Delhi District Court
Sh. Vivek Garg Advocate vs . Akhilesh Pati Tripathi & Ors. on 21 March, 2022
IN THE COURT OF SHRI RAVINDRA KUMAR PANDEY, ACMM-01, ROUSE
AVENUE DISTRICT COURTS, NEW DELHI
Complaint Case No. 04/2019
CNR No. DLCT120000212019
Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors.
21.03.2022
ID No. : 04/2019
CNR No. DLCT120000212019
Date of commission of offence : In between the year 2013 to 2015
Date of institution of the case : 17.08.2015
Name of the complainant : Mr. Vivek Garg Advocate & RTI Activist
R/o:- 18/1, GF, Shakti Nagar, Delhi-110007.
Name of accused person and address: Akhilesh Pati Tripathi, MLA, AC-18 S/o Sh
Abhay Nandan Tripathi, R/o:- N-25/A-277, T-
Huts, Lal Bagh, Azadpur, Delhi-110033.
Offence complained of : U/s 420 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 21.03.2022
JUDGMENT
1. The brief facts of the case are that as per complaint of complainant, the accused Akhilesh Pati Tripathi is a MLA from Model Town Constituency since the 08.12.2013. It is averred that as per the rules, the MLA is considered as Public Servant and he is entitled for medical reimbursement of medical expenses Digitally signed by Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:12:42 +0530 -2- from Government of NCT Delhi regarding any treatment obtained by him/her, him/her spouse and dependent family members of the MLA. It is averred that as per the rules, the MLA is only entitled for reimbursement of medical expenses from the Government of NCT Delhi regarding his/her treatment, his or her spouse treatment or medical treatment obtained by any dependent family members and not by independent family member. It is further averred that the dependent family member can only be entitled for reimbursement of medical expenses if his income from all sources is less than Rs. 3500/- per month and the same is mandate as mentioned in application form which the MLA used to fill for getting a medical facility card under DGEHS for MLAs from the Government of NCT Delhi. It is averred that the accused Akhilesh Pati Tripathi managed to obtained medical facility card vide its number 218647 from Government of NCT of Delhi under Delhi Government Employees Health Scheme in which he had unlawfully disclosed his parents i.e. Sh. Abhay Nandan Tripathi (Father) and Smt. Chandra Wati Devi (Mother) as his dependent to obtain wrongful gain and to cause wrongful loss to the Government of NCT Delhi. It is alleged that the father of the accused i.e. Sh. Abhay Nandan Tripathi was retired as a Principal from Government School of Uttar Pradesh and he was drawing handsome pension of more than Rs. 3500/- per month. It is further alleged in the complaint that as per the documents obtained by complainant under RTI, accused got reimbursed expenses of medical treatment from Government regarding his parents for sum of Rs. 2,01,600/- (of Smt. Chandra Wati mother of the accused regarding her treatment at Dr. B.L Kapoor Memorial Hospital Delhi), Rs. 1,75,730/-, Rs. 1,81,763/- and Rs. 2730/-. It is further alleged in the complaint that neither the father, nor the mother of the accused were entitled to be entered their names in the Medical Facility Card in dependents category of the accused Akhilesh Pati Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:12:53 +0530 -3- Tripathi. It is alleged that accused had committed the offence punishable U/s 420 IPC with the Government.
2. On the basis of pre-summoning evidence led by the complainant, accused was summoned for commission of offence punishable U/s 420 IPC vide order dated 12.10.2017.
3. In the pre charge evidence, complainant himself stepped into the witness box and examined himself as CW-1 ( as per Section 244 Cr.PC).
4. The CW-1/complainant deposed that he is an Advocate and RTI Activist fighting against the corruption at high places in larger public/national interest. He further deposed that accused Akhilesh Pati Tripathi is MLA from Model Town Constituency Delhi since the year 2013 and then in the year 2015 elections. CW-1 further deposed that accused is a public servant and being a MLA, he was/ is entitled for medical reimbursement for his own, spouse, children and other wholly dependents on him. CW-1 further deposed that as per law, a person can be treated as dependent on MLA where the consolidated family income of the dependents are upto Rs. 3500/- per month. CW-1 further deposed that he came to know few years back through RTI that MLA Akhilesh Pati Tripathi cheated the Government by unlawfully declaring his parents (father and mother) as dependents on him despite the fact that his father is a retired school principal who was drawing a monthly pension of Rs. 15,000/- per month alongwith other income. CW-1 further deposed that the accused in his both election affidavits of the year 2013 and 2015 assembly election declared his parents as not dependents on him i.e. independent but fraudulently, accused made false declaration and concealed the fact with malafide intention in his Medical Facility Card and stated that his parents are dependent on him in order to unlawfully grab the medical Digitally signed by Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:13:01 +0530 -4- reimbursement. CW-1 further deposed that after knowing the facts, he filed the complaint before police station Civil Lines as well as DCP North for registration of FIR against the accused and later on filed the present case in the Court. CW-1 deposed that the Court called the ATR from police wherein the police confirmed that the father of the accused was drawing a monthly pension of Rs. 15,000/- from the Government which was much higher than the prescribed income limit to cover under the dependent category. CW-1 further deposed that after filing the complaint before the police and the present case, the accused confessed his crime and returned the cheated money totaling Rs. 1,93,642/- alongwith penalty to the Government of NCT Delhi. CW-1 deposed that the witnesses qua the RTI have also confirmed that all the RTI documents submitted by CW1/complainant are genuine and establishes the crime of the accused. CW-1 further deposed that he has submitted the RTI and other evidence to prove the crime of the accused and no evidence had been denied by the accused in his discharge application which was dismissed by this Court. CW-1 produced the copy of complaint dated 11.08.2015 Ex. CW5/A, copy of complaint dated 09.05.2015 to SHO PS Civil Lines mark A and complaint to the DCP North dated 11.05.2015 marked B, copy of nomination papers and affidavit of the accused of the year 2013 elections Ex. CW3/A, copy of nomination papers/affidavit of the accused of the year 2015 elections Ex. CW3/B. CW-1 also produced the copy of application for issue of medical card under DGEHS for MLA/Ex-MLA/Ex-MMCs/family pensioners dated 03.09.2015 Ex. CW2/A, copy of Medical Facility Card No. 218651 Ex. CW2/B, copy of Form TR-27A (Rule 291-A) vide bill no. 771/Med/MLA dated 02.05.2015 Ex. CW2/C, copy of Form order of Government of NCT Delhi dated 02.04.2015 Ex. CW2/D, copy of Delhi Government Health Scheme Medical 2004 Form for reimbursement of medical claim of DGEHS Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 PANDEY Date: 2022.03.21 15:13:18 +0530 -5- beneficiaries dated 15.01.2015 Ex. CW4/A, copy of Form TR-27-A (Rule 291-A) vide bill no. 421/Med/MLA dated 12.09.2014 Ex. CW2/E, copy of Delhi Legislative Assembly Secretariat vide F.31(5) 2014/2015/RTI-05/ID 953/89 dated 22.04.2015 Ex. CW1/A, copy of Delhi Legislative Assembly Secretariat vide F.31(5) 2014/2015/ VS/RTI-05/ID 942/51 dated 20.03.2015 Ex. CW1/B. The complainant/CW-1 also produced the copy of application for issue of Medical Card under DGEH Scheme for MLA for Card no. 218647 dated 18.06.2014 Ex. CW1/F, copy of letter dated 12.11.2014 of Government of NCT Delhi Ex. CW1/G, copy of letter no. 3402/GS/APT/AC-18 dated 04.08.2014 written by accused Ex. CW2/H, copy of letter no. APT/AC-18 3398/VS dated 31.07.2014 written by accused Ex. CW2/I, copy of letter dated 05.08.2014 of Government of NCT Delhi exhibited as Ex. CW2/J, copy of letter dated 25.08.2014 written by accused Ex. CW2/K, copy of concessions for families CW1 Mark 1 (PC), copy of letter dated 17.09.2015 of Delhi Legislative Assembly Secretariat with details of amount returned by the accused and copy of medical facilities Card No. 218647 Ex. CW1/C, status report of the PS Civil Lines dated 03.11.2015 Ex. CW1 (PC)/A, copy of the letter written by the accused to the Secretary/Head of the office, Delhi Legislative Assembly Delhi for issuance of DGHS card for himself and for his wife as well as another application filed by the accused for issuance of fresh DGHS Card for himself, his wife and newly born daughter, letter written by the accused to Sh. Ram Niwas Goel, Hon'ble Speaker as well as letter dated 09.07.2015 written by the accused to the Senior Account Officer, Delhi Legislative Assembly Secretariat received in reply dated 20.06.2018 (ID 1679) of RTI application Ex. CW1 (PC)/B, copy of RTI reply No. 29/307 dated 10.06.2016 Ex. CW1 (PC)/C, copy of registration of sale deed of the property purchased by mother of the accused dated 28.05.2014 Ex. CW1 (PC)/B, copy of photograph Digitally signed by Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:13:26 +0530 -6- showing the house of mother of the accused mark CW1 marked 2 (PC), copy of RTI reply no. 939 dated 23.06.2018 exhibited as Ex. CW1 (PC)/E, copy of the gazette of India Extraordinary dated October, 2018 mark CW1 marked 3 (PC), copy of office memorandum dated 20.07.2016 alongwith Delhi Government Employees Health Scheme obtained from internet mark CW1 marked 4 (PC).
5. The accused was charged for offence punishable U/s 420 IPC vide order dated 09.01.2020 to which accused pleaded not guilty and claim for trial.
6. The complainant opted not to lead any additional evidence at post charge stage. However, accused opted to cross examine the complainant CW1 as per the mandate of Section 246 (4) Cr.PC. Hence, opportunity was given to the accused to cross examine the complainant at post charge stage.
7. In reply to the question put in cross examination at post charge evidence stage, complainant CW1 stated that he had contested election of Legislative Assembly in the year 2015 and the candidate from the Congress Party against the CW1 was Mr. Kanwar Karan Singh and accused was the sitting MLA at that time. CW1 further replied that as per his constitutional right to fight against the corruption, he had filed several RTI against the Congress candidate. CW1 further replied that he was aware that Sh. Kanwar Karan Singh won three consecutive terms as MLA from the same constituency prior to the accused. Witness admitted that he had filed several RTIs qua the accused. Witness further admitted that he had filed several criminal complaint cases against Kanwar Karan Singh. Witness further replied that several criminal complaints had been filed against the accused but this is the only case pending before the Court. Witness denied the suggestion that he is in habit to file false complaints against political rivals having knowledge of law. Witness denied that false complaints were filed just to keep them busy in legal matters.
Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed
RAVINDRA by RAVINDRA
KUMAR KUMAR PANDEY
Date: 2022.03.21
PANDEY 15:13:33 +0530
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Witness replied that he had collected documents exhibited on record in his earlier statement given before the Court and he had gone through all the documents. Witness replied that he was aware that parents of the accused were not permanent resident of Delhi as on 15.11.2013 and as per his knowledge they are permanent resident of Uttar Pradesh as on 15.11.2013. Witness further replied that he was aware about the contents of affidavit filed by accused Ex. CW3/A dated 15.11.2013. Witness admitted that he was aware on the basis of perusal of affidavit Ex. CW3/A that accused was having the cash in hand of Rs. 1000/- and no immovable property. Witness replied that he was not aware whether accused was income tax assessee on 15.11.2013 or not and he further stated that he was having information only on the basis of affidavit which was self declaration of the accused. Witness admitted the contents of document Ex. CW3/A column 9 page 31, the profession /occupation of the accused was mentioned as social worker and he stated that he had seen the affidavit Ex. CW3/A before filing the complaint. In the reply to the question that in November 2013, the requirement of affidavit filed by candidate to the Returning Officer, the word 'dependent' was defined as the person substantially dependent on the income of candidate, witness stated that according to the law, a person is treated as dependent on any public servant/elected representative who is physically and financially dependent on the accused where the monthly income of the dependent is not more than Rs. 3500/-. Witness denied the suggestion that answer given by him was contrary to or not in consonance with the requirement of the explanation which candidate had given before the Election Officer. Witness further replied that as per his knowledge, it was known that accused had some income prior to contesting the election of 2013. Witness further replied that he do not have knowledge about the source of his income prior to the election in the year 2013 nor he had received any money in his Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2022.03.21 15:13:39 +0530 -8- presence prior to 2013. Witness replied that he had not given any complaint to Election Office or any other Government Authority including the Court regarding wrong declaration of the accused given in his affidavit at the time of election in the year 2013 regarding the concealment of other source of income. Witness denied the suggestion that he did not have any specific knowledge of source of income of accused prior to the election in the year 2013 or that this fact has been introduced by him before this Court for the first time to fill up the lacuna. Witness denied the suggestion that he had not specifically admitted or that he was aware that Akhilesh Pati Tripathi was not in the position to support anyone because of his financial inability on 15.11.2013. Witness denied the suggestion that he filed a misc. complaint and made misleading statement with regard to the affidavit of the accused as far as declaration with regard to the dependents are concerned. Witness admitted that he was aware about the contents of affidavit filed by the accused on 20.01.2015 Ex. CW3/B. Witness replied to the question that as per the language of the affidavit required to be given by the candidate to the Election Commissioner in January 2015 nomination papers, the word 'dependent' has been defined as the same meaning as assigned in the explanation (v) under section 75-A of the Representation of People Act, 1951 and witness stated that his case was not just based on only affidavit but other evidence regarding the dependency of parents on the accused which are matter of record. Witness denied that he deliberately avoided to answer the above question. Witness stated that he had gone through the document Ex CW3/B note (4) column (7) (details of movable assets), the word 'dependent' has been defined as same meaning as assigned in Explanation (v) U/s 75-A of the Representation of People Act, 1951 and witness further stated that his case was not just based on the affidavit but on the other evidence regarding the dependency of parents of the accused which are matter of RAVINDRA Digitally signed by Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 KUMAR RAVINDRA KUMAR PANDEY Date: 2022.03.21 15:13:54 PANDEY +0530 -9- record. Witness denied that he deliberately avoided to give the answer of the question. Witness replied to the fact that as per Explanation (v) U/s 75-A of the Representation of People Act, 1951, " the term dependent children" means sons and daughter who have no separate means of earning and are wholly dependent on the elected candidate referred to sub section (I) for their livelihood, that his case was not against the children but falsely obtaining the medical facility card by the accused for his independent parents and witness further stated that his case is not just based on affidavit but also on the other evidences which are matter of record. Witness denied the suggestion that he had deliberately made incorrect averment in his complaint or that he was aware that there was no specific requirement to mention the status of the parents in the affidavit Ex. CW3/B. Witness further replied that he had not personally visited to the native place of the accused where his parents were residing in the year 2013, 2014 and 2015. Witness further replied that he had not entered the house of the accused in Delhi in the year 2013, 2014 and 2015. Witness replied when asked that whether he collected any evidence regarding the duration of the year 2013, 2014 and 2015 when parents of the accused stayed with him in Delhi, by saying that as per the evidence collected under RTI, the parents of the accused were the permanent resident of the native place of the accused. Witness denied that he deliberately avoided to give straight answer. Witness replied that accused applied/obtained various medical facilities cards after becoming MLA in the year 2013 election. Witness denied that he avoided to give straight answer. Witness replied that as per the evidence collected under RTI, the treatment of the mother of the accused took place somewhere in the year 2014-2015 as exact date he did not remember. Witness further replied after refreshing his memories from the judicial record that as per record of the document of B.L Kapur Hospital obtained under RTI, the mother of the accused Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2022.03.21 15:14:02 +0530 -10- took treatment on 02.08.2014 and 09.08.2014. Witness replied that accused applied for medical card on 18.06.2014, and the Card Number 218651 was applied on 25.08.2014. Witness replied that he cannot tell the exact date when the mother of the accused came to Delhi for treatment. Witness replied that the father of the accused was drawing a pension of Rs. 15,000/- per month which is evidence on record as per Action Taken Report submitted by the police. Witness denied the suggestion that he avoided to give straight answer. Witness replied that he was aware that father of the accused was a retired government servant and was entitled for medical services. Witness further replied that he was not aware whether he filed any document to that effect on record. Witness replied that mother of the accused was not dependent on the accused since the beginning and as per Government Rules, a retired government servant alongwith his wife and dependents were entitled for medical reimbursement. Witness further replied that the father of the accused was a retired government teacher and was drawing a pension of Rs. 15,000/- per month and was entitled for his reimbursement of his own as well as his wife's medical treatment. Witness further replied that mother of the accused was not dependent on the accused. Witness replied that as per medical record supplied by GNCTD under RTI, the mother of the accused took treatment at B.L Kapur Hospital. Witness denied the suggestion that he avoided to give straight answers to the questions put to him. Witness further replied to the question that mother of the accused remain with the accused for getting the treatment from the month of June 2014 till January 2015 by saying that medical record of the mother of the accused are having all the details regarding the treatment. Witness denied the suggestion that he deliberately avoided to give straight answers to the questions put to him regarding the duration of stay of the mother of the accused in Delhi during the treatment. Witness denied the suggestion that he deliberately Digitally signed RAVINDRA by RAVINDRA Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:14:10 +0530 -11- avoided to answer the question regarding the period of stay and place of stay regarding the father of the accused from the period June 2014 to January 2015. Witness denied the suggestion that he was aware that from June 2014 till January 2015, the mother of the accused was totally dependent (financially as well as physically) upon the accused. Witness further denied that he was aware that father of the accused was not supporting the mother of the accused during that period. Witness denied that he had made deliberately incorrect averment in his complaint, depositions in the Court by concealing the material and relevant facts and by introducing incorrect interpretations of the rules and law solely with view to create prejudice and misguide the Court. Witness admitted that Delhi Legislative Assembly was dissolved on 04.11.2014 and stated that he do not remember the exact date. Witness further replied that whenever the assembly dissolved, the salaries were not paid by the Government to the Ex Members of the Assembly but pensions are paid to all Ex. MLAs in Delhi. Witness denied the suggestion that he was aware that accused was not paid any salary or pension after Assembly was dissolved till the time he was re-elected as MLA in February 2015. Witness denied the suggestion that he had deliberately not placed any record suggesting the date, time and year and amount of pension paid to the accused when Assembly was dissolved and when he was again re-elected in February 2015. Witness replied that he was not aware whether accused was doing any business during the period when Assembly was dissolved in the year 2014 till he was re-elected as MLA in February 2015. Witness replied that he do not remember whether he moved any complaint against accused to Delhi Vidhan Sabha at any point of time. Witness further replied that he do not remember whether he moved any complaint against accused before Delhi Vidhan Sabha while asking to take action against the accused. Witness stated that he had not made any complaint directly to the Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:14:18 +0530 -12- Speaker of Delhi Vidhan Sabha against the accused in connection with the present case. Witness denied the suggestion that he had not mention the amount or quantified the loss to the State, either in his complaint or in his deposition nor placed any record because no loss was caused to Delhi Vidhan Sabha. Witness replied that he do not remember whether his complaint was put before the Speaker of Delhi Vidhan Sabha and same was considered and disposed off and stated that the present case is the criminal proceeding and not the civil proceeding. The witness replied to the question that the matter of the accused was considered by the Speaker of Delhi Vidhan Sabha and since the accused had voluntarily returned the amount claimed for medical treatment of his mother with penal interest, with the permission of the Speaker of Legislative Assembly, the matter was closed and no further action was proposed in that regard, by saying that the accused returned the amount when witness filed the complaint to the police and Court. Witness further replied that any proceeding by the Speaker of Delhi Vidhan Sabha are not relevant to this case. Witness denied the suggestion that he deliberately avoided to give straight answers to the questions put to him. Witness denied the suggestion that he filed false complaint and made false depositions against the accused despite knowing the fact of the present case that there is no specific rules or guideline defining the term ' dependent'. Witness further denied the suggestion that accused was morally, ethically and was duty bound to provide treatment to his mother and to avoid any controversy, accused returned the amount with interest released by Delhi Vidhan Sabha for treatment of his mother. Witness further denied the suggestion that he filed the complaint vindictively and to take vengeance on account of suffering of political defeat in the election by land slide margin or the present complaint was filed by him by knowingly well that no offence was committed by the accused. RAVINDRA Digitally signed by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 PANDEY 15:14:25 +0530 -13- After recording statement of the witness/complainant in post charge evidence, the statement of the accused was recorded U/s 313 Cr.PC by putting all the evidence available on record. The accused opted to lead defence evidence. However, accused did not led any defence evidence and defence evidence was closed on the basis of statement of the accused vide order dated 06.01.2021.
8. Final arguments heard at length. Heard the submission of both the parties.
Perused the case law as relied upon by both the parties and also perused the written submission filed by both the parties.
9. It is submitted on behalf of the complainant that complainant has proved his case beyond reasonable doubt and accused has failed to file even a single defence evidence on record. It is further submitted by the complainant that accused has already confessed his crime several times of which all the evidence is on record. It is submitted by the complainant that accused took false defence that he returned the cheated amount. However, accused returned the cheated amount after filing of complaint to the police on 09.05.2015 and application U/s 156(3) Cr.PC on 18.06.2015. It is further submitted that accused returned the cheated amount on 16.09.2015. It is further submitted by the complainant that the return of cheated amount by the accused is itself a confession. It is further submitted that the requirement of sanction U/s 197 Cr.PC is not applicable in the present case as it does not give any blanket cover. It is further submitted that Section 197 Cr.PC is applicable when the act was done as a part of official duty by the alleged and in present case the act was not done as a part of official duty. It is further submitted that the law led down in case titled as " Devender Pratap Singh Vs. State of Bihar, Punjab State wherehousing Corporation Vs. Bhushan Chander & Ors., State of Maharashtra Vs. Deva Hari Singh Panwar & Ors, I.G Police & Ors.
Digitally signed by RAVINDRASh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2022.03.21 15:14:32 +0530 -14- Vs. Battanapatla Venkata Ratnam & Anrs. & D. Devraja Vs. Owais Sabeer Hussain", is applicable in the present case. It is further argued that complainant has locus to file the criminal complaint and it is settled law that anybody can set the criminal law in motion. It is further submitted that accused has committed the crime against the Government / Public Exchequer and nothing in private. It is further submitted that law laid down in "N. Natrajan Vs. B.K Subha Rao & Dr. Subramaniam Swami Vs. Dr. Manmohan Singh & Anrs." is applicable in the present case.
10. It is submitted on behalf of the accused by Ld defence counsel that accused is a sitting MLA of Delhi Legislative Assembly and he was elected as MLA in the year 2013, 2015 and 2020 from Model Town Constituency. It is further submitted that the complainant Sh. Vivek Garg also contested election against the accused in the year 2015 and complainant lost his election. It is further submitted that accused made correct declaration before the Returning Officer in the affidavit/undertaking given in 2013 and 2015 as he was unemployed in the year 2013 as well as in the January 2015 as the Delhi Legislative Assembly was dissolved in the year 2014. It is submitted that till the filing of Form-26 Ex. CW3/A, the accused was a social worker and was not having any source of income and therefore, there was no question of declaring his parents as dependent upon him and again in the November 2014 when Delhi Assembly was dissolved, accused become unemployed and accordingly mentions his parents as not dependent upon him. It is further submitted that Section 75-A of the Representation of People Act, explanation (v) defines the term ' dependent children' means sons and daughters who have no separate means of earning and are totally dependent on the elected candidate referred to in sub section (1) for their livelihood. It is further submitted Digitally signed RAVINDRA by RAVINDRA Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 KUMAR KUMAR PANDEY PANDEY Date: 2022.03.21 15:14:38 +0530 -15- that in the format of affidavit/form-26 Ex. CW3/B, the term 'dependent' has no reference to mention the names of parents if it be read with Section 75-A of the Representation of People Act. It is further submitted that the mother of the accused was fully dependent upon the accused physically as well as financially and there is no evidence on record to show that the mother of the accused was having income more than Rs. 3500/- per month. It is further submitted that in June 2014, accused mother came to live with him in Delhi for getting her treatment as she was critically ill and father of the accused opted to remain at his native place. It is further submitted that being a son accused was legally and morally duty bound to take care of his ailing mother and since mother of the accused was living with him, the father of the accused was having no occasion to support her financially as father was living at his native place. It is further submitted that when the assembly was dissolved in November 2014, the salary of the accused was stopped and he become unemployed and therefore, mother of the accused returned back to her native place. It is further submitted that law laid down in case titled as " State of Madhya Pradesh Vs. M.P Ojha, Kumar Ram Krishna Vs. College of Vocational Studies, Union of India Vs. Smt. Shyama Malhotra & Ors, Smt. Padma Jain & Ors. Vs. State of U.P., regarding the applicability of the term 'dependent' is applicable in the present facts and circumstances of the case. It is submitted that though the policy for reimbursement was not clear but the accused feels that he was entitled to claim the amount spend on medical expenses of his mother. However, to avoid any controversy and without prejudice to the right of the accused, accused voluntarily returned the entire sum to Government of Delhi with penal interest. It is further submitted that the accused wrote a letter to the Speaker of Vidhan Sabha regarding his intention to return the amount on 09.07.2015 but the present complaint was Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2022.03.21 15:14:44 +0530 -16- filed on 11.08.2015 and accused came to know about summoning order on 12.10.2017 i.e. after a period of more than 2.5 years. It is further submitted that the status report and communication with the Delhi Vidhan Sabha and the order of Speaker of Vidhan Sabha clearly mentioned that Vidhan Sabha does not intent to initiate any action against the accused in this matter. It is further submitted that the complainant is trying to boost his political carrier by initiating the present proceeding. It is further submitted that no evidence is produced to show that the mother of the accused was supported by the father of the accused or she was having any source of income. It is further submitted that complainant lost his election when he contested against the accused and to settle the score of his defeat in Assembly Election, he lodged the present complaint. It is further submitted that the accused was a sitting Member of Delhi Legislative Assembly and as per rules, he alongwith his dependents are entitled to avail medical benefits as per rule of Delhi Legislative Assembly. It is further submitted that the prosecution of the accused being a Public Servant, required Sanction U/s 197 Cr.PC. However, Delhi Vidhan Sabha being competent authority not initiated any action against the accused. Hence, the present complaint is liable to be dismissed and accused is liable to be acquitted from the present case.
11. In order to prove the charge of offence punishable U/s 420 IPC against the accused, the complainant Mr. Vivek Garg has relied upon the following documents:-
(1) Copy of complaint dated 18.08.2015 Ex. CW5/A (2) Copy of complaint dated 09.05.2015 with SHO PS Civil Lines Mark A and complaint to the DCP North dated 11.05.2015 Mark B. (3) Copy of Nomination Paper/Affidavit of the accused of the year 2013 election Digitally signed Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 by RAVINDRA RAVINDRA KUMAR PANDEY KUMAR Date:
PANDEY 2022.03.21
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Ex. CW3/A.
(4) Copy of Nomination Paper/Affidavit of accused of the year 2015 election Ex.
CW3/B. (5) Copy of application for issue of medical card under DGEHS for MLA/Ex. MLA/Ex. MMC/Family Pensioners dated 03.09.2015 Ex. CW2/A. (6) Copy of Medical Facility Card Ex. CW2/B. (7) Copy of Form TR-27-A (Rule 291-A) vide bill no. 771/Med/MLA dated 05.02.2015 Ex. CW2/C. (8) Copy of Form Order of Government of NCT Delhi dated 04.05.2015 Ex. CW2/D. (9) Copy of DGHS Medical Form for reimbursement of medical claim of beneficiaries dated 15.01.2015 Ex. CW4/A. (10) Copy of form T.A 27-A (Rule 291-A) vide Bill No. 421/Med/MLA dated 12.09.2014 already exhibited as Ex. CW2/E (Colly).
(11) Copy of Delhi Legislative Assembly Secretariat vide F.31(5)2014/15/RTI-
05/ID 953/89 dated 22.04.2015 already exhibited as Ex.CW1/A. (12)Copy of Delhi Legislative Assembly Secretariat vide F.31(5)2014/15/VS/RTI- 05/ID-942/51 dated 20.03.2015 already exhibited as Ex.CW1/B. (13) Copy of application for issue of medical card under DGEH Scheme for MLAs for card No. 218647 dated 18.06.2014 already exhibited as Ex.CW1/F. (14) Copy of letter dated 12.11.2014 of Govt of NCT of Delhi already exhibited as Ex.CW1/G. (15) Copy of letter No.3402/GS/APT/AC-18 dated 04.08.2014 written by accused Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2022.03.21 15:15:10 +0530 -18- already exhibited as Ex.CW2/H(colly).
(16) Copy of letter No.APT/AC-18/3398/VS dated 31.07.2014 written by accused already exhibited as Ex.CW2/I. (17) Copy of letter dated 05.08.14 of Govt of NCT of Delhi already exhibited as Ex.CW2/J. (18) Copy of letter dated 25.08.14 written by the accused already exhibited as Ex.CW2/K. (19) Copy of Concessions for Families is now CW1 Mark-1(PC) (colly). (20) Copy of letter dated 17.09.15 of Delhi Legislative Assembly Secretariat with details of amount returned by the accused and copy of medical facilities card No.218647 already exhibited as Ex.CW1/C(Colly).
(21) Status Report of PS Civil Lines dated 03.11.2015 is now exhibited as Ex.CW1(PC)/A(colly).
(22) Copy of letter written by the accused to The Secretary/Head of Office, Delhi Legislative Assembly, Delhi for issuance of DGHS Card for himself and his wife as well as another application filed by the accused for issuance of fresh DGHS Card for himself, his wife and newly born daughter, letter written by the accused to Sh. Ram Niwas Goel, Hon'ble Speaker as well as letter dated 9.7.15 written by the accused to the Sr. Account Officer, Delhi Legislative Assembly Secretariat
-received with the reply dated 20.06.2018(ID 1679) of RTI application is now Ex.CW1(PC)/B(colly).(objected by the defence counsel as to the mode of proof).
(23) Copy of RTI reply No. 29/307 dated 10.06.2016 being exhibited now Ex.CW1(PC)/C(colly-2 pages)(OSR).(objected by the defence counsel as to the mode of proof).
(24) Copy of the registration of sale deed of property purchased by mother of Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:15:16 +0530 -19- accused dated 28.05.2014 is exhibited as Ex.CW1(PC)/D(colly-20 pages). (objected by the defence counsel as to the mode of proof). (25) Copy of photographs showing the house of the mother of the accused is marked as CW1 Mark-2(PC).
(26) Copy of RTI reply No. 939 dated 23.06.2018 is exhibited as Ex.CW1(PC)/E(colly-5pages).(objected by the defence counsel as to the mode of proof).
(27) Copy of -'To be published in the Gazette of India, Extraordinary' dated October 2018 obtained from Internet is now marked as Mark CW1 Mark-3(PC) (colly-6 pages).
(28) Copy of Office Memorandum dated 20.07.2016 alongwith Delhi Government Employee Health Scheme obtained from Internet is now marked as Mark CW1 Mark-4(PC)(colly-3 pages).
13. The complainant contended that no sanction as per mandate of Section 197 of the Code of Criminal Procedure, 1973 is required in the present case. Admittedly, no document was proved or placed on record regarding the sanction to prosecute the accused being a public servant/ elected member of the Delhi Legislative Assembly.
Section 197 in The Code Of Criminal Procedure, 1973 provides as under:
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.
Digitally signed by RAVINDRA Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2022.03.21 15:15:22 +0530 -20-
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression"
State Government" were substituted.
(3A) 1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
14. The Court is of the considered view in view of the provision of Section 197 Cr.PC that the sanction to prosecute as required U/s 197 Cr.PC is mandatory in nature and accused being a public servant and a member of Delhi Vidhan Sabha could not be prosecuted without obtaining sanction to prosecute from the competent authority i.e. Speaker of the Delhi Vidhan Sabha.
15. The complainant also contended that mother of the accused was not dependent on the accused as she was solely dependent upon her husband who was retired Government Teacher having the pension more than the required limit to avail the benefit for dependency upon the public servant /accused. The complainant has relied upon the status report /Police Reports filed in support of his contention that the father of the accused was a government teacher having pension of more than Rs. 15,000/- and Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:15:31 +0530 -21- mother of the accused was dependent upon the father of the accused and mother was not legally entitled to be dependent upon the accused to avail the medical facility benefits. The status report Ex. CW1(PC/A) filed by SI Anand Singh which is relied by the complainant to establish the aspect of income of the father of the accused and dependency of the mother of the accused upon the father of the accused (para-3) is reproduced herein as under:-
" During enquiry Akhilesh Tripathi is interrogated in this regard. He stated that when he applied for MLA, he has no source of income. His father is retired from teacher and he obtaining about Rs. 15,000/- per month as pension. When he was elected as MLA in Delhi Vidhan Sabha Elections, he applied for medical health card and the Delhi Vidhan Sabha issued medical health card for himself, his father and mother. He had applied for reimbursement of sum of Rs. 1,73,000/- regarding treatment of her mother from Delhi Vidhan Sabha and same was reimbursed to him. When he came to know that his father being a pensioner not entitled for any medical claim, he written a letter to Vidhan Sabha to know the rules and for necessary action on 09.07.2015 and on this letter, a meeting was called by Vidhan Sabha and he was informed to return the said amount with interest. After that, he returned all the amount with interest totaling amount Rs. 2,00,000/- to the Vidhan Sabha on 16.09.2015.
It is further submitted that the enquiry report asked from Deputy Secretary, Legislative Branch, Delhi Vidhan Sabha office, Old Secretariat Delhi and Deputy Secretary commented that " in this connection, I am to inform you that Sh. Akhilesh Tripathi had voluntarily returned the amount claimed for medical treatment of his mother claimed by him i.e. amount of Rs. 1,72,763/- alongwith penal interest of Rs. 20,879/- on 16.09.2015 with due permission of Hon'ble Speaker. In view of the above, Legislative treats the matter as closed and does not oppose to take any further action in Digitally signed Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:15:37 +0530 -22- this regard."
The copy of the supporting letter of Deputy Secretary dated 02.11.2015 addressed to the SHO PS Civil Lines was also attached with the status report.
The Indian Evidence Act, 1872 Chapter V provides about the documentary evidence.
61. Proof of contents of documents. -- The contents of documents may be proved either by primary or by secondary evidence.
62. Primary evidence. -- Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. --Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. -- Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
63. Secondary evidence. -- Secondary evidence means and includes -- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was Digitally signed by RAVINDRA RAVINDRA KUMAR Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 KUMAR PANDEY Date: 2022.03.21 PANDEY 15:15:55 +0530 -23- transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
64. Proof of documents by primary evidence. -- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be given.-- Secondary evidence may be given of the existence, condition or contents of a document in the following cases: --(a) when the original is shown or appears to be in the possession or power -- of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this act, or by any other law in force (India) to be given in evidence, (g) when the originals consists of numerous accounts or other document which cannot conveniently be examined in the Court, and the fact to be proved is the general result of Court collection.
In cases (a), (c) and (d), any secondary evidence of the contents of document is admissible.
In case (b), the written admission is admissible.
In case (g), evidence may be given as to the general result of the document by any person who examined them, and who is skilled in the examination of such documents.
In the present case, the status report Ex. CW1(PC)/A is neither a primary evidence within the meaning of Section 62 of the Indian Evidence Act, 1872, nor the secondary evidence within the meaning of Section 63 of the Indian Evidence Act, 1872, as no witness from the concerned department from where the father of the accused was Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:16:10 +0530 -24- allegedly drawing the pension of sum of Rs. 15,000/- per month was called or produced or any document produced. Hence, the content of the document Ex. CW1(PC)/A regarding the income of the father of the accused is not proved within the meaning of Section 3 of the Indian Evidence Act, 1872. Similarly, the document Ex. CW1(PC)/D and document Mark CW1 Mark 2 (PC) regarding the registration of sale deed of the property purchased by mother of the accused dated 28.05.2014 is not proved either by primary evidence or by secondary evidence.
16. The another contention of the complainant is that mother of the accused was not entitled as dependent of the accused as she was the dependent on her husband who was drawing a pension of Rs. 15,000/- per month.
The Maintenance and Welfare of Parents & Senior Citizens Act, 2007, defines the term ' Maintenance' in sub clause (b) of Section 2 as includes provision for food, clothing, residence and medical attendance and treatment.
Its clause (a) Section 2 defines children includes son, daughter, grand son and grand daughter but does not include a minor.
Its clause (d) Section 2 defines about parents means father or mother whether biological, adoptive or step father or step mother, as the case may be whether or not the father or mother is senior citizen.
Its clause (k) Section 2 defines the welfare means the provision for food, health care, recreation center and other amenities necessary for the senior citizens.
Section 4 sub section (3) puts obligation on the children to maintain his or her parents extends to the needs of such parents either father or mother or both, as the case may be, so that such parent may lead a normal life.
In the present case, even if it is presumed that father was drawing a pension Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:16:17 +0530 -25- of Rs. 15,000/- per month (which is not though proved) and mother was dependent upon the father of the accused, then also the accused was not only morally bound to maintain his father and mother but also legally bound to maintain his father and mother within the meaning of Section 4 sub clause (1) of The Maintenance and Welfare of Parents & Senior Citizens Act, 2007. Secondly, the mother of the accused was also separately entitled to be maintained by the accused as per mandate of Section 4 sub clause (1) of The Maintenance and Welfare of Parents & Senior Citizens Act, 2007. So the contention of the complainant regarding the illegality in moving the application for obtaining the medical benefits of mother of the accused is not acceptable and rejected.
17. The another contention of the complainant is that accused did not disclose regarding the dependency of his parents in his both election affidavits and later on moved application to obtain the medical benefits for his parents as dependents upon him.
The alleged election affidavits were filed by the accused under the provision of Section 75-A of The Representation of the People Act, 1951.
Section 75A in The Representation of the People Act, 1951 provides as under:-
75A. Declaration of assets and liabilities.--
(1) Every elected candidate for a House of Parliament shall, within ninety days from the date on which he makes and subscribes an oath or affirmation, according to the form set out for the purpose in the Third Schedule to the Constitution, for taking his seat in either House of Parliament, furnish the information, relating to--
(i) the movable and immovable property of which he, his spouse and his dependant children are jointly or severally owners or beneficiary;
(ii) his liabilities to any public financial institution; and
(iii) his liabilities to the Central Government or the State Government, to the Chairman of the Council of States or the Speaker of the House of the People, as the case may be. (2) The information under sub-section (1) shall be furnished in such form and in such manner as may be prescribed in the rules made under sub-section (3).
(3) The Chairman of the Council of States or the Speaker of the House of the People, as the case may be, may make rules for the purposes of sub-section (2).
(4) The rules made by the Chairman of the Council of States or the Speaker of the House of the People, under sub-section (3) shall be laid, as soon as may be after they are made, before the Council of States or the House of the People, as the case may be, for a total period of thirty days which may be Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 PANDEY 15:16:30 +0530 -26- comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the Council of States or the House of the People and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.
(5) The Chairman of the Council of States or the Speaker of the House of the People, as the case may be, may direct that any wilful contravention of the rules made under sub-section (3) by an elected candidate for a House of Parliament referred to in sub-section (1) may be dealt with in the same manner as a breach of privilege of the Council of States or the House of the People, as the case may be.
Explanation.--For the purposes of this section,--
(i) "immovable property" means the land and includes any building or other structure attached to the land or permanently fastened to anything which is attached to the land;
(ii) "movable property" means any other property which is not the immovable property and includes corporeal and incorporeal property of every description;
(iii) "public financial institution" means a public financial institution within the meaning of section 4A of the Companies Act, 1956 (1 of 1956) and includes bank;
(iv) "bank" referred to in clause (iii) means--
(a) State Bank of India constituted under section 3 of the State Bank of India Act, 1955 (23 of 1955);
(b) subsidiary bank having the meaning assigned to it in clause (k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);
(c) Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976);
(d) corresponding new bank having the meaning assigned to it in clause (da) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);
(e) co-operative bank having the meaning assigned to it in clause (cci) of section 5 of the Banking Regulation Act, 1949 (10 of 1949) as modified by sub-clause (i) of clause (c) of section 56 of that Act; and
(v) "dependant children" means sons and daughters who have no separate means of earning and are wholly dependant on the elected candidate referred to in sub-section (1) for their livelihood.
On the perusal of Section 75-A of The Representation of the People Act, 1951, Explanation-(v), it is found that there is no requirement to disclose about the dependency of parents in the election affidavits by the candidate and its explanation (v) only talks about the dependent children and not about the dependent parents. Hence, the contention of the complainant regarding false averment in the election affidavits is rejected. Secondly, the complainant never approached to the Competent Authority i.e. Election Commission of India to lodge his complaint regarding the false averment in the Digitally signed Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2022.03.21 15:16:36 +0530 -27- affidavits as no document is produced and proved on record. Hence, the contention of the complainant regarding alleged false affidavits is rejected.
18. The complainant contended that accused committed offence punishable U/s 420 IPC and he confessed his crime by returning the money after filing of complaint to the police and after lodging the complaint in the Court U/s 156(3) Cr.PC read with Section 200 Cr.PC.
Section 420 in The Indian Penal Code provides as under:-
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The cheating is defined U/s 415 in The Indian Penal Code as under:-
415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section. Illustrations
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019 Digitally signed
by RAVINDRA
RAVINDRA KUMAR
KUMAR PANDEY
PANDEY Date:
2022.03.21
15:16:44 +0530
-28-
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.
In the present case, the accused admittedly returned to the Delhi Vidhan Sabha, the amount of money obtained regarding treatment of his mother. However, the same was returned under the belief that his mother and father were not entitled to avail the benefit of dependent upon the accused. However, in view of the mandate of provision of the Maintenance & Welfare of Parents & Senior Citizens Act, 2007, accused was legally bound to maintain his mother and father as per Section 4 sub clause (4) of the said Act. Hence, the claim of the accused regarding reimbursement of the expenses of treatment of his mother cannot be covered within the meaning of Section 415 of the IPC read with Section 420 of the IPC. The Court is of the considered view that no offence was committed by the accused for which he was charged in the present case. Accordingly, accused Akhilesh Pati Tripathi S/o Sh. Abhay Nand Tripathi is acquitted from the present case and from the charge of offence punishable U/s 420 of IPC.
19. The accused is directed to furnish bail bond/surety bond for sum of Rs. 10,000/- in terms of Section 437-A Cr.PC within two days from today. File be consigned to Record Room after due compliance. RAVINDRA Digitally signed by RAVINDRA KUMAR KUMAR PANDEY Date: 2022.03.21 Announced in the open Court, PANDEY 15:16:51 +0530 On 21st March, 2022. (Ravindra Kumar Pandey) ACMM-01,RADC/New Delhi Sh. Vivek Garg Advocate Vs. Akhilesh Pati Tripathi & Ors. CC No. 04/2019