Delhi District Court
Fir No.30 /2017, Ps :Kotwali State vs Sumit Sharma & Anr. on 1 February, 2019
FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Sumit Sharma & Anr
FIR No. 30/2017
PS : Kotwali
U/s 420/468/471/120B IPC
Date of Institution : 06.05.2017
Date of reserving of order : 19.01.2019
Date of Judgment : 01.02.2019
CNR No. DLCT020108782017
JUDGMENT
1. Serial No. of the case : 5109/2017
2. Name of the Complainant : Meer Hassan
3. Date of incident : Between September 2016 to March 2017.
4. Name of accused persons :
1. Sumit Sharma @ Vikky Sharma S/o Sh. Dev Raj, R/o H. No. G20/135, Near Parnami Mandir Sector07, Rohini, Delhi
2. Simranjeet Singh @ Bunty S/o Ajit Singh, R/o H. No. 143, 2nd Floor, Krishan Kunj, Gali No.1, Laxmi Nagar, Delhi Page 1 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
5. Offence for which chargesheet was filed : 420/468/471/120B IPC
6. Offence for which charge has been framed :
Accused Sumit Sharma has been charged with the offences punishable under Section 120B IPC, 420/120B, 467/120B and 474/467 IPC. Accused Simranjeet Singh has been charged with offences punishable under Section 120B IPC, 420/120B, 467/120B and 471/467 IPC.
6. Plea of accused : Not guilty
7. Final Order :
Accused Sumit Convicted for offence
Sharma punishable under
Section 420, IPC.
Accused Simranjeet Acquitted.
Singh
8. Date of Judgment : 01.02.2019
BRIEF REASONS FOR ORDER:
1. Mr. Sumit Sharma and Mr. Simranjeet Singh, the accused herein, have been chargesheeted for committing offences punishable under Section 420/468/471/120B, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").Page 2 of 52 MM08(C)/THC/01.02.2019
FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
2. The case of the prosecution is that accused Sumit Sharma @ Vicky Sharma had met with complainant Meer Hassan and became his friend. He told his name as Rahul Sharma @ Vicky. He told the complainant that he could arrange Job Visas of different countries. The complainant had paid money to the accused for sending him as promised. He had handed over his passport to the accused. A person named Sonu who was known to the complainant had also made such payment to the accused alongwith his passport. The accused had returned their passports alongwith visa stamp of Canada. Under suspicion the complainant and his friends approached the Canadian embassy. It was found that there was no Visa issued on those passports and that it was a forged stamp. The complainant also came to know that accused Sumit Sharma had also cheated various other persons in the similar manner. Therefore, he made a complaint to the police. On the basis of the complaint present FIR was registered. During investigation the accused Vicky Sharma was apprehended at the instance of the complainant. Four different passports with Visa stamp of Malasiya were recovered from his possession. The accused disclosed that he had got those forged Visa stamps affixed from accused Page 3 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
Simranjeet. At the instance of accused Sumit Sharma, accused Simranjeet Singh was apprehended. He got recovered various other passports. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused persons were chargesheeted for the offences punishable under Section 420/468/471/120B, Indian Penal Code.
3. After perusing the record, cognizance was taken by the Court. The accused were in J/C. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 120BIPC, 420/120B IPC, 467/120B IPC and 474 IPC was framed against the accused Sumit Sharma. Charge for the offence punishable under Section 120BIPC, 420/120B IPC, 467/120B IPC and Section 471 IPC r/w Section 467 IPC was framed against the accused Simranjeet Singh. The charge was read over to them to which they pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 15 witnesses to prove its case against the accused persons.
5. PW1 Markandey Singh is one of the Victims. He has deposed that on 16.11.2016, he had given his Page 4 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
passport to one agent for affixing the Visa for Canada. He had received the ticket and passport which was affixed with the Visa of Canada from the aforesaid agent. He had met with accused Sumit Sharma at Chandni Chowk, Delhi and had shown his aforesaid ticket alongwith passport. Accused Sumit Sharma had informed him that the Visa affixed on passport was fake.
6. The witness was crossexamined by Ld. APP as he was resiling from his previous statement made to the IO. The witness admitted that on 02.04.2017, IO / SI Vishwanath had inquired him at the office of special staff, North District and recorded his statement. He also admitted that he had met with accused Sumit Sharma in his village in September 2016 and victim Meer Hasan was the introducer. He had also admitted that he had gone to Canada Embassy where concerned officials had informed that the Visa affixed on his passport was forged. He also admitted that he had taken his passport on superdari vide superdarinana Ex.PW1/A. He also admitted the Punchnama which is Ex.PW1/B (running into 20 pages) (colly). However, the witness denied the suggestion that accused Sumit Sharma had made demand of Rs.7 lacs from him. He also denied the suggestion that he had given Page 5 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
his passport to the accused. He also denied the making of any payment to the accused.
7. PW2 Sonu Choudhary is also one of the victims. He has deposed that about one year ago, he had sent his passport through courier to one agent in Delhi for affixation of Visa of any country. He had collected his passport from one person and Visa of Canada was affixed on it. He had shown his passport to Meer Hasan who is the resident of his village. He had also met with Sumit Sharma @ Vicky Sharma alongwith Meer Hasan.
8. The witness was crossexamined by Ld. APP as he was resiling from his previous statement made to the IO. The witness admitted that on 02.04.2017, IO / SI Vishwanath had inquired him at the office of special staff, North District and recorded his statement. He also admitted that he had taken his passport on superdari vide superdarinana Ex.PW1/A. He also admitted the Punchnama which is Ex.PW1/B (running into 20 pages) (colly). However, the witness denied the suggestion that accused Sumit Sharma had made demand of money from him. He also denied the suggestion that he had given his passport to the accused. He also denied the making of any payment to the accused.
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9. PW3 Sh. Dhan Ram is again one of the victims. He has deposed that in November 2016, he was working as a Quality analyst in Mattsen Kumar LLC, Jaipur, Rajasthan. He had contacted accused Vicky Sharma through his friend Rupesh Kumar. The accused had stated that he would send him to Malaysia for working as a computer operator. In November 2016, he alongwith Rupesh Kumar and Vikash met him at Chandni Chowk near Gurudwara, Delhi. He had told him that he would take ₹80,000/ for sending to Malaysia. Thereafter, he had contacted accused Vicky Shamra on his mobile phone number which was saved in his mobile phone. In the month November 2016, he had called him and his friends to reach at hospital of Nangloi for medical checkup. He had handed over ₹5000/ to accused Vicky Sharma on that day. He had also handed over his passport to him and he had assured that his visa of Malaysia Embassy would be procured by him. He had received a call from operation cell department, Delhi who informed him that his passport had been recovered from accused Vicky Sharma. Thereafter, in May 2017, he had taken his passport on superdari from the Court vide superdarinama Ex.PW3/A. The copy of passport is placed on the file which is marked Page 7 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
as Mark X1.
10. PW4 Sh. Rupesh Kumar is also one of the Victims. He has deposed that in the year 2016, he had received a call from his friend namely Vikas. He informed him that his friend Shiva was going to Malasia. He had also requested for going to Malaysia. His friend Vikash, after taking number from Shiva had contacted with one Meer Hasan. He had also informed Vikash that his friend Dhan Ram also wanted to go to Malaysia. He alongwith Dhan Ram and Vikash had contacted Meer Hassan for going to Malaysia. Meer Hassan had given the mobile number of accused Vicky Sharma to them. Accused Vicky Sharma had called them at near Gurudwara Chandni Chowk, Delhi. Thereafter, all three friends reached the aforesaid place of Chandni Chowk where accused Vicky Sharma met them. He had demanded ₹80,000/ per person for sending to Malyasia. He had handed over ₹5000/ to accused Vicky Sharma on the very same day. In the month of November 2016, all three friends had reached at one hospital of Nangloi on calling by accused Vicky Sharma. They were medically examined at the hospital. Accused Vicky Sharma had taken their passports. Thereafter, they left for their houses. Accused had not Page 8 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
responded their messages or calls for about 23 months. Meer Hassan was also not responding. One day Meer Hassan had informed him that accused were in Jail. They had reached at the office of Crime Branch where they came to know about the registration of this case. IO had recorded his statement in this regard. Thereafter, he had taken his passport on superdari from the Court. Copy of passport is placed on the case file which is marked as Mark X2.
11. PW5 Srikant is one of the victims. He has deposed that in November 2016, he had given his passport to Meer Hassan who is also a resident of his village. He had to go to Malaysia and for that purpose, he had handed over passport to him. He had handed over ₹82,000/ to Meer Hassan for going to Malaysia. He had received his passport in Delhi after registration of this case.
12. The witness was crossexamined by Ld. APP. He has admitted that he had handed over passport to Meer Hassan in September 2016 and accused Vikky Sharma was also present. He also admitted that accused Vicky Sharma had demanded ₹80,000/ for sanding to Malaysia. He also admitted that in December 2016, he had handed over ₹75000/ and his passport to accused Vicky Page 9 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
Sharma in Delhi at Gurudwara, Chandni Chowk. He also admitted that IO of this case had recorded his statement in this regard on 02.04.2017. He also admitted that he had taken his passport on superdari from the Court. The copy of passport is on judicial file which is Mark X3.
13. PW6 HC Jitender was DO who had registered the FIR No. 30/2017 PS Kotwali on the basis of a rukka given by SI Vishwanath. The FIR is Ex. PW6/A (OSR). The certificate under Section 65B Indian Evidence Act is Ex. PW6/B. Endorsement on rukka is Ex. PW6/C.
14. PW7 Raj Kumar Gupta is also one of the victims. He has deposed that in the year 2016, accused Vicky Sharma, had visited his village and he had met with him through complainant Meer Hasan. On assurance of Vicky Sharma to send him foreign country, he alongwith Chander Prakash Verma and Baleshwar Kushwaha had handed over their passport to him. He had demanded Rs. 80,000/ from each person. They had given Rs. 75000/ per person to accused Vicky Sharma at Chandni Chowk in December 2016 in cash. He did not give any receipt. He never contacted them thereafter. He got his passport released from Court. Copy of this passport is mark H. he was also called in Delhi for medical examination at some Page 10 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
hospital in Delhi.
15. PW8 Chander Prakash Verma is also one of the victims. He has deposed that in the year 2016, accused Vicky Sharma had visited the village of Meer Hasan and he had met with him through complainant Meer Hasan. On assurance of accused Vicky Sharma to send him in foreign country, he alongwith Baleshwar Kushwaha and Raj Kumar Gupta had handed over their passports. He had given Rs. 75000/ to him at Chandni Chowk. He was medically examined after giving the money alongwith other two persons. Accused never contacted them thereafter. He had received a phone call from PS Maurice Nagar and he was informed that his passport was recovered from the possession of accused Vicky Sharma. He got his passport released from Court. Copy of passport is mark J.
16. PW9 Sonu Prashad is also one of the victims. He has deposed that he had handed over his passport to accused Sumit Sharma in December 2016. He had demanded Rs. 90,000/ for sending him to Malaysia. He had handed over the amount to him in front of Gurudwara Chandni Chowk in two installments of Rs. 40,000/ and Rs. 50,000/. His medical examination was also conducted Page 11 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
in a hospital at Delhi. Thereafter, accused never contacted him. He had taken his passport on superdari. The copy of passport is Mark Y1.
17. PW10 Baleshwar Kushwaha is also one of the victims. He has deposed that he had handed over his passport to accused Sumit Sharma in December 2016 to send him to Malaysia. He had demanded Rs. 75,000/ for sending him to Malaysia. He had handed over the amount to accused in front of Gurudwara Chandni Chowk in two installments. He had given Rs. 40,000/ when he had come to Delhi alongwith his friends Chander Prakash, Raj Kumar and Baleshwar Kushwaha. His medical examination was also conducted in a hospital at Delhi. He had also paid Rs. 5000/ for medical examination. Thereafter, the accused never contacted him. He had taken his passport on superdari. The copy of passport is Mark Y2.
18. PW11 ASI Rajender Singh is the police official who participated in the investigation with the IO. He has deposed similar to IO PW15.
19. PW12 Ct. Vikas is the police official who participated in the investigation. He has deposed that on 08.03.2017, IO SI Vishwanath alongwith complainant Mir Hassan and other police staffs had reached at PS : Kotwali.
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The IO had handed over a tehrir for registration of FIR. He was directed by the IO to take the copy of FIR and original tehrir from the DO, whenever the FIR was registered and to deliver the same to him at Gate No. 1 of Jama Masjid. After registration of FIR, the Duty Officer had given him a copy of FIR and original tehrir. He took the document and reached at the gate no.1 of Jama Masjid, where he handed over the same to the IO.
20. PW13 ASI Yashpal Singh is the police official who had participated in the investigation. He has deposed similar to IO PW15.
21. PW14 Meer Hasan is the complainant. He has deposed that in the year 2016, on the date of "Note Bandi", he had met with accused Sumit Sharma @ Vicky Sharma at near Gurudwara, Chandni Chowk, Delhi. One person by the name of Sonu, his covillager also accompanied him on that day. Previously also, he had met with accused Sumit Sharma @ Vicky Sharma in Mumbai in August 2016 for 57 times at Pakiza Market, Shop No. 39, M. S. Ali Road, Mumbai 400008 where he had been running Tour & Travels by the name and style of ALJamil Tour & Travels from the aforesaid shop of Mumbai. Accused Sumit Sharma @ Vicky Sharma had asked him Page 13 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
about his passport in Mumbai and also assured him to send to Canada. He had requested the accused to send his 23 friends also to Canada. Then, accused Sumit Sharma @ Vicky Sharma had instructed him to meet at Gurudwara Chandni Chowk, Delhi for the aforesaid purpose and he alongwith his covillager had reached at the aforesaid place to meet. He and Sonu had handed over their passports and ₹2,00,000/ each (total ₹4,00,000/) to accused Sumit Sharma @ Vicky Sharma on the date of "Note Bandi" in the year 2016. Accused Sumit Sharma @ Vicky Sharma had assured them for affixation of Visa upon abovesaid passports for sending to Canada. Accused Sumit Sharma @ Vicky Sharma had demanded total ₹21,00,000/ for each person for sending to Canada. The accused had demanded ₹7,00,000/ for each person in advance and also stated that rest of the amount would be adjusted from their respective salaries. Accused Sumit Sharma called him at aforesaid Gurudwara of Chandni Chowk after about one and half month. They again reached at the aforesaid Gurudwara of Chandni Chowk and handed over 1.5 lacs each (total 3 lacs) to accused. The accused had already sent the copies of his Visa and also Visa of Sonu on Whatsapp. Accused Sumit Sharma @ Page 14 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
Vicky Sharma had also given the photocopies of both the aforesaid Visas. Accused had stated to call them after booking of the tickets. He had passed the mobile number of the accused to several other persons who were also willing to go to Canada. On 02.03.2017, accused Sumit Sharma had sent three tickets upon mail of him and the name of flight was Canada Airlines. The ticket was of 03.03.2017. In the morning of 02.03.2017, He alongwith Sonu & Markendey Singh had reached Delhi for going to Canada. They had met with accused Sumit Sharma @ Vicky Sharma at aforesaid Gurudwara of Chandni Chowk on 02.03.2017. Accused had informed that their tickets were cancelled due to some reason and accused assured that they would be called later on. He alongwith Sonu & Markendey Singh had reached at Canada Embassy and inquired about the status of their Visa. They got information that the Visas which were given by accused Sumit Sharma @ Vicky Sharma to them were forged documents and no records in this regard were available at Canada Embassy. Thereafter, he had given his complaint to police which is Ex.PW14/A (running into two pages). He had called accused Sumit Sharma @ Vicky Sharma to meet him at gate no. 1 of Jama Masjid. Police party had Page 15 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
also accompanied him at the aforesaid place and at his instance accused Sumit Sharma was arrested and personally searched by the IO vide memos Ex.PW11/A & Ex.PW11/C. Four passports were also recovered from his possession. IO had seized them vide memo Ex.PW11/B. All the victims were from his village and also from nearby villages. His passport alongwith passports of Sonu & Markendey Singh were already given by the accused to them on the day when they had reached at Canada Embassy. IO had recorded his supplementary statement in this regard. The witness brought his passport in Court and copy of passport is Ex.PW14/B (OSR). The forged Visa which was affixed on his passport is also annexed with passport and copy is Ex.PW14/C (OSR).
22. PW15 SI Vishwanath is the IO. He has deposed that he was posted at Special Staff North District on 07.03.2017. Complaint Ex. PW14/A was marked to him for necessary action. He prepared the rukka Ex. PW 15/A. Complainant was also present who handed over him three passports of himself, Sonu Choudhary and Markeney Singh. He had seized those passports vide memo Ex. PW 11/G. Rukka was handed over to Ct. Vikas for registration of FIR at PS Kotwali. Therafter, he alongwith the staff ie., Page 16 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
ASI Rajender, Ct. Vikas, ASI Yashpal and the complainant reached at gate no. 1 of Jama Masjid. Ct. Vikas also reached at the spot at about 11:00 p.m. with copy of FIR and original rukka and handed over to him. At the instance of complainant Meer Hasan accused Sumit Sharma was apprehended. Four Indian passports of different persons were found in his possession. On those passports, Visas of Malaysia were found pasted. He seized those passports vide memo Ex. PW11/B while mentioning the complete details of those passports. He arrested the accused vide memo Ex. PW11/A. His personal search was conducted vide memo Ex. PW11/C. He had made a disclosure statement which is Ex. PW11/H wherein he had disclosed about the involvement of coassociate namely Simranjeet Singh @ Bunty. On 08.03.2016 in the morning the accused you had led them to the house of accused Simranjeet @ Bunty at H. No. 43, Second Floor, Kishan Kunj near Pehalwan Dairy, Gali No. 1, Laxmi Nagar, Delhi. At his instance Simranjeet was apprehended. Accused Simranjeet Singh @ Bunty was interrogated. He had produced 7 Indian passports of different persons. The IO had seized those passports vide memo Ex. PW11/F while mentioning all the details. Accused Simranjeet @ Page 17 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
Bunty was arrested vide memo Ex. PW11/D. His personal search was conducted vide memo Ex. PW11/E. One day PC remand was taken. PW15 SI Vishwanath had issued notices under Section 160 Cr.P.C to the public persons whose passports were seized during investigation. Copies of those notices are Ex. PW15/B to Ex. PW15/B10. He had recorded the statement of the witnesses.
23. The witnesses were cross examined. The accused persons admitted certain documents under Section 294, Cr.P.C. They admitted the CDR in relation to mobile phone number 9654977605 which is Ex. A1 (colly 32 pages), the CDR in relation to mobile phone number 7506660009 which is Ex. A2 (colly 40 pages), the report of High Commission of Canada dated 07.04.2017 regarding forged Visas which is Ex.A3, the report of High Commission of Malaysia dated 06.04.2017 regarding forged Visas which is Ex.A4.
24. The prosecution evidence was closed. The accused were examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused persons denied all the incriminating evidence. They would state that they were falsely implicated in the present case. Accused Sumit Sharma would state that he had met with the complainant only Page 18 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
once at a Guest House in Mumbai. He had told Sonu and Markandey Singh that they should get their visas verified. He never visited the village of Meer Hassan. He denied all the other incriminating evidence. Complainant Meer Hassan had told him that he had four offices of his Tours and Travel business. Meer Hassan had once called him to meet him. He had gone to meet Meer Hassan at Nizamuddin at West Market. There he was falsely implicated. Accused Simranjeet Singh also denied all the incriminating evidence against him. He would state that he had no relation with Sumit Sharma. He was called at PS :
Maurice Nagar and police officials had demanded bribe from him. He could not pay the money therefore he was falsely implicated.
25. Accused Simranjeet Singh examined his wife Ms. Lata as DW1 in his defence. The witness has stated that on 07.03.2017 it was birthday of his brother Gaurav and he was called at her house. They celebrated birthday during night. On 08.03.2017 her husband had gone to LNJP for treatment as he was not feeling well. After sometime when she tried to contact him his mobile phone was found switched of. In the evening she received a phone call from PS and she was informed about the arrest Page 19 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
of the accused. A bribe of Rs.10 lacs was demanded. She could arrange only rupees one lacs. She paid the amount to one police official namely Vishwanath Paswan. Her husband was also sitting with the said police official. She was assured that her husband would be released very soon. However, he was not released.
26. Accused Simranjeet Singh also examined his brother Rajender Singh as DW2. He has also deposed similar to DW1.
27. Accused Simranjeet Singh himself entered in the witness box and examined himself as DW3. He would also state that he was present in the hospital when he received a call from Maurice Nagar Police station who asked him to reach at the PS for inquiry. Thereafter, he was beaten at the PS. A demand of Rs.10 lacs was made. He was threatened to implicate in a false case if the money was not paid. The police officials had called his wife and made the demand. His wife had given Rs. 1 lacs to IO Vishwanath. Police official had got signed some blank papers from him. He was never brought by the police officials at his house. Nothing was recovered from his residence. He did not have any relation with the Page 20 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
accused Sumit Sharma. He was falsely implicated by the police officials.
28. The witnesses were crossexamined by Ld. APP. The accused persons did not examine any other defence witness. Therefore, matter was fixed for final arguments.
29. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused persons has been established beyond reasonable doubts. It has been proved that accused Sumit Sharma had cheated the complainant and other victims and induced them to pay money to him under the pretext that he would provide them work Visa of different countries. He had taken money from various persons. He had got affixed forged visa stamps on various passports and used them as genuine. Accused Simranjeet Singh was also part of this conspiracy with accused Sumit Sharma. Various passports were also recovered from his house at his instance. Hence, the prosecution has proved all the ingredients of the offences for which the accused are charged with. Hence, it is prayed, the accused may be convicted.
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30. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution.
31. Ld. Counsel for accused Simranjeet Singh would argue that accused is innocent and that he was falsely implicated by the police officials as he had refused to pay bribe to them. It has been argued that there is no evidence against accused Simranjit to show his involvement in any crime. There is no public witness of the alleged recovery from the house of accused Simranjeet Singh. Non joining of a public witness at the time of alleged raid at the house of accused Simranjeet Singh create reasonable doubts on the case of the prosecution. There is no explanation as to why no public witness was joined at the time of raiding the house of accused Simranjeet Singh. Further there is no evidence on record to show that accused Simranjeet Singh was ever in contact with accused Sumit Sharma. The alleged CDRs are unable to prove anything against the accused. The Customer Application Form has not been brought on record to prove that the accused was using the mobile phone number as Page 22 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
alleged by the prosecution. Hence it is prayed that the accused maybe acquitted.
32. Learned Counsel for accused Sumit Shama would argue that accused is innocent and he has been falsely implicated at the instance of the complainant. It has been argued that no money was ever paid to him by the complainant or any other witness at any point of time. It was the complainant who had promised to send him to Malaysia. The accused had not forged any Visa. He did not have any knowledge about the Visa and passports. Nothing was recovered from his possession. The police official had planted upon him those Visa and passports. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
33. I have heard the rival submissions and carefully perused the material available on record.
34. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and Page 23 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
35. The accused persons have been charged for committing offences punishable under Section 120B IPC, Section 420 IPC, 467 IPC, 471 IPC and 474 IPC.
36. Section 467 IPC provides punishment for forging a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property, or valuable security. Section 471 IPC provides punishment for using as genuine a forged document or electronic record. Section 474 IPC provides punishment for having possession of document described in section 466 or 467, knowing it to be forged and intending to use it as genuine.
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Section 463 IPC defines forgery while Section 464 IPC defines making a false document. The Sections read as under : "463. Forgery--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
"464. Making a false document.--A person is said to make a false document or false electronic record First.--Who dishonestly or fraudulently "(a) makes, signs, seals or executes a document or part of a document;
"(b) makes or transmits any electronic record or part of any electronic record;
"(c) affixes any electronic signature on any electronic record;
"(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who without Page 25 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
"Explanation 1.--A man's signature of his own name may amount to forgery.
"Explanation 2.--The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
"Explanation 3.--For the purposes of this section, the expression "affixing electronic signature"
shall have the meaning assigned to it in clause
(d) of subsection (1) of section 2 of the Information Technology Act, 2000."
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37. Hon'ble Supreme Court of India in Sheila Sebastian vs R. Jawaharaj, Crl. Appeal nos. 359 360/2010, decided on 11 May, 2018, has discussed the law relating to forgery. It has been held as under : "19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
"20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the Page 27 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
"21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that "a person is said to have made a `false document', if "(i) he made or executed a document claiming to be someone else or authorised by someone else; or "(ii) he altered or tampered a document; or "(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
"22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
"23. The Court in Md. Ibrahim (supra) observed that:Page 28 of 52 MM08(C)/THC/01.02.2019
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"There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
"24. In Mir Nagvi Askari vs. Central Bureau of Page 29 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
Investigation, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.
"The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case.
"The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.Page 30 of 52 MM08(C)/THC/01.02.2019
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"25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
"26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
"27. A reasonable doubt has already been Page 31 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The State of Maharashtra, (2018) 3 SCC 66 wherein 'reasonable doubt' has been enunciated by this Court as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis." In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability." (Emphasis supplied)
38. Section 420, IPC provides punishment for cheating and dishonestly inducing delivery of property. In order to constitute offence under Section 420 IPC, the prosecution has to establish that the accused had deceived Page 32 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
the complainant dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. Thus, the essential ingredients of the offence is that there must be dishonest intention on the part of the accused at the time of making the representation to the complainant / victims on the basis which the complainant / victims part with his / their property. Intention must be dishonest and there must also be mens rea.
39. Section 120 B IPC provides punishment for offence of criminal conspiracy. Section 120A IPC defines criminal conspiracy. For the purpose of proving criminal conspiracy, the prosecution must establish the following:
1. that the accused agreed to do or caused to be done an act;
2. that such act was illegal or was to be done by illegal means; and
3. that some overt act was done by one of the accused in pursuance of the agreement.
40. The Hon'ble Apex Court in Baliya Vs. State of Madhya Pradesh, 2012(9) SCC 696 has held that the offence of criminal conspiracy has its foundation in an Page 33 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.
41. Similarly the Hon'ble Apex Court, again in Central Bureau of Investigation, Hyderabad Vs K. Narayana Rao, 2012(9) SCC 512 has held that the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the Page 34 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
42. First, I shall take the case against accused Simranjeet Singh. In the present case, it has been alleged that accused Simranjeet Singh had conspired with accused Sumit Sharma and forged various passports. The accused has been charged for the offence punishable under Section Page 35 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
120B IPC, 420/120B IPC, 467/120B IPC and Section 471/467 IPC.
43. Admittedly, there is no material on court record to prove beyond reasonable doubts that any of the accused had forged the Visa stamp/s on the passports which were allegedly recovered from their possession.
44. The prosecution has relied upon the records relating to call details of 2 mobile phones which are Ex.A1 (colly 32 pages) and Ex.A2 (colly 40 pages). However, as submitted by Ld. defence counsel, there is no material on record to show that any of the accused had been using the said mobile phones. The 'Customer Application Forms' of those mobile phone numbers have not been brought on record to prove as to who was the registered user of those mobile phone numbers. Merely by showing that there were some calls/communication between these two numbers is not sufficient to prove beyond reasonable doubts that the accused persons had been communicating with each other in relation to the conspiracy as alleged. Accused Simranjeet Singh himself has entered into the witness box and deposed on oath that he did not know accused Sumit Sharma. He has also deposed on oath that he was never Page 36 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
taken to his home by the police official and that nothing was recovered from his possession or at his instance.
45. The prosecution has alleged that various passports had been recovered from the house of accused Simranjeet Singh at his instance which is sufficient to prove beyond reasonable doubts that accused Simranjeet Singh was part of the conspiracy.
46. I have considered the submissions. Perusal of the record would show that the alleged recovery was shown to be made from the house of accused Simranjeet Singh. However no public person is shown to be part of the raiding party. No public witness to the recovery has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from the house of the accused. The police officials who were part of the team, in their crossexamination, have admitted that the place where the recovery was effected was surrounded by residential area and shops. Thus, the place of recovery was clearly located in an area where public persons would be readily available. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery. There is nothing on record to show that the IO had served any Page 37 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Non availability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under: "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness Page 38 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
47. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution. Alleged recovery of passports at the instance of accused Simranjeet Singh has come under the clouds of reasonable doubts. Alleged disclosure statements of the accused persons do not have any relevancy in view of the settled legal principles. Accused Simranjeet Singh himself has entered into witness box and deposed on oath that nothing was recovered from his possession or at his instance. He has also deposed that he was never taken to his home after he was called at the Police Station and implicated in the present case. He has also examined his family members to prove that nothing was recovered from his house as he was never taken to his house. No doubt, there is no material on record to substantiate the allegation of bribery, the testimonies of DW1, DW2 amd DW3 are able to show, on the preponderance of Page 39 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
probabilities that the alleged recovery has been planted upon the accused. He is entitled to benefit of reasonable doubts.
48. Now I come to the case against accused Sumit Sharma. It has been alleged against accused Sumit Sharma that he had entered into a criminal conspiracy to cheat various persons. He had induced the complainant and various other persons to pay money to him under the pretext that he would send them abroad for work. It is also alleged that the accused had affixed forged visa stamps of Canada and Malyasia.
49. Complainant Meer Hasan has been examined as PW14 by the prosecution in support of the case. The complainant PW 14 Mir Hasan has deposed, inter alia, that in the year 2016 he had met with accused Sumit Sharma on the day of notebandi at Gurdwara Chandni Chowk Delhi. His villager sonu was also with him. He had requested accused Sumit Sharma to send his 23 friends also to Canada. He has also deposed that he and his friend sonu had handed over their passports and Rs.4 lacs to accused Sumit Sharma on the said day. On 02.03.2017, he along with Sonu and Markandey Singh had met with accused Sumit Sharma who told that their tickets were Page 40 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
cancelled due to some reason. Thereafter, they had gone to Canada embassy where they were informed that visa stamp on their passports was forged.
50. Markandey Singh has been examined as PW1. Sonu has been examined as PW2. However these witnesses have denied making any payment to accused Sumit Sharma. They also denied handing over their passports to the accused. They have deposed that they had sent their passports to one agent in Delhi through courier. They had collected the passports from the person and there was visa of Canada affixed on the same. They had shown the passports to accused Sumit Sharma who had told that the visa were fake.
51. The testimonies of these two witnesses are contradictory to the testimony of Mir Hasan. Testimony of PW1 and PW2 gives impression that they had not handed over any money to accused Sumit Sharma and that they had not given their passports to him. It was accused Sumit Sharma who had informed them that the visa stamps on their passports were forged. Further, the complainant himself had been working as a tour and travel agent. It is highly impossible that he would make such a huge Page 41 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
payment, to a person who was merely known to him, without any documentation.
52. These material contradictions creates reasonable doubts on the allegation of the prosecution that accused had received money from the complainant, Sonu and Markandey Singh. I do not find any reason to believe the testimony of complainant Meer Hasan only and to discard the testimonies of the other two witnesses Sonu and Markandey Singh. It is possible, as argued by Ld. Defence Counsel, that there was some dispute between accused Sumit Sharma and complainant Mir Hasan due to which the complainant had made false allegations against the accused. Admittedly, the passports of Meer Hasan, Sonu and Markandey Singh were not recovered from the possession of the accused. The material on record is sufficient to create reasonable doubts on the testimony of the complainant to the effect that accused Sumit Sharma had taken money from him and handed over passports with forged visa stamps.
53. There are testimonies of other victims on record. I shall discuss them one by one.Page 42 of 52 MM08(C)/THC/01.02.2019
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54. PW3 Dhan Ram and PW4 Rupesh Kumar are stated to be friends. Both the witnesses have deposed that accused Sumit Sharma had told them that he would take Rs.80,000/ from each of them to send them to Malayasia. They had paid Rs.5000/ each to him for the said purpose. They were also medically examined at some hospital. They had also handed over their passports to him. However, later on they obtained their passports from the police.
55. The witnesses were cross examined by the defence Counsel. However, nothing contradictory had come in their cross examination to doubt their testimonies. Thus, testimonies of PW3 and PW4 have proved beyond reasonable doubts that accused Sumit Sharma had dishonestly deceived them to deliver Rs.5000/ each to him under the pretext that he would send them to Malayasia. It has also been proved by the witnesses that accused Sumit Sharma had taken their passports under the said pretext.
56. PW5 Srikant is also examined as a victim. However, his testimony is not able to prove beyond reasonable doubts that accused Sumit Sharma had received any money from him. At first in his examination he had stated that he had paid Rs.82,000/ to Meer Hasan Page 43 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
and handed over his passport to him. During his cross examinations by Ld. APP when the leading the question was put to him, he admitted that he paid Rs.75,000/ to accused Sumit Sharma at Gurudwara at Delhi. Later on, during his crossexamination by Ld. Defence counsel, he said that he paid the amount in three instalments. Rs.25000/ were paid to Markandey Singh, Rs. 17,000/ were paid to Singhasan Singh, and Rs.39,000/ were paid to Sonu Singh. Thus, admittedly, the witness never paid money directly to accused Sumit Sharma. There is nothing on record to prove beyond reasonable doubts that abovementioned three persons had received the money at the instance of accused Sumit Sharma.
57. PW7 Raj Kumar Gupta, PW8 Chanderprakash Verma and PW10 Baleshwar Kushwaha are three friends who were allegedly cheated by accused Sumit Sharma. They have deposed that they had handed over their passports to accused Sumit Sharma as he had assured to send them to abroad. They had also paid Rs.75,000/ each to accused Sumit Sharma for the said purpose. However, the accused never contacted them thereafter. Similar is the testimony of PW9 Sonu Prashad. He had paid Rs. 90,000/ in two installments to the accused for the same purpose.Page 44 of 52 MM08(C)/THC/01.02.2019
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58. Nothing contradictory has come in cross examinations of these four witnesses to doubt their testimonies. Thus, testimonies of PW7, PW8, PW9 and PW10 have proved beyond reasonable doubts that accused Sumit Sharma had dishonestly deceived them to deliver money to him under the pretext that he would send them to abroad. It has also been proved by them beyond reasonable doubts that the accused Sumit Sharma had taken their passports under the said pretext.
59. The prosecution has alleged that at the time of apprehension of accused Sumit Sharma four passports were recovered from his possession which were seized vide memo Ex. PW11/B. These passports are shown to be recovered from the possession of the accused in the presence of public witness complainant Meer Hassan. The said passports belong to Raj Kumar Gupta, Srikant, Chander Prakash Verma and Baleshwar Kushwaha. As discussed hereinabove the witnesses have categorically stated in their examination that they had handed over their passports to accused Sumit Sharma. There is no reason on Court record to disbelive the testimonies of the witnesses to this effect. There is also no reason to disbelive the recovery of these passports from the Page 45 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
possession of accused Sumit Sharma as the recovery is shown to be made in presence of a public witness.
60. During his examination under Section 313 Cr.P.C., the accused denied recovery of any such passports from his possession. He also denied receiving any money from any of the witness. He has stated that he was falsely implicated and that he was apprehended at Nizamuddin West Market. However, the accused has not led any evidence in support of his averments. It is settled position of law that statements made during examination under Section 313 Cr. PC are not evidence. They have not been made on oath. They have not been tested on the touchstone of crossexamination. Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has Page 46 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
61. In the present case also, the statements made by accused Sumit Sharma during his examination can not be presumed to be true. The law is settled that testimony of an eyewitness and an injured should be believed unless there is specific reason on record to disbelieve him. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
62. In the present case also, the testimonies of various prosecution witnesses have proved beyond Page 47 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
reasonable doubts that accused Sumit Sharma had taken money from them and their passports with dishonest intention to cheat them. Passports of Raj Kumar Gupta, Srikant, Chander Prakash Verma and Baleswar Kushwaha are proved to be recovered from his possession. It has also been proved beyond reasonable doubts that there was visa stamp of Malaysia on these passports. The report of High Commission of Malaysia dated 06.04.2017 is on record which is Ex.A4. In the said report, it has been mentioned that the Malaysian Visa on those four passports were not genuine and were not issued by the High Commission of Malaysia, New Delhi.
63. Be that as it may, even if it is proved by the prosecution that the accused was in possession of above mentioned passports with forged visa stamps, it can not be said that the accused had forged those stamps on the passports. It is proved beyond reasonable doubts that the accused was in possession of those forged documents knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine.
64. However, a visa stamp is not a valuable security or any other documents as mentioned in Section 467 IPC. Section 30 IPC defines valuable security as a Page 48 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
document which is, purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledes that he lies under legal disabillity, or has not a certain legal right. A visa stamp is merely permisive in nature permitting a person to enter the territory for which it was issued. Such a stamp can not be called a valuable security as defined under Section 30 IPC. Further, the document also does not fall within the category as mentioned under Section 466 IPC. In these circumstances, the ingredients of offence punishable under Section 474 IPC are not made out.
65. Accused Sumit Sharma had not used those passports with forged visa stamp as genuine as defined under Section 471 IPC. To convict a person for an offence punishable under Section 471 IPC, the prosecution must proved beyond reasonable doubts that the accused had used a forged document as genuine fraudulently or dishonestly. In the present case, however, those passports with forged visa stamps are shown to be recovered from the possession of accused Sumit Sharma. Those passports were never handed over to their original holders. Therefore, it can not be said that the accused had used Page 49 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
forged visa stamps as genuine fraudulently or dishonestly. Therefore, ingredients of offence punishable under Section 471 IPC are also not proved against accused Sumit Sharma beyond reasonable doubts. There is no evidence, as discussed hereinabove, to prove beyond reasonable doubts that accused Sumit Sharma himself had forged those visa stamps. Therefore, accused Sumit Sharma can also not be convicted for an offence punishable under Section 465 IPC.
66. In the light of the discussion hereinabove I hold that the prosecution has failed to prove any charge against accused Simranjeet Singh beyond reasonable doubts. He is entitled to the benefit of reasonable doubts. He is therefore acquitted.
67. The prosecution has also failed to prove beyond reasonable doubts that accused Sumit Sharma had entered into any criminal conspiracy with Simranjeet Singh or any other person. The prosecution has also failed to prove beyond reasonable doubts that accused Sumit Sharma had forged the Visa stamps on the passports. Visa stamps are not valuable security. Thus, the charge of offence punishable under Section 120 B, 467, and Section 474 IPC is not proved against him beyond reasonable Page 50 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
doubts. He is entiled to the benefit of reasonable doubts. He is therefore acquitted of the offence punishable under Section 120B IPC, Section 467 IPC, and Section 474 IPC.
68. However, the prosecution has proved beyond reasonable doubts that accused Sumit Sharma had dishonestly induced PW3 Dhan Ram, PW4 Rupesh Kumar, PW7 Raj Kumar Gupta, PW8 Chanderprakash Verma, PW9 Sonu Prashad and PW10 Baleshwar Kushwaha that he would send them abroad and under such inducement received money from them as stated by them in their testimonies. Thus, it is proved that accused Sumit Sharma had cheated the abovementioned persons and deceived them thereby dishonestly inducing them to deliver money to him. Thus, the prosecution has proved all the ingredients of offence punishable under Section 420 IPC.
69. In the light of the discussions hereinabove, I hold that accused Sumit Sharma is found guilty and he is accordingly convicted for the offences punishable under Section 420 IPC.
70. Accused Simranjeet Singh has already furnished bonds under Section 437 A Cr. PC with one surety alongwith photographs and ID Proof. The bonds Page 51 of 52 MM08(C)/THC/01.02.2019 FIR No.30 /2017, PS :Kotwali State Vs Sumit Sharma & Anr.
come in force as per law.
71. Convict Sumit Sharma be heard on sentence separately. Copy be give dasti.
Pronounced in the open Court on (Dinesh Kumar) this 01st day of February 2019. MM08 (Central) Tis Hazari Courts, Delhi.
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