Delhi District Court
State vs . Anil Kumar Mehta on 30 June, 2023
IN THE COURT OF SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020258052020
CNR No. DLSW020258052020
Cr. Case No.6288/2020
eFIR No.044509/2019
PS: Dwarka North
U/S: 379/411 IPC
State Vs. Anil Kumar Mehta
JUDGMENT
A. Sl. no. of the case : 6288/2020
B. Date of institution : 26.09.2020
C. Date of offence : 19.12.2019
D. Name of the complainant : Naveen Kumar s/o Jai Pal
R/o Village Asalarpur Khurd, Post
Office Daultapur, New Delhi-110043.
E. Name of the accused : Anil Kumar Mehta s/o Prem Chand
Mehta
R/o H.No. BG-366, Bagdola, Sector-8,
New Delhi.
F. Offence complained of : U/s 379/411 IPC
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.1 of 23
G. Plea of accused : Pleaded not guilty
H. Final order : Acquitted u/s 411 IPC &
Convicted u/s 379 IPC
I. Date of such Judgment : 30.06.2023.
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
A. FACTUAL MATRIX:-
1. The prosecution had filed a charge sheet against the accused Anil Kumar Mehta on the allegations that on 19.12.2019 between 01.15 PM to 02:00 PM at basement parking, City Center mall, Sector-12, Dwarka, the accused committed theft of car bearing registration number DL-14CD-1378 belonging to the complainant Naveen Kumar. He was later traced out from the CCTV footage of the mall, coming into the mall parking on a scooty and allegedly seen taking away the car without the permission of the complainant. Later on, date 22.12.2019 at an unknown time the accused came to the PS Dwarka North and handed over the said stolen car to IO/ ASI Ram Kishan.
B. INVESTIGATION AND APPEARANCE OF ACCUSED:-
2. The statement of the complainant was recorded by the IO and the FIR was registered. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed for commission of offences U/Sec. 379/411 Indian penal Code, 1860 (hereinafter for brevity 'IPC').
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.2 of 23
3. After taking cognizance of the offence, the accused was summoned to face trial vide order dated 22.01.2021.
4. The accused was summoned in the Court. The compliance of Section 207 Criminal Procedure Code, 1973 (hereinafter for brevity 'CrPC') was made and the charge sheet along-with documents was supplied to the accused. Vide order dated 05.08.2022 charge under sections 379/411 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
C. PROSECUTION EVIDENCE:-
5. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
Oral Evidence:-
i. PW-1, Sh. Nishant, eye-witness to the incident; ii. PW-2, Complainant Sh. Naveen Kumar;
iii. PW-3, Sh. Amit Gupta; and iv. PW-4, ASI Ram Kishan, IO of the case Documentary Evidence:-
i. E-FIR number 044509/2019 dated 21.12.2019 ii. Certificate under Section 65B of Indian Evidence Act iii. DD number 84A dated 23.12.2019.
6. For a better appraisal of the case at hand the testimonies of the prosecution witnesses is elaborated hereinbelow:-
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.3 of 23 i. The complainant namely Naveen Kumar (PW-2, who was summoned on application of Ld. APP for the State under Section 311 CrPC as he was not made a witness by the IO) has consistently deposed on the lines of his complaint. He has deposed that on 19.12.2019 at 1:15 PM he had parked vehicle bearing registration number DL-14CD-1738 in the Basement-II parking of City Centre mall Sector 12, Dwarka where he used to run a shop. He further deposed that when he came back to the parking at about 02:00 PM he saw that the vehicle was missing from the place where he parked it. It is further deposed by PW-2 that he also checked the CCTV footage of the cameras stalled in the parking and saw two persons coming on a scooty, parked their scooty at basement-I and thereafter they both came to basement-II and one of them left the parking with his car and the other left with the scooty. He further deposed that he had also kept Rs. 3,80,000/- cash in his car which he had withdrawn from the account of his company. He further deposed that he had purchased the said Baleno car from one Amit Gupta for an amount of Rs. 2,50,000/- for which he paid party through account and partly in cash. He further deposed that Amit Gupta also handed him over the RC of the car and security cheque of Rs. 2 lacs stating that the car is on loan and security cheque was being handed over in case he is not able to pay the installment.
He further deposed that he made a call at 100 number, upon which the police reached the spot and CCTV was checked to trace out the registration number of the scooty. He further deposed that thereafter he made a complaint in his writing to the police, which was exhibited as Ex. PW-2/A and also got prepared the site plan at his instance. PW-2 further deposed that he handed over the CCTV footage of the parking area to the IO in a pen drive and FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.4 of 23 also gave to him a certificate under Section 65B of Indian Evidence Act, 1872 (hereinafter for brevity 'IEA'). The said pen drive was played in the court and the accused could be seen in the same. Accused was correctly identified by the witness in the CCTV footage and in the court too. He also identified the car in question from photographs on record.
In his cross-examination by Ld. defence counsel PW-2 deposed that he also had another car which he had purchased on loan. He further deposed that he was aware that after the entire re-payment of loan amount the bank gives an NOC to the owner of the vehicle and without an NOC the vehicle cannot be transferred which is against loan. He further deposed that he did not know the accused prior to the incident and that he first met the accused in the PS Dwarka North on 23.12.2019. He further deposed that he had purchased the car from Amit Gupta towards the end of 2017 or beginning of 2018. He further deposed that he also handed over the documents of sale to the IO. He further stated that he had not done any paper work at the time of the purchase of car and that he knew Amit Gupta from a common friend for about 3-4 months from the date of purchasing the car. He further deposed that Form 29 was duly filled by him at the time of purchasing the car and that both were handed over to him by Amit Gupta in his restaurant. He further denied the suggestion that he had not made a call at number 100 on 19.12.2019 and accepted as correct that he had not mentioned the same in his statement Ex. PW-2/A. He further deposed that he cannot show any message that he had made a call at number 100 and stated that he was not able to remember if he had gone to the PS Dwarka North on the date of the incident. He further deposed that delay in FIR was because he checked the CCTV footage himself.
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.5 of 23 He further deposed that ASI Ram Kishan checked the CCTV footage after he had made a call at number 100. He further stated that he had received only one car key and that he had parked the car at basement-II in parking specifically allotted to him being the restaurant owner. However, he was not able to produce any document to that effect. He further denied the suggestion that car parking is available at Basement-I and voluntarily added that the same is reserved only for two wheelers. He further deposed that there is parking entry/exit register of the City Centre mall. He further added that he being the owner of restaurant there his car number is not usually written in the said register. He further deposed that he had not called Amit Gupta any time for the transfer of the RC of the car and voluntarily added that it would be transferred about 2.5/3 years. He further stated that he checked the entry register and thereupon he came to know about the registration number of the scooty. He further deposed that he had not handed over to the IO the CCTV footage showing him entering the mall with the car at 01:15 PM as the IO had not asked for the same. He further deposed that he had not moved the superdari application for the car and further deposed that he had not stated in his complaint that the RC of the car was also stolen and that the said fact is also not there in the online FIR. He further denied the suggestion that the car was never in his possession and also denied the suggestion that he never took the original RC of the car from Amit Gupta. He further deposed that he had got the PUC and insurance of the vehicle while the same was in his possession. He further denied the suggestion that he had intentionally not given the CCTV footage of the entry of the car and that he had filed the instant case only to extort money from the accused. He further denied the suggestion that he had FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.6 of 23 business dealings with the accused and the present transaction is only qua the same.
ii. PW-1 Nishant, eye-witness to the incident of alleged theft; who went to the parking of the City Centre mall along-with the accused on the date of the incident, deposed that the accused was his boss at that time. He further deposed that he received a call from the accused in the morning that his index finger of left hand had got injured and he is not in a state to drive the motorcycle thus requested him to drop him to City Centre mall to pick up his Baleno car from where it was parked. He further deposed that he picked up the accused from his house in Sector-08 Dwarka and dropped him at City Centre mall at about 11:00 AM in the basement by his scooty bearing registration number DL-9SBV-2978. He further deposed that he did not remember the exact date of the incident but stated that it must be in the month of November- December 2020. He was also cross-examined by Ld. APP for the State qua the registration number of the Baleno car and accepted the suggestion that registration number of the Baleno car was DL-14CD-1738 and that he had dropped his boss i.e., the accused at the mall on 19.12.2019. He correctly identified the Baleno car from photographs on record and also identified the accused in the court.
In his cross-examination by Ld. defence counsel he deposed that he was working as a fire-fighter under the accused at the time of the incident. He further deposed that he was working with his boss for the past four years and stated that he was having cordial relations with him. PW-1 further deposed that the accused told him that his car was mortgaged. He further deposed that he first went to pick up the accused from his home and then went FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.7 of 23 to the hospital which took around 20-25 minutes. He further deposed that no one met the accused while he was with him. He further accepted as correct the suggestion that there was car parking at Basement-I of the City Centre mall and stated that there was space for car parking. He further deposed that he straight-away took the scooty towards the said car and stated that he did not remember the date when the scooty was seized at the PS. He was also asked by Ld. defence counsel as to whether any amount was asked by the IO to settled the case, however the question as disallowed being irrelevant. He denied the suggestion that while on the way to City Centre mall the accused met Amit Gupta who handed over the original car key to the accused and told him the exact location where the car was parked. He lastly deposed that the accused had original car keys with him.
iii. PW-03 Amit Gupta deposed that he is running an office of property dealing at Janakpuri. He deposed that in the year 2018, accused Anil Kumar Mehta came to his office and told him that he is in urgent need of rupees three lacs and showed him the documents of his Baleno car bearing registration no. DL-14CD1738 and upon his satisfaction the accused left his car with PW-3 with one key and thereafter, left his office. He further deposed that the next day in after noon he handed over Rs.3 lacs to the accused on interest for a period about three months. PW-3 further deposed that the accused told him that PW-3 may not use the car and he will return the money with interest after three months. PW-3 further deposed that sale letter of the car was also signed by him and original documents of the car were handed over to PW-3 by him.
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.8 of 23 PW-3 further deposed that after the expiry of three months, he made a call to the accused but he did not pick-up the call whereupon PW-3 started using the car and one day, he came to know that the installments of the car were not being paid on time. PW-3 further deposed that his friend with whose reference Anil Kumar Mehta approached him, also introduced him to Naveen. PW-3 further deposed that he went to office of Naveen and showed him all the original documents and told him entire facts whereafter sold the said car to Naveen and handed over to him all the original documents. PW-3 further deposed that he told to Naveen the entire facts and even told him that installments of the car are not being paid by the accused. PW-3 further deposed that one day he received a call from PS Dwarka North that he had committed the theft of the above said car, upon which he went to PS and gave his statement to the SHO which is now exhibited as Ex. PW-3/A, bearing his signature at point A. He lastly deposed in his examination-in-chief that after seeing the CCTV footage the police set him free. PW-3 correctly identified the correctly identified the Baleno car from photographs on record and also identified the accused in the court.
In his cross-examination by Ld. defence counsel PW-3 deposed that he is Class X pass and that he did not sell the car to Naveen. He further deposed that he was not having any document with regard to handing over the car to Naveen. He further deposed that he is also the owner of another car which he had purchased on loan and accepted as correct the suggestion that the NOC/free-hold certificate of the vehicle is given by the bank and that a vehicle on loan cannot be sold or sub-let. He further deposed that he had not committed any offence by handing over the car to Naveen without the consent FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.9 of 23 of Anil Kumar Mehta. He further deposed that he was not able to talk to Anil Kumar Mehta before handing over his car and voluntarily added that the accused did not pick up his phone. PW-3 further deposed that he did not know the accused Anil Kumar Mehta prior to year 2018. He further deposed that he tried to reach Anil Kumar Mehta on his house but was not able to trace him on his residence or his office. He denied the suggestion that he never visited Anil Kumar Mehta's residence or office. He further deposed that he went to airport i.e., T-3 cargo area as accused told him that he used to work there. He further denied the suggestion that he never visited T-3 cargo area at any point of time. He further deposed that after the lapse of about five months of receiving the car, he called Anil Kumar Mehta on his phone and also deposed that after handing over the car to Naveen, he never made effort to contact Anil Kumar Mehta. He also denied the suggestion that he had threatened the accused Anil Kumar Mehta through messages. He further deposed that he did not remember whether at the time when he handed over Form No. 29-30, it was filled or not. He further deposed that he had arranged Form No. 29-30 from his friend which was thereafter, signed on the same in his office in his presence by Anil Kumar Mehta. The photo copies of form number 29 and 30 were exhibited as Ex. PW-2/D-1 (Colly), the same was neither opposed by the Ld. counsel for the accused nor by the Ld. APP for the State. He further deposed that Ex. PW- 2/D1 (Colly) is not in his handwriting. He further deposed that he thinks that both the forms are filled in the same handwriting of same person. He further deposed that the police came to his house and he went to PS along with them. He further stated that he had not received any call from complainant Naveen after the car was stolen. He further deposed that he had not asked anytime for the second key of the car from the accused Anil Kumar Mehta. PW-3 lastly FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.10 of 23 denied the suggestions that he was having both the keys of the car or that he was deposing falsely.
PW-3 was also re-examined by Ld. APP for the State as some new facts had emerged in his cross-examination by Ld. defence counsel, after due permission from the court. In his re-examination he deposed that he had mortgaged his car to complainant Naveen and took Rs.2.50 lacs from him and handed over the car, one car key, original RC and other papers of the car to him.
PW-3 was thereafter cross-examined by Ld. defence counsel after his re-examination wherein he deposed that he did not have any right to sub- let the car in question through RBI or NBFC. He lastly denied the suggestion that he was never handed over the original RC by accused Anil Kumar Mehta at any point of time.
iv. PW-4 ASI Ram Kishan stated that in the year 2019, he was posted at PS Dwarka North as ASI. He deposed that the investigation of the present case was marked to him after registration of e-FIR and during the investigation he reached at City Centre Dwarka and after reaching there he served notice under Section 91 CrPC which was exhibited as Ex. PW-4/A bearing his signature at point A to complainant Naveen for providing CCTV footage and ownership documents of the vehicle. He further deposed that the complainant provided him the CCTV Footage in a pen drive and certificate under section 65 B IEA which is already exhibited as Ex. PW-2/C and during the investigation he seized the above said pen drive and some other documents (photocopy of sale letter and photocopy of RC) vide seizure memo Ex. PW-
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.11 of 23 4/B and the pen drive was marked as Ex.P1. He further deposed that during the investigation he also seized the scooty bearing registration no. DL-95BV- 2978 vide seizure memo Ex. PW-4/C and also seized the car (Baleno) bearing registration no. DL-14CD-1738 from the possession of the accused vide seizure memo Ex. PW-4/D. PW-4 further deposed that during investigation he served notice under Section 41A CrPC to the accused which was exhibited as Ex. PW-4/E and released him after executing a pabandinama which was exhibited as Ex. PW-4/E1. PW-4 further deposed that he also recorded the statement of the accused and during investigation also served notice under Section 160 CrPC to Nishant and Amit Gupta which were exhibited as Ex. PW-4/F and Ex. PW-4/G respectively. He further deposed that Nishant gave his reply dated 23.12.2019 in response to the notice u/s 160 CrPC and during investigation his bank account statement was also provided by Nishant which was also seized. He further deposed that during investigation, he also served the notice under Section 160 CrPC to the accused which was exhibited as Ex. PW-4/J and the accused gave his reply in response to the notice u/s 160 CrPC was exhibited as Ex. PW-4/K. He further deposed that during investigation he also recorded statement of the witnesses under section 161 CrPC. PW-4 correctly identified the accused present in court today and also correctly identified the photographs of the scooty bearing registration no. DL-9SBV- 2978. He lastly deposed in his examination in chief that after completion of the investigation he submitted the charge sheet before the concerned court.
In his cross-examination by Ld. defence counsel PW-4 deposed that he was posted at PS Dwarka North from 2018 to 2022. He further deposed that he had asked for proof of ownership from the complainant and FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.12 of 23 the complainant had given him the photocopy of RC and sale letter. PW-4 further deposed that he had asked the complainant to produce copy of Insurance and PUC however; the complainant did not provide him the same and stated that the documents were in the car only. He further deposed that he had not issued any notice under Section 91 CrPC to the complainant in this regard. He further deposed that as per the RC the owner was Anil Kumar Mehta i.e. accused and that he had verified the RC ownership from the RTO office. However, he later added that he had not verified the RC, Insurance and PUC from the RTO. PW-4 accepted as correct the suggestion that the complainant has not filed any proof of documents which prove that the complainant was in possession of the stolen vehicle. PW-4 further deposed that he had seen the CCTV footage in which two persons could be seen coming on Scooty and getting the down from the same and one person out of the two opened the vehicle in question bearing registration no. DL-14CD- 1738 and drove it away. He further deposed that he had not seen the CCTV Footage of morning of the incident to see as to who had parked the vehicle in question there in the first place. PW-4 denied the suggestion that no call at 100 number was made in regard to the said incident on the date of the incident. PW-4 further deposed that he had not placed any documents on record showing the said 100 number or name of the caller. PW-4 denied the suggestion that he had not placed any such document because no such call was ever made on 19.12.2019 by the complainant or any other person in regard to the incident. PW-4 accepted as correct the suggestion that a register is maintained at the entry of car parking in which the entry and exit of the vehicles are noted. He further stated that he had not seen/ verified the said register in regard to the alleged stolen vehicle in question. He further denied FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.13 of 23 the suggestion that he had seen the said register to fetch out the registration number of the Scooty but voluntarily added that he had seen the registration of the Scooty in the CCTV Footage. PW-4 further denied the suggestion that the registration number is not visible in the CCTV Footage and stated that he had not sent the CCTV footage to FSL for checking its authenticity or to check if it was doctored. He further deposed that he had not inquired from any other public person or employee of the parking lot that the vehicle belonged to the complainant. He further deposed that he had not verified the signature of transferor on Form no. 29 and Form no. 30 as provided by the complainant. He further deposed that he had also not sent the Forms for verification of signatures and other particulars to FSL. PW-4 further deposed that he had not moved any application for obtaining the signatures of accused Anil Kumar Mehta to compare the same on the aforesaid forms.
PW-4 was also confronted with the Insurance of the vehicle bearing registration no. DL-14CD-1738 which had expired on dated 27.03.2018 and was marked as Mark X. Thereafter, the following question was put to the witness:
Q. Was there any other Insurance of vehicle bearing registration no. DL- 14CD-1738 after 27.03.2018?
He answered that he did not know. He further deposed that he had also not verified the same from anywhere.
PW-4 further deposed that he had not given any notice to the Mall authority for obtaining the CCTV Footage and stated that he had also not given any notice to the mall authority for certificate u/s 65 B IEA. He deposed FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.14 of 23 that the complainant had given him the Certificate u/s 65 B IEA. He further deposed that the Security agency of the mall has all the controls of the CCTV Footage and that he had not taken any certificate u/s 65 B IEA from the said mall authorities. PW-4 further deposed that he had also not verified it from the CCTV agency and that he had seen the CCTV Footage only in the pen-drive provided by the complainant. He further deposed that he did not know in whose possession the original RC is. He accepted as correct the suggestion that the FIR nowhere mentions allegation of theft of RC or other documents. He further deposed that he had not made any public witness a witness in the seizure memo. PW-4 further denied the suggestion that he had not made any public witness a witness in the seizure memo as the said incident had never happened. He accepted as correct the suggestion that the amount of Rs. 3.80 lacs allegedly stolen was never recovered. He further denied the suggestion that he along-with complainant Naveen and witness Amit Gupta had created concocted story to falsely implicate the accused.
7. No other PW was examined by the prosecution despite opportunities given and vide order dated 25.04.2023 the prosecution evidence was closed.
D. STATEMENT OF ACCUSED AND DEFENCE EVIDENCE:-
8. In the statement recorded under section 313 CrPC accused denied the offences alleged against him that he committed the theft of the Baleno car bearing registration number DL-14CD-1738 of the complainant. He claimed to be innocent. Accused stated in his defence that on the day of the incident Amit Gupta handed him over the original RC and original key of Baleno car FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.15 of 23 and upon the instructions of Amit Gupta he reached the basement of the mall and took the above-said Baleno car. He did not lead any defence evidence despite opportunities given to him. Thereafter, the defence evidence was closed and matter was fixed for final arguments.
F. FINAL ARGUMENTS AND INGREDIENTS OF THE OFFENCE:-
9. Sh. Pankaj Gulia, Ld. APP for State has argued that the prosecution has successfully proved the case. He has drawn attention of the Court to the oral and documentary evidence led by the prosecution. On the other hand, Sh. Amit Sharma Ld. Counsel for the accused has submitted that the accused was innocent and falsely implicated by the police.
10. I have heard the arguments as advanced by Ld. APP for the State and accused and perused the oral and documentary evidence available on record.
11. The accused in the present case has been charged with offences under Section 379/411 IPC. To prove the case against the accused under Section 379 IPC, the prosecution was required to prove the following facts:
a. That the property in question was a movable property;
b. That such property was in possession of the complainant;
c. That the accused moved such property whilst in the possession of that person;
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.16 of 23 d. That the accused did so without the consent of such person;
e. That the accused did so dishonestly;
f. That the accused did so with intent to cause wrongful loss to that person or wrongful gain to himself
12. In Trimbak Vs. The State of Madhya Pardesh, AIR 1954 SC 39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under Section 411 IPC the prosecution was required to prove the following facts:
a. That the stolen property was in the possession of the accused, b. That some person other than the accused had possession of the stolen property before accused got possession of it, and c. That the accused had knowledge that the property was stolen property.
13. The term Stolen Property has been defined U/s 410 of IPC.
Section 410 IPC reads as under:
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", whether the transfer has made, or FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.17 of 23 the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
14. Starting with the ingredients of Section 379 IPC, the vehicle is admittedly a movable property and there cannot be any quarrel with regard to the said aspect.
Now, coming on to the second ingredient i.e., the property was in possession of the complainant. At this stage, it needs to be appreciated that the chain of circumstances leading to the complainant having possession of the property is that the accused allegedly handed over the car without actually transferring it (i.e., only by allegedly executing form 29 and 30), to PW-3 Amit Gupta. It is further the case of the prosecution that thereafter the car was sold by Amit Gupta to the complainant. The copy of Form 29 and 30 were provided by the complainant to the IO, which during the course of cross- examination of the complainant by defence were exhibited. However, the defence had not raised any objection to the said photocopy. Moreover, the defence also did not give any suggestion as to the signatures on the said form 29 and 30 i.e., no suggestion was given that the signature on the said documents did not belong to the accused. PW-3 has also appeared in the dock and supported the prosecution case deposing that he transferred the vehicle to the complainant. Furthermore, another question that comes up at this juncture is that if the complainant did not have the possession of the car in question, then why the same would be parked in the parking of his restaurant. Another FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.18 of 23 aspect that needs to be appreciated is that the defence of accused throughout the trial and even at the stage of his statement under Section 313 CrPC is that the he picked up the vehicle on being told by Amit Gupta to pick the same from there and he was told the location of the vehicle by Amit Gupta. Accordingly, it can be seen from the suggestions put to the prosecution witnesses and other testimonies on record that the vehicle was in possession of the complainant. Thus, considering the above circumstances this court is of the view that the prosecution has succeeded in proving that the vehicle was in the possession of the complainant.
Now, coming on to the other ingredients i.e., the accused moved such property whilst it was in the possession of the complainant and that it was done without the consent of the complainant stand proved considering that the fact that the complainant i.e., PW-2 has supported the prosecution case throughout his deposition and has withstood the cross-examination that the property was in his possession and parked by him at the spot. It needs to be appreciated that Certificate u/s 65 B IEA produced by the prosecution has been signed and certified by the complainant Naveen. However, the complainant as well as the IO have distinctly deposed that the CCTV Camera were in the possession and control of the security agency of the said Mall where it was installed. In light of the same, this court is of the view that the CCTV footage is not proved as per requirements of Indian Evidence Act and thus cannot be relied upon. At this juncture the testimony of PW-1, the eye- witness who has clearly stated in his examination-in-chief and cross- examination that he took the accused to the place of incident at his directions and the accused after reaching the spot took away the vehicle after opening it FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.19 of 23 with the keys. Furthermore, no suggestion was ever put by the defence to PW- 1 that the said incident never happened or he was not a witness of the same. Thus, the said allegation stands proved that the vehicle was taken by the accused out of the possession of the complainant without the consent of the complainant.
Next, coming on to the aspect of mens rea, i.e., dishonest intention, it needs to be appreciated that the defence of the accused throughout the course of trial is that he had no mens rea in the instant case as he was told by Amit Gupta to pick up the vehicle from the parking of the city centre mall. It is further stated by the accused that he met Amit Gupta in the morning of the day of incident. However, the chain of circumstances on the morning of the incident as established by the prosecution is that the accused was picked up by PW-1 Nishant in the morning from his home, as accused had hurt his finger and was not in a state to drive the motorcycle. It is thereafter, that they both went to hospital and thereupon to the place of incident. In his cross- examination PW-1 clearly stated that the accused did not meet anyone on the way to the mall while he was with him. Even the suggestion of the defence that they met Amit Gupta on the way was denied by the witness and thus the witness had clearly stood by the prosecution story. Furthermore, PW-3 Amit Gupta had also clearly stated that he had not met the accused in a long time and that the car was transferred by Amit Gupta to the complainant as neither his money was being returned by the accused nor did he pick up his calls. Furthermore, all the witnesses have stood the test of cross-examination and have withstood the same and have supported the prosecution case throughout.
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.20 of 23 Lastly, wrongful gain and wrongful loss stands proved considering the fact that the vehicle which was in possession of the complainant which he had purchased from Amit Gupta after paying certain amount was taken by the accused without the permission of the complainant and had caused wrongful loss to him.
15. Ld. counsel for the accused has on several occasions put to the PW-3 as well as PW-2 that whether the transfer of the ptoperty by PW-3 to PW-2 can be made legally in light of provision of law or not. This court is in agreement with the submissions of Ld. defence counsel that PW-3 could not have transferred the ownership of the vehicle to PW-2. However, at the same time it also needs to be appreciated that the offence of theft is not against the ownership of an individual rather only against the possession.
16. The next question which arises for consideration whether the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt, and the accused is entitled for the benefit of doubt and deserves acquittal. The concept of Beyond Reasonable Doubt was explained in the judgment of Sucha Singh and Another Vs. State of Punjab, AIR 2003 by the Hon'ble Supreme Court as under: "21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 :
FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.21 of 23 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."
17. Thus, in light of the above discussion the prosecution has brought sufficient evidence on record to prove that the accused committed theft of the Baleno car bearing number DL-14CD-1738 which was in the possession of the complainant on the date of the incident. The testimony of complainant as well as the eye-witness i.e., Nishant is clinching and able to bring the guilt of the accused home. Accordingly, the prosecution has proved the allegations against the accused for the commission of offence under Section 379 IPC.
18. In view of the aforementioned proposition of law as enunciated in the aforementioned judgment, the question which arises for the consideration FIR NO. 044509 /2019 State Vs. Anil Kumar Mehta Page no.22 of 23 here is that whether the defence has been able to create any reasonable doubt in the case. As held by the Hon'ble Apex Court that the reasonable doubt must emanate from the evidence in the case. The proof beyond reasonable is a guideline and not the fetish. Having considered all the facts and circumstances of the case especially in view of the evidence adduced in this behalf in the light of the well settled propositions of law, I am of the opinion that the prosecution case against the accused has been established beyond reasonable doubt qua the provision of Section 379 IPC.
19. Since the accused has been found guilty for the offence under Section 379 IPC, he cannot be convicted for offence under Section 411 IPC as either he is the thief or the receiver of the stolen property.
20. Hence, in view of the above said discussions and the evidence as well as the material available on the record I am of the considered view that the prosecution has successfully proved the case against the accused beyond reasonable doubt. Thus, the accused Anil Kumar Mehta is hereby convicted for commission of offences under Section 379 IPC. However, the accused is acquitted for the offence under Section 411 IPC.
21. Case property, if any be returned to the rightful claimant after due compliance.
Announced in the open Court Digitally signed
SANKALP by SANKALP
KAPOOR
today i.e. on 30.06.2023. KAPOOR Date: 2023.06.30
17:29:52 +0530
(Sankalp Kapoor)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
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