Delhi District Court
State vs Mohd. Arif on 23 February, 2013
IN THE COURT OF SH. LOKESH KUMAR SHARMA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI.
Case No. 40/2/03
Unique Case I.D. No.02403R0357322003
STATE VERSUS MOHD. ARIF
FIR No. 01/02
U/s 419/420 IPC
P. S. New Friends Colony
Date of filing of the charge sheet : 25.01.2003
Date of reserving order : 18.02.2013
Date of pronouncement : 23.02.2013.
JUDGMENT
(a) Serial Number of the case : 40/02/03
(b) The date of the commission of : 16.12.2001 the offence
(c) The name of the complainant : Mr. Steven J. Henderson, Facility Manager, Tele Atlas India Pvt. Ltd, Tele Atlas Tower, Sector1, Noida, UP
(d) The name of the accused : Mohd. Arif S/o Late Mohd. person, his parentage and Kamil R/o 175A, Arjun residential address Nagar near Safdarjung Enclave, New Delhi.
(e) The offence complained of : Section 419/420 IPC
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(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of the order : 23.02.2013
JUDGMENT
PROSECUTION CASE:
1. The case of the prosecution, in brief, is that a complaint dated 18.12.2001 was made to SHO PS New Friends Colony by one Mr. Steven J. Henderson, Facility Manager, Tele Atlas India Pvt. Ltd, Tele Atlas Tower, Sector1, Noida, UP wherein he had stated that in the evening of 16.12.2001 at about 19.15 hours, one person purportedly representing himself to be one Mr. Gupta had approached the official residence of Mr. Ronal Schutte who was an American citizen and working with this company as a production manager. The said Mr. Gupta was stated to have told the guard at the gate that his father was the President of the New Friends Colony community Club and he had come to assist Mr. Schutte with regard to his obtaining membership to the said club. His father was stated to be a resident of 56, Friends Colony (East), New Delhi. The guard had accordingly informed the arrival of the said Gupta to Mr. Schutte who thereafter met him for about 1520 minutes inside the residence. During the conversation, the said Mr. Gupta had assured Mr. Schutee to secure a membership in the New Friends Colony Community Club for him for which he was just required to pay annual fee and was also supposed to fill some registration FIR No. 01/02 State Vs. Mohd. Arif 2 of 9 forms. When Mr. Schutte had agreed to this proposal, he had also handed over Rs. 5,000/ to Mr. Gupta towards two years subscription of the membership, Mr. Gupta had then requested him to lend him his mobile phone to make a call to his father in order to arrange the necessary documents for his membership and he had also made a call from the said mobile phone to some person purporting to be his father and informed Mr. Schutte that he was required to go to his father's residence at 56, Friends Colony East to pick up the documents and return. On this pretext, he had retained mobile phone having mobile number 9810021529 belonging to Mr. Schutte and took one guard alongwith him on the pretext of going to his father's house at 56, Friends Colony East, New Delhi. However, later on he told the guard that his father was not present at his house but was at his uncle's house who lived in another lane. It was further informed by him to the guard that since no car was parked there as well in the other lane, his father and uncle might have gone to the Club for getting the documents and on this pretext he had sent the guard back to the house of Mr. Schutte and himself had run away alongwith the said mobile phone and cash of Rs. 5,000/. When Mr. Schutte had tried to contact him on the mobile number which he had borrowed, the same was found switched off. On this complaint, the present FIR was registered. During investigation, accused Mohd. Arif was arrested and after completion of investigation, chargesheet U/s 419/420 IPC was FIR No. 01/02 State Vs. Mohd. Arif 3 of 9 filed against the accused.
2. The Court had taken cognizance of the said offences and issued process to the accused. The accused was supplied copy of charge sheet and accompanying documents as provided u/s 207 Cr.P.C. On hearing arguments and appraisal of material on record, the Court framed Charges U/s 419/420 IPC against the accused on 03.03.2004 to which he had pleaded not guilty and claimed trial and contested the case on merits.
3. The prosecution in order to substantiate its case had examined six witnesses in all out of which the primemost witness is the complainant himself who had been examined as PW 1 who in his deposition before the court had reiterated the version of his complaint on solemn affirmation and had proved his complaint on record as Ex. PW 1/A.
4. During his cross examination by Ld. Defence counsel, he had categorically stated that he had no personal knowledge regarding the facts and all the said facts as mentioned by him in his complaint were told to him by Mr. Schutte himself and it was on his behalf that the complaint was lodged. He had further stated that since he had never seen Mr. Gupta personally, hence, he was not in a position to identify him as well.
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5. PW 2 was HC Satinder Kumar who was stated to have joined the investigation of the case on 30.04.2002 with the IO SI Himmat Ram when the present accused was called by IO at PS where mobile phone was produced by the accused which was seized by the police vide memo Ex. PW 2/A and the SIM Card and report about the mobile phone were also seized by the IO vide memos Ex. PW 2/B and Ex. PW 2/C respectively. He had identified the mobile phone as Ex. P1 and Sim Card as Ex. P2.
6. During his cross examination by Ld. Defence counsel, initially he had stated that he could not remember as to whether his statement was recorded by the IO at any point of time or not but later on he had admitted it to be correct that his statement was neither available in the police file nor in the judicial file. It was further admitted by him that identification of a mobile handset merely by looking at the same was impossible and same could have been done by verifying its IMEI Number alone. The witness could not tell about the Sim number recovered from the accused.
7. PW 3 Inspector Tripti Joshi was Duty Officer. She had recorded the case FIR on receipt of rukka sent by SI Himmat Ram through Ct. Netra Pal. She had proved copy of case FIR Ex.PW 3/A and her endorsement as Ex. PW3/B on rukka.
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8. PW 4 Sh. R.K. Singh was the Nodal Officer, Bharti Airtel Ltd who had placed on record the details pertaining to mobile number 9810088461 from the period 01.01.2002 to 04.04.2002 as Ex. PW 4/A (Colly). He had also placed on record details of mobile number 9810021529 from period 01.12.2001 to 26.02.2002 as Ex. PW 4/B. He had also identified the signatures of one Sh. P.K. Goha Rai on Ex. PW 4/C at point A. As per this witness, mobile handset used by both the Sim cards had same IMEI number.
9. PW 5 SI Himmat Ram was the investigating officer of the case. He had deposed that on 04.01.2002 he was posted at PS New Friends Colony when SHO PS New Friends Colony had marked a complaint to DO and after registration of FIR, the copy of FIR alongwith the complaint was handed over to him for investigation. Thereafter, he had reached at the spot i.e Kothi No. 38, New Friends Colony (East) where he had met one guard namely Maheshwar and had recorded his statement. Record of club had also been verified by him but he could not found any person in the name of Mr. Gupta. Thereafter, he had moved an application to Cellular Bharti Company to verify the IMEI number and had obtained the call details which were Ex. PW 4/A and Ex. PW 4/B. Thereafter, accused was called to PS who was using the SIM of IMEI number of mobile phone in question. Later on he was arrested FIR No. 01/02 State Vs. Mohd. Arif 6 of 9 vide arrested memo Ex. PW 5/A on 30.10.2002. The accused had refused to participate in TIP proceedings. The Sim card was also taken into possession vide seizure memo Ex. PW 5/B.
10. During his cross examination by Ld. Defence counsel, he had stated that he did not remember as to whether he had ever taken the bill of mobile phone in question from the victim or not. It was also admitted by him that he had never received any IMEI number from the complainant as well as victim Ronald E. Schutte nor he had collected any telephone bill.
11. PW 6 ASI Deen Dayal had deposed that on 30.10.2002 he was posted at PS New Friends Colony and IO SI Himmat Singh had called the accused in the PS and had arrested him vide arrest memo Ex. PW 5/A which bears his signatures at point B.
12. Accused in his statement recorded U/s 294 Cr.P.C had admitted the application for conducting TIP as Ex. A1, TIP proceedings as Ex. A2 and application by IO to provide copy of TIP proceedings as Ex. A3.
13. Thereafter, prosecution evidence was closed. Statement of accused was recorded U/s 313 Cr.P.C and the entire incriminating evidence appearing on record against him was put to the accused in vernacular in reply to which he had stated that he was the owner of FIR No. 01/02 State Vs. Mohd. Arif 7 of 9 the Sim card and it was falsely seized by the police and he has been falsely implicated in this case.
14.I have heard Ld. APP for State as well as Ld. Defence counsel Sh. R.P. Nafaria, Advocate and have carefully gone through the documents placed on record.
15. The original victim had never come forward to depose or identify the accused as the same person who had cheated him by impersonating himself as Mr. Gupta. As far as the entire complaint of the complainant is concerned, the same is inadmissible in evidence being based on hearsay. Though it might be correct that accused might have been using the phone instrument with the same IMEI number which was allegedly earlier used by the actual victim, however this fact ipsofacto does not give rise to the presumption or point out towards the accused as the person who had actually cheated the victim because the possibility of him being an innocent purchaser can not also be ruled out. The complainant could not identify the accused as the person who had cheated the victim by impersonating himself as Mr. Gupta, hence, no criminal liability can be attached to his acts.
16. Hence, in my opinion, the prosecution had miserably failed to prove the guilt of accused beyond any reasonable doubt and he is FIR No. 01/02 State Vs. Mohd. Arif 8 of 9 accordingly acquitted from the offences U/s 419/420 IPC. His bail Bond and surety bond stand cancelled and discharged. Endorsement, if any, be cancelled. File be consigned to record room Announced in the open Court on 23.02.2013 (LOKESH KUMAR SHARMA) ACMM - 01/SOUTH EAST SAKET COURTS, NEW DELHI.
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