Delhi District Court
State vs . Aurbindo Padhi on 4 March, 2020
IN THE COURT OF SH. GAGANDEEP JINDAL : METROPOLITAN
MAGISTRATE :09 : SOUTH EAST DISTRICT : SAKET COURT : NEW
DELHI
State vs. Aurbindo Padhi
FIR NO. 489/2015
PS Defence Colony
U/s 406 IPC
Date of Institution of Case : 31.10.2018
Judgment Reserved for : 15.02.2020
Date of Judgment : 04.03.2020
1. CIS NO. : 7659/2018
2. The date of offence : 406 IPC
2. Name of the complainant : Ms. Deepali Bhardwaj
3. Name of the accused persons : Aurbindo Padhi S/o Sh. Damodar
parentage & residential addresses Padhi, R/o A352, Chattarpur Enclave
PhaseII, New Delhi110074.
4. Offence complained of or proved : U/s 406 IPC
5. Plea of the accused persons : Pleaded not guilty and claimed trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 04.03.2020
JUDGMENT
1 Complainant Dr. Deepali Bhardwaj lodged a complaint dated 28.11.2015 in PS Defence Colony. In the said complaint, it has been alleged that she has State Vs. Aurbindo Padhi Page 1 of 9 purchased a machine SMART XIDE 2 make DEKA COMPANY, ITALY for a sum of Rs.25 lacs from accused Aurbindo Padhi, Director of M/s Rukmani Medical Systems Pvt Ltd, The said machine did not function properly since day one. In the month of May 2015, accused took away the said machine from her clinic in hurry. After couple of days, accused informed complainant that he had sold the said machine to someone else for more than of Rs.20 lacs without her consent and promised the complainant to replace the machine with new one. But he failed to replace the machine. Hence, the present FIR was registered. 2 After completion of investigation and necessary documentation, charge sheet was filed in the Court. Copy of the chargesheet was supplied to the accused. On 04.01.2019, charge for the offence u/s 406 IPC was framed against the accused to which he pleaded not guilty and claimed trial. 3 Prosecution has examined total 11 witnesses to prove its case:
3.1 PW1 is Complainant Dr. Deepali Bhardwaj, who reiterated the facts mentioned in the complaint Ex.PW1/B. She has relied upon the print out of emails Ex.PW1/A, invoice Mark PW1/X, copy of cheque no.003451 Ex.PW1/C. During her crossexamination, she was confronted three installation reports Mark PW1/DWX, another document Ex.PW1/DWY, copy of notice dated 06.08.2018 Ex.PW1/DWZ, statement u/s 161 Cr.PC Ex.PW1/D4. During her crossexamination, PW1 has also produced a letter dated 01.08.2012 Ex.PW1/DW1 and invoice dated 01.08.2012 Ex.PW1/DW2, copy of complaint filed u/s 138 NI Act by complainant against accused which is Ex.PW1/D3 (colly).
3.2 PW2 Sh. Govind Kumar deposed that he is doing job in the clinic of complainant. One day accused took away the machine from the clinic of complainant.
3.3 PW3 Sh. Chander Prakash Shukla from HDFC Bank, Defence State Vs. Aurbindo Padhi Page 2 of 9 Colony, New Delhi, has produced the statement of account no.50200021514492 in the name of M/s Centre for skin and hair Pvt Ltd which is Ex.PW3/A. 3.4 PW4 Sh. Praveen Kumra from HDFC Bank, Geetanajali Enclave, New Delhi, has produced the statement of account no.06142020000185 in the name of M/s Rukmani Medical System Pvt Ltd which is Ex.PW4/A. 3.5 PW5 Sh. Gyan Chand from Union Bank of India, Neb Sarai, New Delhi, has produced the statement of account no.579101010050276 in the name of M/s Rukmani Medical System Pvt Ltd which is Ex.PW5/A. 3.6 PW6 Sh. Suraj Kumar from Indusind Bank, Lajpat Nagar, New Delhi, has produced his authority Ex.PW6/A, the statement of account no.200999446708 in the name of M/s Rukmani Medical System Pvt Ltd which is Ex.PW6/B and certificate u/s 65B Indian Evidence Act is Ex.PW6/C. 3.7 PW7 W/ASI Ratan Prabhda has deposed that on 19.12.2015, she had endorsed the rukka sent by SI Sushil Sanwaria vide DD No.26A Ex.PW7/A and registered the present FIR Ex.PW7/B and issued certificate u/s 65B Indian Evidence Act Ex.PW7/C. She handed over copy of FIR and rukka to SI Sushil Sanwaria.
3.8 PW8 Sh. Naval Kishore Gupta, Senior Technical Assistant, Office of Registrar of companies, NCR, Delhi and Haryana, has proved the letter dated 22.06.2018 Ex.PW8/A and the documents Ex.PW8/B (colly). 3.9 PW9 SI Sushil Sanwaria is IO of the present case. He deposed about the investigation conducted by him. He proved the endorsement Ex.PW9/A made by him on the complaint for registration of present FIR.
He had recorded the statement of witnesses u/s 161 Cr.PC and has filed the charge sheet after conclusion of investigation.
State Vs. Aurbindo Padhi Page 3 of 93.10 PW10 Mohd. Rizwi from HDFC Bank, Defence Colony, New Delhi, has proved letter dated 29.09.2018 and the statement of account no.50200013750176 in the name of M/s Skin and Hair Clinic which are Ex.PW10/A (colly).
3.11 PW11 Sh. Tarun Kumar from Standard Chartered Bank, DLF Gurgoan, has proved the letter dated 28.09.2018 and statement of account no.53305223882 in the name of M/s Rukmani Medical System Pvt Ltd which are Ex.PW11/A (colly).
4 After completion of prosecution evidence, the entire incriminating evidence was put to accused. Accused stated he had been falsely implicated in the present case. He had sold the said machine with the consent of complainant. 5 Accused has examined himself u/s 315 Cr.PC as DW1.
6 I have heard the arguments of Ld. APP for State and Ld. Defence Counsel and have gone through the case file. Written submissions have also been filed on behalf of complainant as well as of accused.
7 Ld. APP for State has stated that all the witnesses have fully supported the case of prosecution and therefore, accused should be convicted. 8 Ld. Defence counsel has argued that there are lot of contradictions in the testimony of complainant, therefore, she is not a reliable witness. The prosecution has failed to prove its case beyond reasonable doubt. 9 Before proceeding further, let us examine Section 405 IPC which defines criminal breach of trust as:
405 Criminal breach of trust Whoever, being in any 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 State Vs. Aurbindo Padhi Page 4 of 9 legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
10 For bringing home the guilt, prosecution has to establish that there is a dishonest misappropriation or conversion of the property to one's own use or dishonestly using or disposing of that property of willfully suffering any other person to do in violation of any legal contract made touching the discharge of the trust. The gravamen of the charge is that there should be entrustment of the property and thereafter dishonest misappropriation or conversion of the said property to own use and such dishonest using or disposing of property should be in contravention of any legal contract of any legal contract touching the contract of trust. Two of the essential ingredients of the above said section are "entrustment of property" and "dishonestly using or disposing off the property in violation of any legal contract express or implied".
11 In the present case, it has not been disputed by the accused that he had sold the machine to complainant and received the sale consideration of Rs.25.50 lacs. The only defence raised by the accused that the said machine was not entrusted to him for replacement with a new machine rather it was given to sell as a scrape because the cost of repair was huge. He paid Rs.8 lacs to the complainant after selling the machine. The said payment has been admitted by the complainant in her crossexamination.
12 To prove the entrustment of machine to accused, the prosecution has relied upon the oral testimony of complainant. There is no documentary evidence available on record to prove that the said machine was entrusted to the accused in anticipation of replacement with new machine.
13 In the complaint dated 28.11.2015 Ex.PW1/B, it has been alleged as follows:
State Vs. Aurbindo Padhi Page 5 of 9"... suddenly in the month of May 2015, the accused Mr. Aurbindo came to my office and took away the machine in a hurry in the presence of my staff. He then informed me over phone after couple of days that he has sold the machine to somebody else without my consent for more than Rs.20 lacs. He not only cheated me and broke my trust but also falsely made be believe that he was going to replace the machine with a new one...".
14 From these allegations it can be inferred that firstly accused suddenly took away the machine without consent and information to the complainant in May 2015 then after couple of days, accused informed that he had sold the machine to someone else. However, in her crossexamination, PW1/complainant has admitted that accused had taken away the machine with her consent. 15 Chapter VI of the Evidence Act which begins with section 91 which deals with the exclusion of oral by documentary evidence. It provides that, "when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary As, evidence is admissible under the provisions herein before contained." The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is sometimes described as the "best evidence rule". The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the State Vs. Aurbindo Padhi Page 6 of 9 Evidence Act.
16 PW1 deposed that accused told her that the life of machine will be atleast 12 years and gave her a written warranty of two years. But during her cross examination, she has admitted that written warranty of one year orally gave the guarantee of 12 years. However, in the invoice Ex.PW1/DW2, the warranty of one year from the date of installation of the system (excluding optical parts) was given. Moreover, in a complaint u/s 138 NI Act Ex.PW1/D3 filed by the complainant and notice dated 06.08.2018 Ex.PW1/DWY, complainant has admitted her that accused assured her at the supply of machine that the same was under warranty period of one year and any defect can be rectified free of cost. Thus, it is proved that guarantee of machine was one year only and not two years as claimed by the complainant.
17 Complainant has alleged that she has purchased the machine from accused for a sum of Rs.25.50 lacs however the invoice of the said machine Ex.PW1/DW2 is of Rs.31 lacs. When the complainant was confronted with this fact, she deposed that she wish to take the loan for the said machine therefore, she requested the accused to raise the invoice at higher amount of Rs.31 lacs though actual price machine was Rs.25.50 lacs. Complainant had paid Rs.25.50 lacs. This fact has not been disclosed by the complainant in her complaint Ex.PW1/B, nor in her statement u/s 161 Cr.PC Ex.PW1/D4. 18 On the other hand, accused has raised the defence that accused himself paid Rs.6.50 lacs towards the cost of the said machine against the invoice of Rs.31 lacs and became partner to the share of 25%. Accused has deposed on oath that the machine was sold for Rs.31 lacs and complainant paid 70% of its value and remaining 30% has to be managed by accused himself and by the company in order to use that machine for reference for further marketing purposes. 19 Complainant in her crossexamination has admitted that accused had State Vs. Aurbindo Padhi Page 7 of 9 taken the said machine for demonstration purpose thrice in different hospitals which further strengthened the defence raised by the accused. 20 Complainant in her complaint Ex.PW1/B has alleged that the accused sold the said machine for more than Rs.20 lacs to someone else but this fact has not been disclosed in her examination in chief. IO has not collected any evidence to prove that the said machine was sold by accused to anyone for more than Rs.20 lacs. Complainant in her crossexamination deposed that after dishonour of cheques a written agreement was executed for a sum of Rs.18.50 lacs whereby accused agreed to pay Rs.1 lac per month. Admittedly the said written agreement has not been filed on record.
21 The prosecution has relied upon the print out of email Ex.PW1/A. No certificate as required u/s 65 B Indian Evidence Act is placed on record to prove the authenticity of these emails. Hence, these emails are not admissible in evidence. Reliance in this regard can be placed upon the judgment of Hon'ble Apex Court of India in the case tiled as "Anvar P.V. Vs. P.K. Basheer", 2014 (10) SCC 473.
22 On the other hand, accused has also examined himself as witness and deposed on oath that in May 2015 complainant informed him about some defects in the machine which was caused due to her mishandling of the machine. The cost to procure the said defects was Rs.12 lacs therefore, complainant asked him to dispose off the machine at whatever cost without specifying any minimum price. He sold the machine as scape for Rs.88.50 lacs which he paid to the complainant. The complainant has admitted that she has received Rs.8.50 lacs. 23 In view of the above discussions, and appreciation of evidence led by prosecution, the above said contradictions in the statement of complainant, PW/Complainant is not a reliable witness. There is no other documentary evidence available on record to prove that the said machine was entrusted to State Vs. Aurbindo Padhi Page 8 of 9 accused because accused has promised to replace the old machine with new one. The prosecution has to stand upon its own legs to prove its case against the accused which it has miserably failed in this case. In this case, the prosecution as well as defence of accused solely depends upon the oral testimony of witnesses. The only star witness of prosecution is found unreliable. The accused stood to the test of crossexamination. His testimony remained unchallenged. 24 Therefore, this court is of the considered opinion that prosecution has failed to prove the basic ingredients required u/s. 406 IPC i.e. entrustment of machine. Further, there is no evidence on record to prove that accused has misappropriated the said machine by selling it for more than Rs.20 lacs to someone else. Hence, accused Aurbindo Padhi stands acquitted for the offence u/s 406 IPC. Digitally signed by GAGANDEEP GAGANDEEP JINDAL JINDAL Date:
Announced and signed in the 2020.03.05
15:42:31 +0530
open Court on 04.03.2020
(GAGANDEEP JINDAL)
MM09/SED/ND/ 04.03.2020
State Vs. Aurbindo Padhi Page 9 of 9