

FIR No.784/1996 State Vs. Naveen Pal Page No. 10

22. Sub­Inspector Naresh Kumar, No. D­5168, Posted at Police Station, Connaught Place, New Delhi­110001 was examined as PW­8. He deposed on oath that in the year 2018, he was posted at P.S. Connaught Place, New Delhi as Assistant Sub­Inspector and investigation of the present case was transferred to him in the month of December, 2018. Thereafter, he carried out further investigation and prepared the charge sheet for the offence under Section 174­A of IPC against accused Naveen Pal and filed the same in the Court. PW­8 correctly identified the accused in the Court.

23. During his cross­examination, PW­8 denied the suggestion that he did not conduct the investigation in fair manner or that he has deposed falsely being I.O.

24. Documents Ex. P­1 to P­11 exhibited by witnesses cited at Sr. no. 5 and 6 were admitted by the accused vide his statement u/s 294 Cr.PC dated 07.09.2022.

25. Upon the culmination of prosecution evidence, the matter was fixed for recording statement of the accused u/s 313 Cr.PC wherein the entire incriminating material was put to the accused to which he replied in the negative and stated that the entire case against him is false and fabricated. He further stated that he had made the entire payment to the complainant and the cheques were issued as security cheques, which were misused by the complainant. He further stated that he had changed FIR No.784/1996 State Vs. Naveen Pal Page No. 11 his residential as well as business address and thus, he did not receive any process from the Court.

26. No defence evidence was led on behalf of the accused.

27. Thereafter, the matter was fixed for final arguments. During the course of final arguments, Ld. Counsel for the accused submitted that the prosecution has failed to prove the ingredients of the offence in question. He further submitted that the prosecution story is inadequate for proving the offences in question and the prosecution has failed to prove the offences beyond reasonable doubt.

28. Per contra, Ld. APP for the State submitted that all the witnesses have supported the case of the prosecution despite elaborate cross examination and the case has been proved beyond any reasonable doubt, thereby warranting conviction.

29. I may now proceed to examine the case on merits through appreciation of evidence on record.

30. The cardinal principle of criminal law dictates that the primary burden to prove the case against the accused rests upon the shoulders of the prosecution. When the prosecution succeeds in discharging its burden, the burden shifts upon the accused who must be afforded a reasonable opportunity to rebut the same or to subject the FIR No.784/1996 State Vs. Naveen Pal Page No. 12 prosecution evidence to reasonable doubt in the eyes of the Court. Nevertheless, first and foremost, the prosecution evidence is to be sifted and weighed on its own merits and once the prosecution succeeds in proving its case, the burden shifts upon the accused. Notably, no occasion arises for shifting the burden upon the accused if the primary case of the prosecution itself has not been proved. It is also essential to note that the prosecution must prove all the ingredients of the offence i.e. the mens rea, actus reus and the link of causation between the crime and the accused.

31. I may briefly lay down the ingredients required for proving the offences under question. The offence of cheating, punishable under Section 420 IPC, requires the essential ingredients of deception, fraudulent or dishonest inducement, delivery of property as a result of such deception­based inducement. In Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696, the Hon'ble Supreme Court summed up the ingredients of cheating thus:

"9. The ingredients of Section 420 of the Penal Code are:

(i) Deception of any persons;

(ii) Fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."

FIR No.784/1996 State Vs. Naveen Pal Page No. 13

32. For proving the offence u/s 406 IPC, first and foremost, it is essential to prove the entrustment of property, followed my misappropriation thereof.

33. In the present case, none of the material witnesses have deposed regarding the allegation of cheating. In fact, the investigation itself regarding the offence of cheating is grossly inadequate. The accused declared as a proclaimed offender during the investigation phase and the main chargesheet was filed as a PO chargesheet with incomplete investigation. During evidence, the complainant could not be examined as his presence could not be secured despite multiple opportunities and service of summons through IO and also through the Naval Admiral as he was serving in Navy. Accordingly, he was dropped. All other witnesses are formal in nature and have deposed regarding the steps taken by them during the investigation. None of the witnesses is an accessory to the fact in question. Thus, none of the ingredients required for the culmination of offences u/s 406, 420 IPC could be proved.

34. Thereafter, upon apprehension, a supplementary chargesheet was filed, however, the supplementary chargesheet was only pertaining to the declaration of the accused as a proclaimed offender and included no material as regards the main offence in question. So far as the charge u/s 174­A IPC is concerned, the same is also not made as the FIR No.784/1996 State Vs. Naveen Pal Page No. 14 accused was declared as a proclaimed offender in the year 1998. The declaration of proclaimed offender was not an offence u/s 174­A IPC at that point of time. The offence u/s 174­A was included in the statute book in the year 2004. Article 20(1) of the Constitution expressly prohibits any punishment or incrimination on the basis of ex­post facto laws. The relevant clause reads thus:

"20. Protection in respect of conviction for offences.

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) ..."

35. Clause (1) of Article 20 expressly states that conviction can be made only for violation of the "law in force" at the time of commission of the offending act. The act in question i.e. non­appearance despite proclamation, was not an offence on the date of non­appearance. I suffice to say that the charge u/s 174­A is also not proved.

36. In view of the above discussion, I am of the considered opinion that the prosecution has failed to discharge its burden. The material ingredients of the offences in question have not been proved to the satisfaction of the Court. Accordingly, the accused Naveen Pal Singh stands acquitted from all the charges levelled against him.

37. Original documents, if any, lying on the file be released to the acquitted person forthwith upon due verification.

FIR No.784/1996 State Vs. Naveen Pal Page No. 15

38. File be consigned to the Record Room after due compliance and as per rules.

                                        YASHDEEP     Digitally signed by
                                                     YASHDEEP CHAHAL

                                        CHAHAL       Date: 2023.04.24 04:08:24
                                                     +0530



Announced in the open Court             (YASHDEEP CHAHAL)

On 24th April, 2023. M.M.­01 : New Delhi District : PHC New Delhi.

FIR No.784/1996 State Vs. Naveen Pal Page No. 16