Delhi District Court
State vs . Rafiq Ahmed & Ors. on 23 November, 2009
State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal
U/s: 406/420 IPC
IN THE COURT OF SH. SIDHARTH MATHUR, METROPOLITAN
MAGISTRATE, CENTRAL - 02, TIS HAZARI COURTS, DELHI
State Vs. Rafiq Ahmed & Ors.
FIR No : 129/91
U/S : 406/420 IPC
P.S : Chandni Mahal
JUDGMENT
1. S. No. of the Case : 86/02/06 2. Date of Commission of Offence : January 1991 3. Date of institution of the case : 05/08/1991 4. Name of the complainant : Ms. Mussarat Begum
5. Name of accused, parentage & address : (1) Rafiq Ahmd @ Pappy S/o Abdul Salam R/o A11, DDA Flats, Turkman Gate, Delhi.
(2) Abdul Salaam S/o Mohd.
Akbar R/o A11, DDA Flats, Turkman Gate, Delhi.
(3) Mohd. Aslam S/o Abdul Salaam R/o A11, DDA Flats, Turkman Gate, Delhi.
6. Offence complained or proved : U/s 406/420 IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted.
9. Date of Final Order : 23.11.2009.
23.11.2009 Page 1 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC JUDGMENT FACTS
1. The present criminal case is based upon the complaint made by the complainant Ms. Mussarrat Begum W/o Mohd. Younis on 08/06/1991, against accused Abdul Salaam S/o Mohd. Akbar, Mohd. Aslam S/o Abdul Salaam, Rafiq Ahmed @ Pappy S/o Abdul Salaam and Sardar Ahmed @ Sardari S/o Abdul Salaam.
The accused Abdul Salaam @ Thakur was known to the complainant prior to the filing of the complaint against the accused persons. Around 5 months prior to the filing of the complaint, accused Abdul Salaam visited the complainant and proposed to her in the presence of her brother Islammuddin, mother Bilkis Begum & brother Mohammaduddin that as his brother Mohammadin was educated and jobless, hence, so he could arrange a job with a monthly salary of Rs. 14,000/ for him at Malaysia since accused Abdul Salaam alongwith his sons/accused Mohd. Aslam, Rafiq Ahmed & Sardar Ahmed was running a travel agency at "M.A. Enterprises", K3, DDA Flats, Turkman Gate, Delhi. Accused Mohd. Aslam and Sardar Ahmed also assured the complainant that through their travel agency, they could easily arrange a job for the complainant's brother at Malaysia since previously as well 23.11.2009 Page 2 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC they have been sending people abroad through their travel agency. The accused persons demanded Rs. 40,000/ from the complainant in lieu of sending her brother Mohammaduddin to Malaysia and for arranging a job for him there.
2. After the expiry of 1 to 1½ months from the date of the above conversation, complainant alongwith her mother Bilkis Begum and brother Mohammaduddin went to the office of the accused persons at K3, DDA Flats, Turkman Gate, Delhi and gave Rs. 20,000/ in cash to accused Abdul Salaam. In lieu of the aforesaid payment, accused Rafiq Ahmed gave a receipt to the complainant.
After the said payment, the complainant alongwith her mother Bilkis Begum again went to the above office of the accused persons and gave a further sum of Rs. 20,000/ to accused Rafiq Ahmed in the presence of the remaining accused, whereby accused Rafiq Ahmed again issued a receipt for the said payment in favour of the complainant.
3. When despite the expiry of times as promised earlier, the brother of the complainant Mohammaduddin was not send abroad by the accused persons despite the fact that the complainant had paid the entire demanded amount of Rs. 40,000/ to the accused, the complainant once again approached the accused persons to inquire as to why they have not fulfilled their promise, 23.11.2009 Page 3 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC but, the accused persons kept on lingering the matter on one pretext or the other and then the complainant demanded her money back from the accused persons, to which the accused persons told her that she would be returned her paid amount of Rs. 40,000/ once she returns to the accused the receipts earlier given by the accused. Thereafter, when complainant went to the accused persons with the receipt, accused Rafiq Ahmed snatched the receipt from the complainant and threatened her with dire consequences, whereupon the complainant immediately approached the police and lodged the present FIR under Section 406/420 IPC.
INVESTIGATION & PRETRIAL PROCEDURE
4. During the course of the investigation, the accused persons were arrested and their office at K3, DDA Flats, Turkman Gate, Delhi was searched by the police. On completion of the usual investigation, the charge sheet against the accused persons was filed on 05/08/1991.
On the basis of the challan, the cognizance of the offences under Section 406/420 IPC was taken against the accused persons and thus the accused persons were directed to be summoned to face trial. Provisions of Section 207 Cr. P.C. were complied on 19/08/1991. 23.11.2009 Page 4 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC CHARGE
5. After hearing the prosecution as well as the defence, the accused persons were charged in the following manner:
a) The accused persons were charged for committing the offence under Section 406 IPC for not fulfilling their promise to send the brother of the complainant to Malaysia and to get him a job at Malaysia, despite, being paid with a sum of Rs.
40,000/ by the complainant, which amount was also not returned by the accused; and
b) The accused persons were also charged for committing the offence under Section 420 IPC for exercising deceit over the complainant by fraudulently and dishonestly inducing her to deliver a sum of Rs. 40,000/ to them in lieu of sending her brother to Malaysia and for arranging a job for him at Malaysia, which promise was neither fulfilled by the accused, nor the accused returned the aforesaid amount.
6. Though the charge was framed against all the 4 accused persons, namely, Abdul Salaam S/o Mohd. Akbar, Mohd. Aslam S/o Abdul Salaam, Rafiq Ahmed @ Pappy S/o Abdul Salaam and Sardar Ahmed @ Sardari S/o Abdul Salaam, but, during the course of the trial accused Sardar Ahmed @ Sardari expired whereby the present proceedings against accused Sardar 23.11.2009 Page 5 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC Ahmed @ Sardari were abated via order dated 28/02/1996.
Thus is clear that the trial was only concluded in respect of accused Abdul Salaam S/o Mohd. Akbar, Mohd. Aslam S/o Abdul Salaam and Rafiq Ahmed @ Pappy S/o Abdul Salaam, whose fate would be decided by means of the present judgment.
TRIAL
7. In order to prove the aforesaid charges against the accused persons, the prosecution had examined as many as 8 witnesses. After the prosecution's evidence was completed on 02/02/2001, the separate statements of the accused persons, namely accused Rafiq Ahmed @ Pappy, Abdul Salaam & Mohd. Aslam were recorded on 11/04/2001 under Section 313 Cr. P.C., wherein, the accused persons took the defence of "false implication" by the complainant by asserting that the complainant being the wife of the brotherinlaw of accused Rafiq Ahmed, earlier used to purchase jewellery on credit basis from the shop of accused Mohd. Aslam situated at 27/70, Trilok Puri, under the name of "Shabnam Art", which jewellery she used to sell further in Pakistan, but, when the accused persons asked the complainant to pay the price of the jewellery taken by her on credit basis she lodged the present false complaint with the police.
The accused persons did not lead any evidence in their defence 23.11.2009 Page 6 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC despite seeking an opportunity to do so in their respective statements recorded under Section 313 Cr. P.C. after they submitted before the Court on 13/09/2001 that they want to close their defence evidence.
PROSECUTION'S EVIDENCE PW1: S.I. Bishan Swaroop, Belt No. D3910, Delhi Traffic Police
8. PW1 appeared and deposed that on 08/06/1991, when he was posted as a Duty Officer from 8.00 a.m. to 8.00 p.m. at P.S. Chandni Mahal, then at around 6.15 p.m., a tehrir was brought by Ct. Om Prakash sent by I.O. S.I. Aas Mohd., whereupon PW1 lodged the present FIR under his own handwriting bearing his signatures at Point A. The carbon copy of the present FIR was proved by PW1 as Ex. PW1/A (OSR).
PW2: H.C. Asghar Ali, Belt No. 913/PCR
9. PW2 deposed that on 09/06/1991, he was posted at P.P. Turkman Gate, when the complainant came to the said police post and handed over a receipt dated 07/03/1991 written on the letter head of "M.A. Enterprises", K3, DDA Flats, Turkman Gate, Delhi, wherein the receiving of Rs. 20,000/ was 23.11.2009 Page 7 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC noted in Hindi under the signatures of accused Rafiq Ahmed @ Pappy.
PW2 further deposed that thereafter the I.O. apprehended accused Rafiq Ahmed and searched his office at K3, DDA Flats, Turkman Gate, Delhi. PW2 also deposed that the search of the above office by the I.O. resulted in no recovery being effected from there and neither any stamp, nor any letter head, nor any passport of the complainant was found from there. PW2 was cross examined on behalf of the defence.
PW3: Ms. Mussarrat Begum 10 PW3 appeared and deposed that in the month of January 1991, all the accused visited her house in the presence of her mother Bilkis Begum and brothers Islamuddin & Mohammaduddin and proposed that they can send her brother Mohammaduddin to Malaysia and can also arrange a job for him at Malaysia at a monthly salary of Rs. 14,000/ , since it was revealed to the accused persons that her brother Mohammaduddin was educated yet jobless. PW3 also deposed that the accused persons also revealed that since they are running a travel agency hence in those recent times, they had already sent numerous other persons abroad. PW3 testified that the accused persons demanded a sum of Rs. 40,000/ to fulfill their promise to send her brother as named above to Malaysia and for arranging a job for him there. 23.11.2009 Page 8 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC
11. PW3 also deposed that thereafter she went to the office of the accused persons at K3, DDA Flats, Turkman Gate, Delhi alongwith her mother and gave a sum of Rs. 20,000/ to accused Abdul Salaam in the presence of the remaining accused, whereafter, accused Rafiq Ahmed gave a stamped receipt to her duly signed by him.
PW3 further testified that after around 10 days of the making of the above payment, she again went to the office of the accused persons alongwith her mother and handed over to the accused a further sum of Rs. 20,000/ alongwith the passport of her brother Mohammaduddin whereafter again a stamped receipt was issued by accused Rafiq Ahmed in her favour under his signatures.
12. PW3 deposed that when the accused persons did not sent her brother to abroad within the time frame promised by them despite the making of the full payment by the complainant, the complainant demanded her money back, whereupon she was told to come back again with the receipt and then only her amount would be returned. PW3 deposed that when she went to the office of the accused persons with the receipt dated 22/02/1991, the said receipt was forcibly snatched by the accused persons, who also, threatened her with dire consequences, whereupon she lodged the complaint Ex. PW3/A with the police.
23.11.2009 Page 9 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC
13. As per PW3, after the lodging of the complaint Ex. PW3/A, though the police had raided the office of the accused persons at K3, DDA Flats, Turkman Gate, Delhi in her presence and had also searched it, whereby, certain documents, diaries, passports etc. were recovered by the police, but, the passport of her brother Mohammaduddin could not be recovered. The personal search memos of the accused persons were proved by PW3 as Ex. PW3/B to Ex. PW3/D, which bears the signatures of the complainant as well.
14. PW3 also had deposed that she had handed over the original remaining receipt dated 07/03/1991 to the police during investigation and proved the photocopy of the same Ex. PW3/A (the photocopy of the said receipt was allowed as a secondary evidence by the Court, since, the original of the same was lost in the manner mentioned in the letter dated 23/01/2001 issued from the office of DCP Central).
15. PW3 also deposed that for arranging a sum of Rs. 40,000/ to be given to the accused, she had fetched Rs. 20,000/ from her uncle Ayub, Rs. 15,000/ from Islamuddin & remaining Rs. 5,000/ from her mother. PW3 was vigorously cross examined on behalf of the defence. 23.11.2009 Page 10 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC PW4: Mohammaduddin S/o Shahbuddin
16. PW4 was the brother of PW3/complainant who deposed that in 1991, after he had completed his education, he was jobless and then one day all the accused visited his house and told his sister PW3 in presence of PW4, his mother Bilkis Begum & another brother Islamuddin that they could sent him to abroad to Malaysia when they could also fetch him a job. PW4 also deposed that the accused persons sought an amount of Rs. 40,000/ for sending him abroad and for getting him a job there.
17. PW4 then deposed that on 22/02/1991, his mother and PW3 went to the office of the accused persons and handed them over a sum of Rs. 20,000/ in lieu of which a receipt was issued by accused Rafiq Ahmed. PW4 also deposed that on 07/03/1991, his mother and PW3 again went to the office of the accused persons and gave them a further sum of Rs. 20,000/ alongwith his passport, whereby again a receipt was issued.
PW4 also deposed that when the accused persons did not sent him abroad as promised then PW3 demanded her money back from the accused, whereupon the accused persons threatened PW3. PW4 was also cross examined on behalf of the defence.
23.11.2009 Page 11 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC PW5: Dr. N.K. Aggarwal, Senior Scientific Officer, CFSL
18. PW5 appeared and deposed that he has been examining the questioned documents since last 25 years whereby he has attended more than 300 Courts for giving his evidence in cases, wherein he had given his opinion. PW5 also deposed that apart from other education qualifications, he has done a Post Graduate Certificate Course in Forensic Science from Delhi University.
PW5 deposed that the questioned signatures Mark Q1 and admitted signatures Mark S1 to S227 were examined by him at the Forensic Laboratory by using appropriate scientific aids & methods, whereupon he gave his report Ex. PW5/A, wherein it has been opined by him that the questioned as well as the admitted signatures were signed by one & the same person i.e. Rafiq Ahmed.
PW6: Raj Singh, Assistant Passport Officer
19. PW6 appeared and deposed that passport bearing No. Y023443 was issued in favour of Mohammaduddin S/o Shahbuddin R/o 2207, Bulbuli Khana, Bazar Sitaram, Delhi on 24/02/1986. PW6 also deposed that the record pertaining to the said passport has been destroyed after completion of 10 years of its retention via relevant entry No. 43 recorded in register Ex. PW6/A 23.11.2009 Page 12 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC (OSR). PW6 was not cross examined on behalf of the defence.
PW7: Smt. Bilkis Begum W/o Shahbuddin
20. PW7 deposed that PW4 Mohammaduddin is her son and that around 10 years back from the date of her examination in chief (which is dated 02/02/2001), PW4 after completing his education was lying jobless at his house. PW7 deposed that during that period, the accused persons came to their house and proposed in presence of PW3, PW4 and her remaining son Islamuddin that since they were running a travel agency, thus they could send PW4 abroad and could also arrange a job for him at a monthly salary of Rs. 14,000/ in Malaysia.
21. PW7 further deposed that thereafter, she and PW3 went to the office of the accused persons at K3, DDA Flats, Turkman Gate, Delhi and gave a sum of Rs. 20,000/ to accused Abdul Salaam, whereupon accused Rafiq Ahmed issued a receipt in lieu thereof under his signatures.
PW7 also deposed that in March 1991, she alongwith PW3 again went to the above office of the accused persons and gave a further sum of Rs. 20,000/ alongwith the passport of PW4 to the accused persons, whereupon a receipt in lieu thereof was once again issued by accused Rafiq Ahmed. 23.11.2009 Page 13 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC
22. PW7 further had deposed that after receipt of the above amounts, the accused persons did not send PW4 to abroad as per their promise but rather agreed to return the above amounts to PW3 after the receipts are given back to them. As per PW7, then PW3 went to the accused persons with the first receipt, which receipt was instead forcibly snatched by the accused persons, who also threatened PW3 with dire consequences. PW7 was cross examined on behalf of the defence.
PW8: Inspector Aas Mohd., Special Branch
23. PW8 deposed that on 08/06/1991, he was the Incharge of P.P. Turkman Gate and on that day in the evening, PW3 came to her and lodged the complaint Ex. PW3/A, whereupon PW8 made an endorsement Ex. PW 8/A and send the ruqqa to the police station through Ct. Om Prakash, whereupon the present FIR Ex. PW1/A was registered.
PW8 also deposed that thereafter he conducted a raid at the office of the accused at K3, DDA Flats, Turkman Gate, Delhi, where though he found the accused persons, but, the accused persons tried to create a scene, whereupon they were booked under Section 107/151 Cr. P.C. PW8 further deposed that then he had searched the above office of 23.11.2009 Page 14 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC the accused, but, nothing was recovered from there.
PW8 also deposed that on 09/06/1991, PW3 came again to him and gave a receipt Ex. PW3/E to him, which he accordingly seized via seizure memo Ex. PW8/B. PW8 also deposed that in order to find letter heads similar to the one whereupon receipt Ex. PW3/E was written, he once again conducted a search of the above office of the accused, but could not find anything.
24. PW8 also deposed that he had taken the specimen signatures of accused Rafiq Ahmed and then had deposited the said specimen signatures alongwith questioned signatures appearing on Ex. PW3/A with the CFSL via application Ex. PW8/D through receipt Ex. PW8/C. PW8 also deposed that he had verified the particulars of the passport of PW4 from the Regional Passport Office, which revealed that the said passport was issued in 1986 and was once again renewed in 1991 for a period of 5 years. The said witness was cross examined on behalf of the defence.
25. As already stated, no defence evidence was adduced by the accused persons after the completion of their statements recorded under Section 313 Cr. P.C. and so I shall now be discussing the ingredients sought to be proved by the prosecution for bringing home the charges alleged against the accused. 23.11.2009 Page 15 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC INGREDIENTS REQUIRED TO BE PROVED BY THE PROSECUTION
26. In order to bring home the offence of Section 406 IPC alleged against the accused persons, the prosecution was required to prove the following:
a) That the complainant/PW3 had delivered Rs. 40,000/ in total to the accused persons via two separate installments of Rs. 20,000/ on each dated 22/02/1991 and 07/03/1991 respectively; and
b) That the accused persons had misappropriated the said amount by failing to return the same to the complainant even after they had failed to fulfill their promise of sending PW4 to Malaysia.
27. In order to prove the offence under Section 420 IPC, the prosecution was required to prove the following against the accused:
a) That the accused persons had exercised deceit over PW3 by falsely promising to her to send her brother PW4 to Malaysia and to arrange a job for him there;
b) That the accused persons by the above false representation had fraudulently and dishonestly induced PW3 to deliver Rs. 40,000/ to them; and 23.11.2009 Page 16 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91 P.S.: Chandni Mahal U/s: 406/420 IPC c) That due to the above fraudulent & dishonest
inducement of the accused, PW3 delivered Rs. 40,000/ to the accused persons which she otherwise would not have given to the accused except for the above inducement.
28. Before proceeding further so as to see as to whether the prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt or not, one cannot loose sight of the relevant legal proposition as applicable on to the facts of this case. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof for the version of the prosecution in a criminal trial throughout the trial lies on the prosecution which never shifts on to the accused. Also it is a settled that accused is entitled to the benefit of every reasonable doubt (s) appearing in the prosecution story and such material reasonable doubt (s) entitles the accused to acquittal.
29. Now, in the facts of the present case as seen in the light of the 23.11.2009 Page 17 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC aforesaid legal propositions, it is clear that apart from proving that accused had promised to send PW4 to Malaysia and to get a job for him there, which promised they never fulfilled, another two most important facets were required to be proved by the prosecution in this case. Firstly, the prosecution was required to prove that the accused persons were running a travel agency at K3, DDA Flats, Turkman Gate, Delhi and secondly, the prosecution was once required to prove that a sum of Rs. 20,000/ was delivered by PW3 to the accused persons on 22/02/1991 & that a further sum of Rs. 20,000/ was again delivered by PW3 to the accused persons on 07/03/1991 in lieu of which two separate receipts under the signatures of accused Rafiq Ahmed were issued on 22/02/1991 & 07/03/1991 respectively.
APPRECIATION OF EVIDENCE
30. Now, I shall proceed on to appreciate the evidence having come on record, so as to find out as to whether the prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt or not.
The prosecution in the facts of the present case was first required to prove that the accused persons were carrying a travel agency business through their office of "M.A. Enterprises" at K3, DDA Flats, Turkman Gate, Delhi, which if the prosecution succeeds in proving would make the statements of the 23.11.2009 Page 18 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC PW3, PW4 & PW7 believable to some extent that the accused persons being travel agents had promised PW3 to send PW4 to Malaysia.
Now, if the evidence adduced on record is perused, it would reveal that the prosecution has altogether failed in proving that the accused persons were indulging themselves ever in any travel agency business from their office situated at K3, DDA Flats, Turkman Gate, Delhi or elsewhere.
It has come on record from the testimonies of PW2, PW3 and PW8 that after the receipt of the complaint dated 08/06/1991 Ex. PW3/A, the office of the accused persons situated at K3, DDA Flats, Turkman Gate, Delhi was raided by the police party but was also vigorously searched in presence of the complainant on 09/06/1991. However, if the testimony of PW2 H.C. Asghar Ali & PW7 Inspector Aas Mohd. is perused, it would reveal that the aforesaid police raid and the consequent police search of K3, DDA Flats, Turkman Gate, Delhi resulted in no recoveries of any nature being effected from the said premises. The I.O. PW7 has been very categorical in his deposition that no recoveries could be made from the aforesaid premises. PW7 has also deposed that the police party could not recover any letter heads/letter pads similar to the one whereupon the receipt Ex. PW3/E was written from the said premises. PW2 has also deposed that neither any stamps, nor any passport, nor any letter pad could be recovered during the police search of the aforesaid premises.
Thus from the aforesaid extracts of the testimonies of PW2 & PW8, 23.11.2009 Page 19 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC it becomes clear that police could not recover anything from the premises bearing No. K3, DDA Flats, Turkman Gate, Delhi so as to even prima facie suggest that any travel agency business was being conducted by the accused persons from the said premises in the manner alleged by the complainant.
Surprisingly, PW3 has stated in her testimony, in strict contrast to what has been deposed by PW2 & PW8 in the above quoted manner, that during the course of the police search, the police in her presence had recovered numerous passports, documents, diaries, etc. from the office of the accused though the passport of PW4 could not be recovered.
Well there is nothing on record corroborating the aforesaid part of the testimony of PW3, wherein she has stated that certain recoveries were made from the aforesaid premises, rather, the record transpires the exaggerations and improvements implicit in this part of the testimony of PW3 which are being exposed by the consistent and independent testimonies of PW2 & PW8 wherein both of them had maintained their stance that neither any recoveries, nor anything else were was effected or seized from the office of the accused persons at K3, DDA Flats, Turkman Gate, Delhi.
Thus, I am inclined to observe that from the aforesaid discussion, it is clear that the prosecution has been unable to bring home their allegation that the accused persons were doing any travel agency business at K3, DDA Flats, Turkman Gate, Delhi, particularly, when the receipt Ex. PW3/E allegedly issued by the accused in lieu of the receiving of Rs. 20,000/ from PW3 also 23.11.2009 Page 20 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC nowhere mentions that the said amount was taken by the accused for sending PW4 to Malaysia. Also the letter head whereupon receipt Ex. PW3/E is written nowhere reveals that the accused persons were conducting any business of travel agency under the name of "M.A. Enterprises" at the given address, rather, the said letter head reveals that the accused persons were doing the work of repairer of scientific & surgical instruments, hospital furniture, etc. from the said premises, which fortifies my observation that accused are not shown to have been running travel agency business from K3, DDA Flats, Turkman Gate, Delhi or from elsewhere.
31. Next, the prosecution in order to substantiate its charges against the accused persons under Section 406/420 IPC was further required to show that the complainant/PW3 had given Rs. 40,000/ to the accused persons on two different occasions i.e. 22/02/1991 & 07/03/1991 in two equal installments of Rs. 20,000/ each.
In order to prove the aforesaid allegation, the prosecution has relied upon the testimonies of PW3/the complainant, PW4/brother of the complainant and PW7/mother of the complainant.
If the testimonies of PW3, PW4 & PW7 are perused, it will be revealed that they all have deposed in one voice that the accused persons projected to PW3 in the presence of PW4, PW7 & another brother Islamuddin that they would send PW4 to Malaysia and would also arrange a 23.11.2009 Page 21 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC job for him there, if PW3 would give them a sum of Rs. 40,000/. PW3, PW4 & PW7 have also deposed in single voice that thereafter on two different occasions PW3 in presence of PW7 had given Rs. 20,000/ each on every occasion to the accused persons in their office at K3, DDA Flats, Turkman Gate, Delhi, whereby in lieu thereof accused Rafiq Ahmed had issued two separate receipts dated 22/02/1991 & 07/03/1991 acknowledging the receiving of the above payments. The said 3 witnesses have also similarly deposed that the accused persons neither send PW4 to Malaysia, nor returned the money to PW3, rather, they snatched the receipt dated 22/02/1991 from the complainant.
PW3 has also deposed that in order to arrange Rs. 40,000/ for giving the same to the accused persons, she had taken Rs. 20,000/ from her uncle Ayub, Rs. 15,000/ from her brother Islamuddin & Rs. 5,000/ from her mother Bilkis Begum.
32. Now, if the aforesaid extracts of the testimonies of PW3, PW4 & PW7 are analyzed in the light of the documentary evidence having come on record, one would find that though the testimonial statements of PW3, PW4 & PW7 are very akin to each other, but the same neither gets enough support from the record, nor inspires confidence, rather, their testimonies seems to be too synchronized & replicated to be believed.
The receipt Ex. PW3/E dated 07/03/1991, whereupon 23.11.2009 Page 22 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC prosecution's case hinges, though, is proved by PW5 to have been bearing the signatures of accused Rafiq Ahmed, but, mere appending of signatures thereupon is insufficient to presume any malafide intention under Section 406/420 IPC qua any of the accused persons.
Reason being, firstly, that the said receipt Ex. PW3/E nowhere mentions as to for what purpose Rs. 20,000/ were received by accused Rafiq Ahmed on 07/03/1991 and secondly, that the said receipt also nowhere mentions as to from whom and for whom the said amount was received. The circumstance of said receipt Ex. PW3/E not divulging that the purpose of taking of the money was to send PW4 to Malaysia has become fatal for the prosecution in the light of another fact clearly peeping from the record whereby it is clear that the said receipt Ex. PW3/E, which was written on the letter head of M.A. Enterprises, showed the accused merely as the repairers of scientific & surgical instruments, hospital furniture etc., instead of accused being shown as travel agents in the manner contended by PW3, particularly, when nothing was recovered by the police from the office of the accused so as to even prima facie suggest that the accused persons were into travel agency business.
As already discussed, the said receipt is insufficient to infer that the accused persons were working as travel agents. Now the aforesaid discussion so read in the light of the observation that the accused persons are not shown to be travel agents, then from the mere mentioning of the fact of receiving of 23.11.2009 Page 23 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC Rs. 20,000/ in the receipt Ex. PW3/E issued under the signatures of accused Rafiq Ahmed, it would be hazardeous to presume that the said amount was taken by the accused persons for sending PW4 to Malaysia in absence of any such promise/purpose being mentioned therein.
33. PW4 Mohammaduddin had admitted in his cross examination that he has seen both the receipts dated 22/02/1991 & 07/03/1991, who has also deposed in his cross examination that on the receipt dated 22/02/1991, it was written that the accused persons had received Rs. 20,000/ for sending PW4 to Malaysia and for fetching him a job with a salary of Rs. 14,000/ per month in Malaysia. PW4 also had deposed that on the second receipt dated 07/03/1991 only the factum of receiving of Rs. 20,000/ was mentioned and it was not mentioned thereupon that the said amount was being received to send PW4 to Malaysia or for arranging a job for him there.
The testimonies of PW3, PW4 & PW7 reveals that the receipt dated 22/02/1991 was allegedly snatched by the accused persons from PW3 on 08/06/1991, which makes it clear that the said receipt never made it on record. If the said receipt would have been brought on record on recovery by the police, then the contents of the said receipt dated 22/02/1991 in the manner narrated by PW4 would have become a important piece of evidence against the accused persons, however, neither the said receipt was ever recovered, nor the same ever made it on record.
23.11.2009 Page 24 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC In view of the testimony of PW4 that it was recorded in the receipt dated 22/02/1991 that the accused persons were receiving Rs. 20,000/ for sending PW4 to abroad & for fetching him a job at Malaysia, certain questions arises in my mind first that when the accused persons could have mentioned their motive for receiving the money on 22/02/1991 was to send PW4 to Malaysia and fetch him a job there, then, why the same was not mentioned on the surviving receipt Ex. PW3/E dated 07/03/1991? Further, as to why only the said receipt dated 22/02/1991 containing the admission of the accused that they were receiving the said amount for sending PW4 abroad and for fetching him a job there was taken by PW3 to the accused persons on 08/06/1991, though, as per her own version she was asked by the accused persons to bring along both the receipts? Further, as to why PW3 did not take the remaining receipt Ex. PW3/E dated 07/03/1991 with her on 08/06/1991 to the office of the accused? Further, as to why PW3 did not insist upon the accused to mention about their promise to send PW4 abroad for a job in the receipt Ex. PW3/E in the same manner as it was mentioned in the receipt dated 22/02/1991? As to why PW3 lost the control of the receipt dated 21/02/1991 only, but, was able to retain the control of the immaterial receipt Ex. PW3/E? Lastly, as to why PW4 had deposed nothing about snatching of receipt dated 22/02/1991 from PW3 in his evidence? These all questions have gone unanswered whereby not only the manner actions and behaviour of PW3 has come under doubt, but, her entire story line has also come under serious 23.11.2009 Page 25 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC doubt.
34. There is one more circumstance which makes it highly doubtful that the receipt Ex. PW3/E was issued by accused Rafiq Ahmed after receiving Rs. 20,000/ in lieu of sending PW4 to Malaysia and for arranging a job for him there. It has come in the testimonies of PW3, PW4 & PW7 that when the accused persons did not send PW4 abroad within the promised time, PW3 demanded her money back whereupon accused persons asked her to return the previous receipts issued in her favour by them whereafter they would return her amount of Rs. 40,000/ back. It also appears from the testimonies of PW3, PW4 & PW7 that on the date of the complaint i.e. 08/06/1991, when the accused persons snatched the receipt from her, she was only carrying one receipt dated 22/02/1991. No reason has come forward from the mouth of PW3 as to why she only preferred to return only the receipt dated 22/02/1991 and to retain receipt dated 07/03/1991, despite the fact that the accused persons had demanded all their receipts from her before returning her money. It also does not appeals to me that the accused persons, if it is believed for the sake of arguments that they had taken Rs. 40,000/ from PW3 to send PW4 abroad, would take a chance to annoy or threaten the complainant/PW3 before they acquire the possession of remaining receipt Ex. PW3/E from PW3 as well. Even, if I were to believe PW3, that the accused persons had snatched the receipt dated 22/02/1991, then the same would have done to destroy the 23.11.2009 Page 26 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC evidence in possession of PW3 against the accused, then also thinking as a reasonable person, the accused persons instead of threatening the complainant after snatching the single receipt dated 22/02/1991 would have waited to first take back the remaining receipt dated 07/03/1991 as well before their alleged refusal to return the money of PW3. In these circumstances, if the accused were having malafide intention right from the inception to cheat PW3 in the manner alleged by the prosecution, then instead of locking horns with PW3 immediately after snatching only one receipt dated 22/02/1991, they would have waited a bit longer so as to enable them to take control of remaining piece of evidence in the nature of receipt Ex. PW3/E from the possession of PW3. If in reality, the said receipts were issued in lieu of Rs. 40,000/ taken by the accused persons for sending PW4 to Malaysia, then in my view the accused persons would have first tried to procure back both the receipts from PW3 instead of annoying the PW3 immediately after procuring the single receipt dated 22/02/1991. The accused could not have been foolish enough to leave remaining piece of evidence in the nature of receipt Ex. PW3/E in possession of PW3 once they took possession of one receipt dated 22/02/1991. If the accused persons were that much clever as asserted by PW3, then they would not have foolish enough to leave the remaining piece of evidence in the nature of receipt dated 07/03/1991 in the possession of PW3 so as to give her an occasion to nail them. This circumstance of snatching only one receipt dated 22/02/1991, leaving the remaining receipt dated 07/03/1991 Ex. PW3/E in 23.11.2009 Page 27 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC possession of PW3 and the conduct of PW3, whereby she took alongwith her only one receipt dated 22/02/1991 instead of being called upon by the accused to give all the receipts back to them creates an unexplained doubt over the story of PW3. Why did PW3 preferred to take with her only the most important receipt dated 22/02/1991, despite accused asking her to bring all the receipts, which receipt dated 22/02/1991 as per PW4 contained the admission of the accused persons that they had received Rs. 20,000/ on 22/02/1991 in lieu of sending PW4 abroad and for fetching a job for him there? This question has gone unexplained on behalf of the prosecution and creates a cloud of doubt over the story being propounded by PW3, PW4 & PW7 against the accused persons.
35. It has also come on record from the testimonies of PW4 & PW7 that the accused persons have also filed a case against PW3. Well, if the testimony of PW3 is read in verbatim then it would reveal that neither in her complaint Ex. PW3/A nor in her entire testimony, she had spoken even a single word about the filing of the said case by the accused persons against her. This nondisclosure by PW3 has somewhat effected her credibility.
36. It has been revealed from the record that the testimony of PW4 was recorded on 01/02/2001 on which date his examination in chief as well as cross 23.11.2009 Page 28 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC examination was recorded. It has also come on record from the testimonies of PW3, PW4 & PW7 that when the receipt dated 07/03/1991 was issued, PW3 in presence of PW7 had handed over Rs. 20,000/ and passport of PW4 to the accused persons. It is also clear from the testimonies of PW2, PW3, PW4 & PW8 that the passport of PW4 was never recovered. It has also not revealed by PW4 in his evidence recorded on 01/02/2001 that due to the nonrecovery of his passport lying with accused, he ever had applied for a new or a replacement passport, whereby, now the Court is to infer that no renewed/replaced passport, except for the passport going unrecovered in this case, was ever possessed by PW4 once the same was allegedly given to the accused on 07/03/1991. If that being so, then in absence of any such passport, PW4 could never have travelled abroad after 07/03/1991. However, surprisingly PW4 in his testimony stated that he had travelled to Pakistan 89 years back from the date when his testimony was recorded in the Court. As already observed, the evidence of PW4 was recorded in the Court on 01/02/2001 and believing what PW4 has stated regarding his travel to Pakistan, then it would surface that PW4 would have travelled to Pakistan somewhere in 1992 or 1993. Now, if the passport of PW4 was never recovered after being taken by accused on 07/03/1991 and that he never ever got/applied a renewed or replaced passport after his original one was taken by the accused on 07/03/1991, then the prosecution was required to prove as to 23.11.2009 Page 29 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC how PW4 travelled to Pakistan in 1992 or 1993, when his only available passport was not with him. The admission of PW4 regarding his travel to Pakistan in 1991993, which would not have been possible without a valid passport and the factum of the nonrecovery of the said passport of PW4 once the same was being taken by the accused on 07/03/1991 creates a serious doubt on the story line of prosecution, particularly when PW4 has spoken nothing about the fact that despite his original passport going unrecovered, he had travelled to Pakistan on a renewed/replaced passport.
37. PW3 in her testimony once has admitted that the complaint given by her to the police on 08/06/1991 was Ex. PW3/A, then any material contradictions appearing between the statement Ex. PW3/A and the testimony of PW3 recorded in the Court can certainly be relied by the Court.
Now, in the complaint Ex. PW3/A, PW3 has categorically stated that on the first occasion (which is shown to be 22/02/1991), PW3 had went to the office of the accused persons with her mother and PW4, where she then handed over Rs. 20,000/ to accused Abdul Salaam.
In the evidence recorded before this Court, PW3 had deposed that on the first occasion dated 22/02/1991, she went to the office of the accused persons only with her mother. Similar deposition is being given by PW7 regarding her first visit dated 22/02/1991 to the office of the accused persons. 23.11.2009 Page 30 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC PW4 also has deposed that on 22/02/1991 only PW3 & PW7 had gone to the office of the accused persons.
Thus, the aforementioned testimonies of PW3, PW4 & PW7 recorded in the Court reveals that as far as the visit dated 22/02/1991 is concerned, the office of the accused persons was only visited by PW3 & PW7, which extracts of these testimonies clearly belies the statement of PW3 recorded in the complaint Ex. PW3/A given to the police on 08/06/1991, wherein she had stated that on 22/02/1991, she had visited the office of the accused persons with PW4 & PW7.
From the aforementioned contradictions, it becomes clear that either at the time of giving the complaint Ex. PW3/A to the police, PW3 was exaggerating the facts or that at the said time, she was telling a lie. Either way, the veracity of PW3 has taken up downwards dip whereby her reliability has also been effected particularly when it has already been come to the notice of the Court that the PW3 had also concealed the factum of a case being filed against her by the accused.
Further, as already discussed the testimonies of PW3, PW4 & PW 7 are so similar and synchronized on factual aspects to be believed.
38. Last but not the least, PW3 has admitted in her evidence that for arranging Rs. 40,000/ to be given to the accused persons, she had fetched Rs. 20,000/ from her uncle Ayub, Rs. 15,000/ from her brother Islamuddin & Rs. 23.11.2009 Page 31 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC 5,000/ from her mother. The mother of PW3, who had appeared as PW7 had spoken nothing about giving of Rs. 5,000/ to PW3 in the manner narrated by PW3. The prosecution has not produced PW's uncle Ayub & brother Islamuddin so as to prove the statement of PW3 that she had taken Rs. 20,000/ from her uncle Ayub and Rs. 15,000/ from her brother Islamuddin. so as to arrange the payment of Rs. 40,000/ to be given to the accused persons. PW3 has spoken nothing about the time period or dates when the said respective amounts were taken by her from uncle Ayub, Islamuddin & her mother. Thus, it cannot be said that the prosecution has been able to prove that PW3 ever possessed Rs. 40,000/ to be given to accused, which also weakens the case of prosecution.
My aforementioned discussion clearly shows that neither the prosecution has been able to prove that PW3 had in her possession Rs. 40,000/ so as to be given to the accused persons respectively on 22/02/1991 & 07/03/1991, nor the prosecution has proved the delivery of Rs. 40,000/ to the accused persons in the manner asserted by PW3. Once the prosecution has not been able to prove the delivery of money to the accused persons by PW3, it can be said that the prosecution has failed in its most important task of the proving of the delivery of money to the accused, as otherwise was required by the prosecution to sustain the charges of Section 406 /420 IPC. The reasons assigned hereinabove clearly shows that the case of the prosecution suffers from numerous omissions, unexplained doubts and fatal lacunas, whereby 23.11.2009 Page 32 of 33 of Pages State Vs. Rafiq Ahmed & Ors.
FIR No. 129/91
P.S.: Chandni Mahal U/s: 406/420 IPC accused persons have surely become entitled to the benefit of doubt.
CONCLUSION The aforementioned contradictions, omissions and lacunas in the case of prosecution clearly shows that the prosecution has been unable to prove its case against the accused persons beyond reasonable doubt, whereby the accused persons are accorded the benefit of doubt, whereby the accused persons are acquitted of all the charges made against them in this case. The B/B & S/B of the accused are discharged. The original documents of the surety, if any on record, be released to the surety after cancellation of the endorsements thereupon against receipt. File be consigned to record room after due compliance.
Announced in the open court on on 23/11/2009 (Sidharth Mathur) M.M (Central 02) DELHI 23.11.2009 Page 33 of 33 of Pages