Delhi District Court
State vs Nazokat Otaboeva on 19 September, 2024
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Nazokat Otaboeva and anr.
FIR No : 40/2019
U/s : 417/419/468/471 IPC and 14(a) of the
Foreigners Act
P.S. : Domestic Airport
1. CNR No. of the Case : DLSW020261042021
2. Date of commission of offence : 02.04.2019
3. Date of institution of the case : 25.06.2021
4. Name of the complainant : SI/Exe. R. D. Upadhyay
5. Name of accused, parentage & : 1. Nazokat Otaboeva
address D/o Otaboeva
R/o Xorazm Viloyati,
QO SHKO PIR Tumani,
IIB, Uzbekistan
2. Marhabo Abdullaeva
D/o Abdullaeva
R/o W-23, Altermis,
Khorezm, Uzbekistan
6. Offence complained of : U/S 417/419/468/471 IPC
and 14(a) of the
Foreigners Act
7. Plea of the accused : Pleaded not guilty
: Both accused convicted
8. Final order u/S 14(a) of the
Foreigners Act
9. Date of final order : 19.09.2024
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State
Mr. Zubair Hashmi, Ld. Counsel for accused
persons.
Digitally signed
by Abhinav
FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 1 of 29 Abhinav Ahlawat
Date:
Ahlawat 2024.09.19
15:52:47
+0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 02.04.2019 at about 05:40 PM, at T-1, IGI Airport, New Delhi, accused Nazokat Otaboeva cheated the complainant by representing herself to be Kumush Khan by using the forged driving licence in the name of Kumush Khan and thereby dishonestly induced the complainant for gaining access to T-1, IGI Airport, Delhi for boarding the Spice Jet Flight no.SG-125 by obtaining boarding pass and thereby committed the offences punishable under Sections 417/419/468/471 IPC. Further, both accused Nazokat Otaboeva and Marhabo Abdullaeva were found within the territory of India for a period beyond the validity of their visa granted to them and thereby committed they committed the offence punishable under Section 14(a) of the Foreigners Act, 1946 for which FIR no.40/19 was registered at the police station Domestic Airport, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter called as, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this court took the cognizance against the accused persons and summons were issued to both the accused. On their appearance, a copy of the chargesheet was supplied to the accused persons in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 2 of 29 Date:
Ahlawat 2024.09.19 15:52:53 +0530 Sections 417/419/468/471 IPC and Section 14(a) of the Foreigners Act was framed against accused Nazokat Otaboeva and charge under Section 14(a) of the Foreigners Act was framed against accused Marhabo Abdullaeva on 18.04.2022. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW-1 SI/Exe. R. D. Upadhyay PW-2 L/SI Anshul PW-3 ASI Ramanand PW-4 WASI Ratan Prabha PW-5 Raj Kumar PW-6 Inspector Mahesh PW-7 Inspector Vijay Singh PW-8 WCt. Manisha DOCUMENTARY EVIDENCE Ex.PW1/A Complaint Ex.P1 Fake driving licence Ex.PW3/A Endorsement on DD no.8A dated 02.04.2019 Ex.PW3/B FIR no.40/19 dated 02.04.2019 Ex.PW3/C Certificate u/S 65B of Indian Evidence Act Ex.PW4/A Arrest memo Ex.PW4/B Personal search memo Ex.PW4/C Seizure memo qua passport of accused Marhabo Abdullaeva Ex.PW4/D Confessional statement Ex.PW4/E DD no.40 dated 02.04.2019 Ex.P2 Yellow envelop Ex.PW5/A Authority letter Ex.PW5/B Reply letter bearing no.4/CFB/2020(1)-925 dated 20.02.2020 Ex.PW7/A Tehrir Ex.PW7/B Disclosure statement Digitally signed FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 3 of 29 by Abhinav Abhinav Ahlawat Ahlawat Date:
2024.09.19 15:52:58 +0530 Ex.PW7/C Arrest memo Ex.PW7/D Personal search memo Ex.PW7/E Seizure memo Ex.PW7/E1 Driving licence of accused Nazokat in the name of Kumush Khan Ex.PW7/F Boarding pass of accused Nazokat Ex.PW7/G Boarding pass of Amrit Kapoor Ex.PW7/H Boarding pass of Nitin Aggarwal Ex.P3 Passport of accused Nazokat Ex. PW9/A Authority letter alongwith arrival / departure details of both the accused persons from Intelligence Bureau (MHA) ADMITTED DOCUMENTS Ex.A1 Reply to letter bearing no.668 dated 03.04.2019 to the request of verifying the driving licence bearing no.HR5520150985613
4. To prove its case, prosecution examined the following witnesses, the same are as follows:
PW1 SI/Exe. R. D. Upadhyay deposed that in the month of August, 2019 they received a call from an unknown number at CISF Control Room that one lady pax namely Kumush Khan is travelling with a fake identity with Spice Jet Airline from Delhi to Hyderabad. Thereafter, they checked with the Airlines Staff whether any such lady had checked in or not and it was found that the said lady pax had checked in and they found her at the retail area sitting with two other male pax. When they asked to show her identity, the said lady pax showed one driving licence which was in the same name. Thereafter, they checked online whether any such driving licence was issued from the concerned Haryana Authority and found that no such driving licence was issued from the said Authority. On further inquiry from the accused, she stated that she was a citizen of Uzbekistan.Digitally signed FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 4 of 29
by Abhinav Abhinav Ahlawat Date:
Ahlawat 2024.09.19 15:53:03 +0530 Thereafter, they took the lady pax alongwith two other male pax and handed over them to the police officials at PS Domestic Airport alongwith the fake driving licence recovered from the accused and he lodged a complaint regarding the said incident Ex.PW1/A. The witness correctly identified accused Nazokat Otaboeva present in the Court and the fake driving licence as Ex.P1. As PW1 did not support the case of prosecution on certain facts, the Ld, APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that the date of incident was 02.04.2019 and as the pax was a lady, she remained in the custody of LSI Anshul (CISF). The witness was not cross-examined by accused persons despite grant of opportunity.
5. PW2 L/SI Anshul deposed that in the year 2019, she was informed by her senior officials that one lady pax had been detained and she had to take the said lady pax to the police station. Thereafter, she took the said lady to the police station and handed over the said lady pax to the police officials. The witness correctly identified accused Nazokat Otaboeva present in the Court. As PW2 did not support the case of prosecution on certain facts, the Ld, APP was granted permission to put her questions in the nature of cross-examination, wherein she stated that the date of incident was 02.04.2019 and on that day she was on duty at Departure and she alongwith her staff members detained one lady. She did not remember whether she inquired the said lady upon which she disclosed that she belonged to Uzbekistan. The witness was not cross-examined by accused persons despite grant of opportunity.Digitally signed by Abhinav
Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 5 of 29 Date:
Ahlawat 2024.09.19 15:53:07 +0530
6. PW3 ASI Ramanand deposed regarding registration of FIR on the basis of tehrir received from SI Vijay Singh and he endorsed it vide DD no.8A dated 02.04.2019 Ex.PW3/A. Thereafter, he reduced the same vide FIR no.40/19 dated 02.04.2019 Ex.PW3/B alongwith certificate under Section 65B of Indian Evidence Act regarding the said FIR Ex.PW3/C. The witness was not cross-
examined by accused persons despite grant of opportunity.
7. PW4 WASI Ratan Prabha deposed that on 03.06.2019, she alongwith IO SI Vijay Singh went to Neb Sarai Delhi where they reached at Freedom Fighter Colony. Thereafter, they went to house no.A67, Hilltop Apartment, Lower Ground Floor, Delhi where they met one lady namely Marhaba who was interrogated by the IO in her presence. Thereafter, she was arrested by the IO vide arrest memo Ex.PW4/A. The accused remained in her custody and she personally searched the accused Marhaba after taking her aside vide personal search memo Ex.PW4/B. Thereafter, the IO seized the passport of accused Marhaba vide seizure memo Ex.PW4/C, recorded her confessional statement Ex.PW4/D. Thereafter, they took accused Marhaba to the police station. The witness correctly identified accused Marhaba present in the court and the passport of accused Marhaba seized by the IO in her presence Ex.P2. She also brought the official record of DD no.40 dated 02.04.2019 Ex.PW4/E. In the cross-examination, he stated that they had intimated the DO at the time of their departure and arrival on the date of arrest of accused. However, he did not remember the exact DD number vide which their departure and arrival entry were done by the DO.
8. PW5 Raj Kumar proved his authority letter bearing no.4/CFB/2020(1)-6064 dated 24.06.2022 Ex.PW5/A and he Digitally signed by Abhinav FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 6 of 29 Abhinav Ahlawat Date:
Ahlawat 2024.09.19 15:53:13 +0530 identified the signatures of Assistant Director Sh. Sanjeev Kumar Gupta on reply letter bearing no.4/CFB/2020(1)-925 dated 20.02.2020 Ex.PW5/B (colly). The witness was not cross-
examined by accused persons despite grant of opportunity.
9. PW6 Inspector Mahesh deposed regarding preparation of charge-
sheet and presentation of the same before the Court. The witness was not cross-examined by accused persons despite grant of opportunity.
10. PW7 HC Inspector Vijay Singh on 02.04.2019, the complainant SI / Exe. R. D. Upadhyay, a CISF Officer produced a complaint and three boarding passes of flight bearing no.SG-125, Spice Jet Airlines from Delhi to Hyderabad alongwith one lady passenger, who was travelling with fake ID/DL alongwith two other male passengers. The complaint was registered vide DD no.40B and the said complaint was marked to him for further action and the passenger was also handed over to him. Upon inquiry, the lady passenger disclosed her name as Nazokat and her nationality as Uzbekistan national. After preliminary inquiry, he prepared tehrir Ex.PW7/A upon the complaint and he got the present FIR registered. After the registration of the FIR, the investigation was handed over to him. After receiving the original complaint, tehrir and copy of FIR, he carried out further investigation. During investigation, he came to the know the fact that abovesaid two male passengers Nitin Aggarwal and Amrit Kapoor only met the accused at the Airport itself. No foul play was found of both the aforesaid passengers in the present matter. As it was night time, the lady passenger/accused Nazokat was taken to Nari Niketan, Hari Nagar after her medical examination. On 03.04.2019, he went to Nari Niketan alongwith lady Ct. Manisha and brought the Digitally signed FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 7 of 29 by Abhinav Abhinav Ahlawat Ahlawat Date:
2024.09.19 15:53:21 +0530 accused Nazokat to the police station and interrogated her in the presence of lady Ct. Manisha. During interrogation, her disclosure statement was recorded vide Ex.PW7/B, she was arrested vide arrest memo Ex.PW7/C and she was personally searched by lady Ct. Manisha vide personal search memo Ex.PW7/D. In her disclosure statement the accused disclosed that her passport was lying with her sister Marhabo and that the forged driving licence by the name of Kumush Khan was also given to her by her sister Marhabo. Thereafter, the accused Nazokat took them to the residence of her sister Marhabo but after reaching her residence she changed her attitude and did not co-operate in the investigation, so neither the passport of the accused could be recovered nor her sister Marhabo could be traced. Thereafter, the accused Nazokat was produced before the Court and the Court remanded the accused to judicial custody. On 09.05.2019, the passport bearing no.7098288 was handed over to him by one Mohd. Sarfraz upon the direction of the Court which was seized vide seizure memo Ex.PW7/E. During investigation, he got verified the driving licence of accused Nazokat by the name of Kumush Khan bearing no.HR5520150985613 dated 27.11.2015 vide request letter Ex.PW7/E1. On 03.06.2019, co-accused Marhabo was arrested, personally searched by woman ASI Ratan Prabha and her passport was also recovered from her residence which was seized. The accused was interrogated and her disclosure statement was recorded. During investigation, the fact came to his notice that accused Marhabo came to India on 15.05.2007 and went back on 25.05.2007 as per her arrival and departure details. Thereafter, how accused Marhabo entered in India was not disclosed by her. Accused Nazokat came to India on 02.08.2016 Digitally signed FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 8 of 29 by Abhinav Abhinav Ahlawat Ahlawat Date:
2024.09.19 15:53:26 +0530 on tourist visa and did not go back to her country. He recorded statements of witnesses. Thereafter, he got transferred from the police station and he handed over the case file to MHC (R). The witness correctly identified both the accused persons present in the Court and the boarding pass of accused Nazokat in the name of Kumush Khan as Ex.PW7/F, the boarding passes of male passengers Amrit Kapoor and Nitin Aggarwal as Ex.PW7/G and Ex.PW7/H and passport of accused Marhabo. The passport of accused Nazokat as Ex.P3 and the driving licence bearing no.HR5520150985613 dated 27.11.2015 having the photograph of accused Nazokat and issued in the name of Kumush Khan.
11. PW8 WCt. Manisha deposed that on 02.04.2019, after registration of FIR, accused Nazokat was interrogated by the IO in her presence and her disclosure statement was recorded, she was then arrested and was personally searched. Upon the disclosure of accused Nazokat about fake driving licence, they went to the house of co-accused Marhabo but her driving licene could not be verified. In the cross-examination, she stated that she did not remember whether the driving licence had been recovered from accused Nazokat in her presence.
12. On account of admission of accused u/s 294 Cr.P.C, remaining witnesses in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined, hence, PE was closed on 14.02.2023.
13. Thereafter matter proceeded till final arguments, however, on 08.02.2024, Ld. Counsel for accused persons filed an application under Section 311 Cr.PC for recalling certain prosecution Digitally signed by Abhinav FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 9 of 29 Abhinav Ahlawat Date:
Ahlawat 2024.09.19 15:53:31 +0530 witnesses and the said application was allowed vide order dated
09.02.2024 and PW5 was recalled and matter was listed for PE. The recalled witness was examined as PW9 and PE was closed on 18.04.2024 and on the same date the statement of accused persons under Section 313 Cr. P. C. was recorded.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
14. Thereafter, before the start of defence evidence in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused persons was recorded on 20.03.2023 and 18.04.2024 (after PW9 was recalled u/s 311 crpc vide order 09.02.2024) without oath under section 281 r/w 313 CrPC, wherein they have stated that they are innocent and have falsely been implicated in the present case. Accused Marhabo further stated that she was already facing trial u/s 14(a) Foreigners Act which was pending in the Saket District Court and that her visa was extended during the trial multiple times by FRRO after paying requisite penalties They further stated that they did not want to lead defence evidence. Whereas, accused Nazokat stated that she was living in India since her arrival in the year 2016 with visa having six months validity. She further stated that she was provided with the driving license by one taxi driver at the Airport only.
Digitally signed by AbhinavFIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 10 of 29 Abhinav Ahlawat Date: Ahlawat 2024.09.19 15:53:35 +0530 FINAL ARGUMENTS
15. I have heard the Ld. APP for the State and Ld. Counsel for the accused persons at length. I have also given my thoughtful consideration to the material appearing on record.
16. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
17. Per contra, the Ld. counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused persons be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
18. The allegations levelled against the accused persons are segregated into three parts, firstly pertaining to offences related to section 417/419 IPC and second pertaining to offence related to section 468/471 IPC and thirdly pertaining to section 14(a) of The Foreigners Act.
Digitally signed by AbhinavAbhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 11 of 29 Date:
Ahlawat 2024.09.19 15:53:40 +0530
19. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the Court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
APPRECIATION OF EVIDENCE
20. The first set of allegations against the accused Nazokat revolves around commission of offence of cheating under Section 417/419 IPC, in which prosecution has to prove that the accused Nazokat Otabovoeva used the forged driving license in the name Kumush Khan and deceived the complainant to gain access to T-1, IGI Airport, Delhi and obtained the boarding pass of the Spice Jet flight. For proving Section 419 IPC, it must be established that the accused on the said date cheated the complainant by pretending herself to be some other person.
21. According to Section 415 of the IPC, cheating is defined as deceiving an individual fraudulently or dishonestly in order to persuade that person to deliver or consent to keep the property. That when a person fraudulently, dishonestly, or knowingly encourages another person to do or omit something that he would not have done if he hadn't been misled, and the act causes damage to that person's body, mind, reputation, or property, that individual is said to cheat. Literal meaning of the word cheating is that it is done in order to gain profit or an advantage from another person by using some deceitful means. The person who Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 12 of 29 Ahlawat Date:
2024.09.19 15:53:46 +0530 deceives another knows for the fact that it would place the other person in an unfair situation.
The section is divided into two distinct clauses. Under the first clause, the person deceived must have been fraudulently or dishonestly induced to deliver property. The second clause does not require the inducement to be fraudulent or dishonest. But it requires that by reason of the intentional inducement, damage or harm in body and mind, reputation or property was caused to the person deceived. Thus, cheating may be committed in either of the two ways. Cheating is punishable under section 417 IPC.
22. For the purpose of the proving the offence of 417 IPC, prosecution was mandated to prove that accused Nazokat Otabovoeva deceived the complainant PW1 SI /Exe R.D Upadhyay, CISF by producing a fake Driving license and represented herself as some other person by the name of Kumush Khan and thereby gained access to the T1 IGI Airport for boarding the Spice Jet Flight No. SG-125.
23. As per PW1, he received a call from the unknown number at CISF Control Room that one passenger by the name of Kumush Khan was travelling from Delhi to Hyderabad on Spice Jet Airline with a fake identity. Thereafter they checked with the airline and the accused was found to have been already checked in and she was found at the retail area of the terminal. When she was asked to produce the id card, accused Nazokat Otabovoeva produced a driving licence which was under the name of Kumush Khan bearing no. HR5520150985613 dated 27.11.2015 Ex.P1 to PW1.
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24. During the course of investigation, the driving licence of accused Nazokat Otabovoeva was got verified from the concerned authority by sending an application Ex.PW7/E1 for verifying the driving licence and the reply Ex.A1 was received from the RTA Gurgaon stating that there was no such Driving License in their record.
Interestingly, it needs to be highlighted here that there is no seizure memo on the record by which the above said driving license in the name of Kumush Khan was got seized. The only seizure memo on record is of both the passports of the accused persons which are Ex.PW7/E and Ex.PW4/C. As per PW1, he handed over the accused Nazokat with the fake driving license to the police official. The said police official is PW7 who is the IO who stated in his testimony that PW1 that is the complainant SI/Exe R.D. Upadhyay produced the lady passenger along with the fake Driving License. PW7 further stated in his testimony that during investigation, he got verified the driving license of the accused. However, interestingly, there is no mentioning of seizing the said driving license by the IO PW7. Only the personal search memo Ex.PW7/D is on record and apart from that, during the course of investigation, even the passport of accused Nazokat was also seized but there is no record regarding the seizure of the alleged fake driving license from the accused Nazokat.
25. Furthermore, the boarding pass which accused Nazokat got issued from the Airline is in the name of Kumush Khan was also seized which is Ex.PW7/F. It is clear that accused Nazokat got issued the boarding passes by the name of the Kumush Khan but there is no evidence on record to show that accused Nazokat used the alleged fake driving license for getting issued the boarding pass Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 14 of 29 Date:
Ahlawat 2024.09.19 15:53:56 +0530 in her favour. Also, it is a matter of fact that neither the Airline concerned is the complainant nor they moved any complaint against accused Nazokat to show that they were deceived in issuing the boarding pass in favour of the accused. It is not clear from the prosecution case as to how the tickets were purchased by the accused from the Airline concerned, whether it was by using her passport or some other Id and nothing was procured in the investigation to clear the said factum.
Further, it is not the case of the prosecution or the complainant that accused used the forged driving license in the name of Kumush Khan for gaining entry into the terminal building, as no such evidence is brought on record by the prosecution. The CISF official who was manning the gate from where accused Nazokat by showing her id card or the alleged driving license gained entry was neither examined nor cited as a witness. The act of accused Nazokat of entering the terminal building by the alleged use of forged driving license along with the ticket cannot be said to have been established by the mere possession of forged driving license without procuring the evidence of the official before whom the accused had flashed the ticket and driving license to secure entry inside the building. The failure of IO in identifying and examining the said official leads to the only reasonable conclusion that the accused managed to have a free ride into the terminal building on that day, oblivious of the agony that was destined for her in the form of criminal trial.
26. The best evidence, in the form of oral testimony of said official, to prove the offence of cheating has not been presented which adversely affects the credibility of prosecution case. Further, Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 15 of 29 Date:
Ahlawat 2024.09.19 15:54:02 +0530 there is no allegation on record about the accused having pretended herself to be some other person. It is the version of the PW1 that he received a call from unknown number at CISF control room that one lady pax namely Kumsuh Khan was travelling with fake identitiy with spice jet airline from Delhi to Hyderabad, therefore, it is clear that PW1 was not the person to whom the accused Nazokat showed her alleged fake driving license for either entering into the terminal building or for securing the boarding pass. The alleged driving license was never seized as neither complainant PW1 or IO PW7 has stated nothing regarding the seizure of the driving license from the accused. Further, PW8 WCt. Manisha who was along with the IO also stated in her cross examination that she did not remember whether the driving license had been recovered from the accused Nazokat in her presence. This is a glaring loophole in the prosecution case, which even casts doubt whether the alleged driving license was recovered from the accused or not. Furthermore, PW1 complainant has not been able to establish that the accused Nazokat fraudulently, dishonestly, or knowingly encouraged him to do or omit to do something which he would not have done if he hadn't been misled, and that the act of the accused caused damage to that complainant's body, mind, reputation, or property.
27. The term personation is defined in section 416 of the Indian Penal Code. The charging section is section 419 IPC. To bring home an offence under section 419, the elements of section 416 IPC are to be proved. The essential ingredients of section 416 IPC are;
(i) pretention by a person to be some other person, Digitally signed by Abhinav FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 16 of 29 Abhinav Ahlawat Date:
Ahlawat 2024.09.19 15:54:08 +0530
(ii) knowingly substituting one person for another,
(iii) representation that he may or any other person is a person other than he is, or other person really is.
28. This, apart to bring home a charge under section 419 IPC. The person said to be deceived must be shown to have been cheated by the personation. This brings into the field, the necessity of establishing the ingredients for cheating, namely, that there should be deception or intentionally inducing the victim to do or omit to do anything which he would not do or omit if he were not so deceived. Therefore, there must be cheating in addition to personation and the personation must be for the purpose of cheating.
It is a settled law that there must be cheating in addition to personation and the personation must be for the purpose of cheating. Thus, cheating is an essential ingredient of the offence. It is no doubt true that under the explanation to section 415 of the Indian Penal Code, a dishonest concealment of facts, is a deception within the meaning of the section. But deception by itself does not amount to cheating unless the person who deceived is induced to do any act of the act specified in the section which he would not have done if he were not so deceived.
29. In the instant case, there is no evidence on record to establish that deception or dishonest concealment of facts on the part of the accused Nazokat was qua the complainant and from the entire evidence on record there appears no element of cheating at all towards the complainant PW1. As discussed above, the offence of cheating under Section 417 and 419 IPC are clearly not made Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 17 of 29 Date:
Ahlawat 2024.09.19 15:54:12 +0530 out against accused Nazokat. Accordingly, accused Nazokat is acquitted of the offences punishable under section 417/419 IPC.
30. The second set of allegations against the accused person Nazokat Otabovoeva revolves around commission of offences under Section 468/471 IPC, in which prosecution has to prove that the accused Nazokat Otabovoeva committed the forgery of the driving license in the name of Kumush Khan, intending to use the same for the purpose of cheating and thereby accused used the forged driving license in the name of Kumush Khan as genuine knowing the same to be forged.
31. The offence of Section 468 IPC shall be attracted by proving that accused Nazokat forged the driving licence as used by her which was issued in the name of Kumush Khan for the purpose of cheating, whereas for section 471 IPC, it has to be shown that the accused had fraudulently or dishonestly used such forged driving licence as genuine knowing or having reason to believe that it was forged. Provisions for which accused is prosecuted are as reproduced as under:
468. Forgery for purpose of cheating. --Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged- 1[document or electronic record]. --Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].
32. The making of false documents by a person is defined u/s 464 IPC. As far Section 465 IPC is concerned, this provision lays Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 18 of 29 Ahlawat Date:
2024.09.19 15:54:17 +0530 down the punishment for offence of forgery. The offence of forgery has been defined u/s 463 IPC as making of any false documents or electronic record or part thereof with an intent to cause damage or injury to public or any person, or to support any claim or title or to cause any person to part with the property or to enter into any express or implied contract or with the in-tent to commit fraud or that fraud may be committed.
33. The basic elements of forgery are as follows:
(a) The making of a false document or part of it and;
(b) Such making should be with such intention as is specified in section, viz.,
(i) To cause damage or infringe to the public or any person.
(ii) To support any claim or title.
(iii) To cause any person to part with any property.
(iv) To cause any person to enter into expressed or implied contract or;
(v) To commit fraud or that fraud may be committed.
34. The prosecution is relying on the testimonies of PW1 SI R.D. Upadhayay who recovered the driving license as used by accused Nazokat for showing her Id which is Ex.P1. During the course of investigation, PW7 inspector Vijay Singh moved an application Ex. PW7/E1 to the regional transport office. RTA, Gurugram, Haryana for verifying the driving licence as used by accused Nazokat to which the reply to letter bearing no.668 dated 03.04.2019 to the request of verifying the driving licence bearing no.HR5520150985613 was received which is Ex.A1 as per which no record of above mentioned driving license was found in the said authority. Genuineness of the said report was admitted by both the accused persons.
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35. As per the prosecution, during investigation, the documents of accused were verified and accused was found using fake Driving License (DL) as the same was not found registered in the R.T.A Gurgaon.
As already discussed, there is no seizure memo of the said driving license as allegedly recovered from the accused Nazokat therefore, the entire allegation that accused showed and produced the driving license for the purpose of her Id becomes suspicious and doubtful. Either this is major oversight committed by the IO during the course of investigation or it may be that accused never had the driving license with her.
36. From the above discussion, it is evidently clear that the driving license in question was never issued in favour of the accused Nazokat from said licensing authority as there is no record of the license in the authority and thereby establishing the fact that the driving license was a fake or forged document . However, it does not exonerate the prosecution to prove that same was recovered from accused Nazokat or that accused forged the same. There is no admissible evidence on record to establish the manner in which the accused forged the DL. Even if one were to assume the possession of forged DL by accused Nazokat as true, it would fall short of entailing penal liability in respect of the offence of forgery for lack of compelling evidence on record to prove that the forged DL was prepared by the accused.
The investigation in this case appears to be fundamentally defective due to the failure to seize the crucial material that is the alleged driving license on which the entire case against the accused Nazokat is based. The non-seizure of such vital evidence Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 20 of 29 Ahlawat Date:
2024.09.19 15:54:26 +0530 undermines the integrity and credibility of the investigation. In criminal cases, the collection and preservation of material evidence are critical to establishing the truth and ensuring a fair trial. By neglecting to seize the key material, the investigating agency has not only compromised the chain of custody but also deprived the Court of the opportunity to objectively assess the veracity of the allegations against the accused. This lapse casts serious doubt on the thoroughness of the investigation and weakens the prosecution's case, as it leaves significant gaps in the evidentiary record that cannot be overlooked. Consequently, the failure to seize this material raises concerns about potential bias, oversight, or negligence in the investigative process.
37. Furthermore, to bring home an offence under section 471 of IPC the prosecution is to prove that the document concerned was forged and that accused used such document and that he knew or had reason to believe that the same was forged and he nevertheless used the same as genuine one fraudulently or dishonestly. The allegations against accused are that she had fraudulently or dishonestly used the forged driving license no. HR5520150985613 purportedly issued by licensing authority RTA Gurgaon, Haryana as genuine despite having the knowledge or reason to believe that it was a forged document and had produced the same to the investigating officer during the course of investigation of the present case. As the recovery of the Driving License in the name of Kumush khan is doubtful in view of absence of any seizure memo, therefore there is no evidence to show that accused Nazokat had used the same.
The allegation of the prosecution regarding intentionally creation of false document i.e Driving License by accused Nazokat is not Digitally signed by Abhinav FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 21 of 29 Abhinav Ahlawat Date:
Ahlawat 2024.09.19 15:54:31 +0530 proved beyond reasonable doubt. The recovery of the said Driving License as recovered from the accused is doubtful. Hence accused Nazokat is entitled to benefit of doubt and is acquitted for charge u/s 468/471 IPC.
38. The third set of allegations which revolves around both the accused namely Marhabo and Nazokat is regarding their over stay in India for a period exceeding the period for which visa was issued to them whereby they are charged for commission of offence under Section 14 (a) Foreigners Act, 1946. The provision of Section 14, Foreigners Act, 1946 is as under:
14. Penalty for contravention of provisions of the Act, etc.--Whoever--
(a) remains in any area in India for a period exceeding the period for which the visa was issued to him; tc" (a) remains in any area in India for a period exceeding the period for which the visa was issued to him;"
(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder; tc" (b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;"
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.
Explanation.--For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920).]
39. Apart from section 14 (a) foreigner Act, the following orders needs to mentioned, which are as follows.
Digitally signed by AbhinavAbhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 22 of 29 Date:
Ahlawat 2024.09.19 15:54:36 +0530 The Foreigners Order 1948 provides that " [(1) Every foreigner who enters India on the authority of a visa issued in pursuance of Indian Passport Act,1920(34 of 1920),shall obtain from the Registration Officer having jurisdiction "either at the place at which the said foreigner enters India or at the place at which he presents a registration report in accordance with rule 6 of the Registration of Foreigners Rules, 1939, a permit indicating the period during which is is authorised to remain in India and also indicating the place or places for stay in India, if any, specified in the visa. In granting such permit, the said Registration Officer may restrict the stay of foreigner to any of the place specified in the visa.] Every foreigner to whom the provisions of sub paragraph(1) do not apply shall obtain a permit indicating the period during which he is authorized to remain in India from the Registration Officer to whom he presents a registration report in accordance with rule 6 of the Registration of Foreigners Rules1939] [(3) Every foreigner to whom a permit is issued under sub- paragraph (1) or sub-paragraph(2) - (i) shall not, if the permit indicates the place unless the place or places for stay in India, visit any other place unless the permit is extended by the Central Government to such other place;
(I)shall, if the permit indicates the place or places for stay in India, report in person or in writing his arrival at, and departure from, any such place to the Registration Officer having jurisdiction at such place within twentyfour hours after his arrival or, as the case may be;[before his intended departure; and} (II)shall, unless the period indicated in the permit is extended by the Central government, depart from India before the expiry of the said period ;and at the time of the foreigner's departure from India the permit shall be surrendered by him to the Registration Officer having jurisdiction at the place from which he departs.] The term "Foreigner" is defined in section 2 sub clause (a) of The Foreigners Act, 1946 as per which "foreigner" means a person who is not a citizen of India .
40. Section 14 of The Foreigners Act, 1946 punishes firstly the contravention of any of the provisions of Foreigners Act. Secondly, contravention of any order made thereunder and thirdly contravention of any direction or provisions of that Act or Order. The foreigners Order 1948 having been issued under the provisions of Foreigners Act, and if any contravention is made, Digitally signed by Abhinav FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 23 of 29 Abhinav Ahlawat Date: Ahlawat 2024.09.19 15:54:40 +0530 Para-7 of that order provides it is punishable under section 14 of The Foreigners Act, 1946.
41. In the present case, the date of arrest of accused Nazokat Otaboeva is 03.04.2019 after being apprehended from the Domestic Airport and when accused Nazokat Otaboeva failed to show her real ID card she disclosed herself to be from Uzbekistan. When she was asked to produce her passport, she could not produce the same but later on told that the same was lying with her sister Marhabo Abdullaeva (other accused) and she took the investigating police officials to her residence but then also, her passport was not found there. Later on, 09.05.2019 passport bearing no. AA7098288 of accused Nazokat Otaboeva was handed over to the IO PW7 Inspector Vijay Singh which was seized vide seizure memo Ex.PW7/E. The passport of accused Nazokat Otaboeva which is Ex.P3 is valid till 27.09.2024 and the visa of Republic of India as issued on 27.07.2016 was valid till 26.01.2017. Accused Nazokat Otaboeva travelled and as per immigration stamp affixed in her passport, she arrived in India on 02.08.2016.
42. Similarly, accused Marhabo Abdullaeva was arrested on 03.06.2019 and her passport was seized vide seizure memo Ex.PW4/C. The passport of accused Marhabo Abdullaeva which is Ex.P2 was valid till 15.07.2024. Perusal of her passport reveals that it has two visas issued by the Republic of India and the details are that the first visa was issued on 11.05.2007 expiring on 11.08.2007 and the second visa issued on 08.04.2008 expiring on 08.07.2008. Here, it is relevant to highlight that the passport of the accused Marhabo also bears three FFRO Stamp in her passport mentioning three extensions i.e., permitted to stay in Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 24 of 29 Date:
Ahlawat 2024.09.19 15:54:45 +0530 India, firstly up to 09.03.2012, secondly up to 31.08.2012 and thirdly up to 21.01.2013, all having extension numbers and reason cited as Court case.
Now, before dealing with the visa periods, it is relevant to understand the role of the Foreigners Regional Registration Office (FRRO) which is a government agency in India. FRRO is responsible for registering and monitoring the stay of foreigners in the country. As per the norms of FRRO, there is no requirement of endorsement on passport. In case, there is any such requirement, the said foreigner would be intimated by the FRRO/FRO concerned to visit their office.
43. During the course of investigation, an application was sent by the IO to Intelligence Bureau, Ministry of Home Affairs, Government of India for verifying the arrival and departure details in respect of both the accused persons. PW5 Raj Kumar, ACIO-I, deposed in the reply as furnished by the Assistant Director which is Ex.PW5/B (colly) and as per the arrival/ departure record from 01.01.2007 till 14.02.2020, accused Nazokat Otaboeva arrived in India on 02.08.2016 and never departed whereas accused Marhabo Abdullaeva arrived in India on 15.05.2007 and departed on 25.05.2007.
Here, it is relevant to highlight that counsel for accused persons moved an application under section 311 Cr.PC for recalling PW5 stating that the said witnesses was not properly cross examined and the evidence of such witnesses were very vital for the defence of the accused persons. Considering the submissions of the defence counsel the said application under section 311 Cr.PC, which was moved at a belated stage of final Digitally signed by Abhinav Abhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 25 of 29 Date:
Ahlawat 2024.09.19 15:54:49 +0530 argument, was allowed by the Court vide order dated 09.02.2024 whereby PW5 Raj Kumar ACIO was recalled for examination. Sh. Awadhesh Kumar was examined as PW9 in place of PW5 as PW5 Raj Kumar was transferred in December 2022. PW9 tendered the arrival/ departure details in respect of both accused as per their passport details which is Ex.PW9/A (colly). Nothing substantial came from the cross examination of PW9.
44. Therefore, it is clear from the record furnished by Intelligence Bureau Ex.PW5/B (colly) and Ex.PW9/A (colly) that accused Nazokat Otaboeva upon arrival in India on 02.08.2016 never went back whereas the present case relates to date 02.04.2019.
Therefore, it is clear that accused Nazokat Otaboeva who was granted visa for a period of six months which expired on 26.01.2017 and that she never went back and is clearly staying beyond the period for which the visa was issued to her.
Similarly, accused Marhabo Abdullaeva although as per the reply tendered by Intelligence Bureau Ex.PW5/B states that she departed from India on 25.05.2007 which is also tallying with the stamp as affixed upon her first Indian Visa but interestingly the second India visa as found in her passport having validity of visa till 08.07.2008 also bears immigration stamp of 15.04.2008 but no such detail has been found in the reply as filed by the Intelligence Bureau Ex.PW5/B. Therefore, the burden of proof is upon the accused Marhabo Abdullaeva being a foreign national to show as to how she procured second visa of Republic of India and as to how she entered into the territory of India when the same record is not in the travel details of arrival and departure as furnished by the Intelligence Bureau, Ministry of Home Affairs. Although the passport of accused Marhabo bears some extension Digitally signed by Abhinav FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 26 of 29 Abhinav Ahlawat Date:
Ahlawat 2024.09.19 15:54:53 +0530 stamp of the FRRO but nothing has been stated by the accused Marhabo as to when and how she obtained the said stamps of the FRRO for extension of her visa. Even if the FRRO stamp are presumed to be correctly obtained by the accused Marhabo, the last extension obtained by her mentions the date till 21.01.2013 to which she was entitled to stay in India, accused Marhabo was apprehended in the present case on 03.06.2019 which is almost 3 years and 5 months later than her last extension of stay. No explanation was given by accused Marhabo regarding her stay beyond the extension period.
45. The only defence version which has come from both the accused persons was only when their statement under section 313 Cr.PC were recorded on 18.04.2024. accused Marhabo stated in her statement under section 311 Cr.PC that her visa was extended multiple times by FRRO after paying requisite penalties whereas accused Nazokat stated in her statement under section 311 crpc that she arrived in India in the year 2016 with visa validity of six months.
It is pertinent to mention here that statement of accused recorded us 313 CrPC are not substantive piece of evidence, as held by the the Hon'ble Supreme Court of India in Sumeti Vij vs Paramount Tec Feb Industries (CRA 292/2021) LL 2021 SC 149, " The statement of the accused recorded under 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstance appearing in the prosecution case of the accused Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration.
Digitally signed by AbhinavAbhinav Ahlawat FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 27 of 29 Date:
Ahlawat 2024.09.19 15:54:58 +0530
46. No defence evidence has been led by both the accused to explain the reasons for remaining in the territory of India beyond the period for which the visas were issued to them. Nothing was brought on record by both the accused persons who substantiate their version. As evident from the arrival/departure details report Ex.PW9/A (colly) produced by the Intelligence Bureau, Ministry of Home Affairs, Government of India, both the accused persons are found to be staying in the territory of India beyond their visa period. There is no challenge or contradiction to the record Ex.PW9/A, and no evidence has been presented by the accused persons to cast doubt on its accuracy or reliability. Thereby, it is clear that both the accused persons have acted in violation of condition of visa as issued to them for entry and stay in the territory of the Republic of India. Hence, on the basis of material available on record, both the accused persons are held guilty for offence under Section 14 of Foreigners Act 1946 and are convicted of the offence punishable under section 14(a) Foreigners Act, 1946.
CONCLUSION
47. The upshot of the above discussion, and the surrounding circumstances in which accused Nazokat Otaboeva and accused Marhabo Abdullaeva were implicated in the present case, however, prosecution has failed to prove its case u/S 417/419/468/471 IPC. Several reasonable doubts have emerged in the narrative put forth by prosecution as analyzed hereinabove. The basic ingredient of Section 417/419/468/471 IPC has not been proved and the inescapable conclusion is that the accused Nazokat Otaboeva is entitled to benefit of doubt. Further, Digitally signed by Abhinav FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 28 of 29 Abhinav Ahlawat Date:
Ahlawat 2024.09.19 15:55:04 +0530 prosecution has proved its case against accused persons u/S 14(a) Foreigners Act, 1946.
48. Accordingly, this Court hereby accords the benefit of doubt to the accused Nazokat Otaboeva for the offence punishable u/s 417/419/468/471 IPC and holds the accused not guilty of commission of the said offence. Accused Nazokat Otaboeva is thus, acquitted of the offence u/S 417/419/468/471 IPC.
49. However, prosecution has been able to establish beyond doubts all the ingredients of Section 14(a) Foreigners Act, 1946 IPC and accordingly, accused Nazokat Otaboeva and Marhabo Abdullaeva are hereby Convicted for the offence punishable under section Section 14(a) Foreigners Act.
Let the convict be heard separately on the quantum of sentence.
Copy of this judgment be given free of cost to the convicts. Announced in the open court Digitally signed by Abhinav Abhinav Ahlawat on 19.09.2024 in the presence Ahlawat Date:
2024.09.19 of the accused. 15:55:10 +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/19.09.2024 Note:- This judgment contains 29 pages and each page has been signed by me. Abhinav Digitally signed by Abhinav Ahlawat Ahlawat Date: 2024.09.19 15:55:16 +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/19.09.2024 FIR No.40/19, PS Domestic Airport State vs. Nazokat Otaboeva and anr. Page 29 of 29