IN THE COURT OF SH. [ENTITY] : ACMM-01 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI [ENTITY] Vs : [ENTITY] & Anr. FIR No. : 34/1997 U/s : 407/468/471 [ACT] PS : Nabi Karim (Crime) Unique Identification No. 02401R0014442005 Date of Institution: 16.07.1998 Date of Judgment reserved on: 18.05.2015 Date of Judgment: 27.05.2015 Brief details of the case A. Sl. No. of the case 000518/P B. Offence complained of or proved U/s 407/471/34 [ACT] C. Date of Offence Between 10.01.97 to 20.01.97 D. Name of the complainant Sh. [ENTITY] Regional Manager Ritu Road Lines Pvt. Ltd., 7530, Galaxy Apartment, Tel Mil Gali, Ram Nagar, Paharganj, New Delhi E. Name of the accused (1) [ENTITY] (PO) S/o Sh. Bhale Ram, R/o Vill. Khatkar, PS Uchana, Distt. Jind (Haryana) (2) [ENTITY] S/o Sh. Ranjit Singh, R/o Village Bamnauli, PS Bahadurgarh Sadar, Distt. Rohtak (Haryana) F. Plea of the accused Pleaded not guilty G. Final order Convicted under [SECTION] [ACT] H. Date of Order 27.05.2015 FIR No.34/1997 [ENTITY] Vs [ENTITY] & Anr. Page 1 of 18 Judgment On the accusation of acting in furtherance of their common intention and committing criminal breach of trust in respect of a consignment containing 360 bags of PVC which were entrusted to them as carrier, accused [ENTITY] (driver) and [ENTITY] (owner of the truck) were sent up to face trial for committing offences punishable under [SECTION] [ACT] read with [SECTION] [ACT]. Apart from this, it was also alleged that both the accused fraudulently and dishonestly prepared forged documents of truck bearing registration No.HR-12-1224 on which the consignment was loaded and used those forged documents as genuine. Charges under [SECTION] [ACT] read with [SECTION] [ACT] were also pressed against them. Brief facts as unfolded during the trial 2. The case of prosecution as revealed from the charge-sheet is that PW-1 [ENTITY] (hereinafter referred to as ' complainant' ) was the Regional Manager of Ritu Roadlines Pvt. Ltd. (hereinafter referred to as ' company' ) having its office at 7350, Tel Mil Marg, Ram Nagar, Paharganj, New Delhi. The branch office of the company at Suraj (Gujrat) hired a truck bearing registration No.HR-12-1224 from Hissar-Bhiwani Roadlines, Kadodara for transporting a consignment of 360 bags of PVC weighing around 9 metric tonnes from Reliance Industries Ltd., Hazira to its office at Paharganj, New Delhi. On 26.12.1996, Sh. [ENTITY] (PW-15), Loading Clerk of the company, accompanied the driver (accused [ENTITY]) of the truck to the office of Reliance Industries Ltd., Hazira from where the consignment was loaded and the truck was dispatched. When the truck did not reach its destination on the scheduled time, the complainant got suspicious and lodged a report with the police. On the said complaint, present FIR bearing No.34/1997 under [SECTION] [ENTITY] Vs [ENTITY] & Anr. Page 2 of 18 407/468/471 [ACT] was registered at Police Station Nabi Karim and investigation was assigned to SI [ENTITY] (PW-11) who was posted at Anti Robbery Cell, Crime Branch. Documents vide which the consignment was loading on the truck including the consignment note and invoices were seized. Efforts were made to trace the stolen truck and misappropriated consignment but no clue was found. 3. The prosecution' s case proceeds further that on 20.01.1997, SI [ENTITY] received information from [ENTITY] that the stolen truck can be found parked at Mahipal Pur Road, near Vasant Kunj Apartments. After reducing this information in writing vide DD No.6, SI [ENTITY] constituted a team and proceeded towards pre-disclosed spot where [ENTITY] met the police officials and pointed towards a parked truck. In the meantime, [ENTITY] came out of a nearby sweet shop and police officials arrested him while he was about to start his vehicle. During interrogation, [ENTITY] made disclosure about his involvement and took the police party to the house of [ENTITY] located at Bamnauli Village, PS Bahadurgarh, Distt. Rohtak (Haryana) from where 360 bags of misappropriated consignment were recovered. The recovered bags were deposited at the Malkhana of Police Station Nabi Karim. One bag was retained as sample while the remaining bags were released on superdari. [ENTITY]ment of witnesses were recorded and necessary documentation was done. It was revealed during investigation that the actual registration number of the truck was DNG-0844 but in order to deceive the complainant, both the accused changed the registration number to HR-12-1224 by preparing forged documents and super-embossing a different chassis number. Investigation qua the aspect of forgery and preparation of forged documents was carried out and after conclusion of investigation, charge-sheet was put to the court. FIR No.34/1997 [ENTITY] Vs [ENTITY] & Anr. Page 3 of 18 4. Copies of the charge-sheet were supplied to both the accused and charges under [SECTION] [ACT] read with [SECTION] [ACT] were framed against them to which they pleaded not guilty and claimed trial. [ENTITY] remained absent during trial and vide order dated 24.04.2009, he was declared a Proclaimed Offender. Trial proceeded and concluded qua accused [ENTITY] who was convicted under [SECTION] [ACT] by this court itself but the matter was remanded back by the appellate court of Sh. [ENTITY], Ld. ASJ (Central), Delhi with directions to summon PW-1 [ENTITY] and afford an opportunity to the accused to cross examine this witness. Directions were given by the appellate court to decide the matter afresh in the light of cross examination done by the accused. Witnesses examined 5. Fifteen prosecution witnesses were examined. Witnesses from the company PW-1 [ENTITY] (Complainant/Regional Manager, Ritu Road Lines Pvt. Ltd.) mentioned about the entrustment part. He stated that the truck containing 360 bags of PVC weighing around 9 metric tonnes was entrusted to [ENTITY]. He mentioned that documents of the truck depicted that [ENTITY] was the owner while [ENTITY] was the driver of the truck. He mentioned about lodging complaint with the police. Pursuant to the orders of the appellate court, the witness was recalled for cross examination and to some extent, he twisted his earlier statement mentioning this time that he did not accompany the police party to the house of accused [ENTITY]. PW-4 [ENTITY] (Director, Ritu Road Lines Pvt. Ltd.) supported the version of [ENTITY] by deposing on same lines. FIR No.34/1997 [ENTITY] Vs [ENTITY] & Anr. Page 4 of 18 PW-16 [ENTITY] (Employee of Ritu Road Lines Pvt. Ltd.) supported the prosecution' s case mentioning that consignment was entrusted to [ENTITY]. He mentioned that he accompanied [ENTITY] to the factory of Reliance Industries Ltd. at Hazira from where 360 bags of PVC were loaded on the truck and at that time, an associate of this accused also accompanied them. Witnesses of forged documents PW-3 [ENTITY] (Licensing Clerk, SDM Office, Rohtak) mentioned that according to the records of Transport Authority, a Padmini Car was awarded the registration number HR-12-1224. PW-5 Dr. [ENTITY] (Principal Scientific Officer, CFSL) mentioned that he examined the chassis number of the truck bearing registration number HR-12-1224 and found that it had been tampered. The report submitted by him is Ex.PW-5/A. PW-7 [ENTITY] (Director-Incharge - Retd., FSL) mentioned that the handwriting of [ENTITY] was found on the forged documents. PW-10 [ENTITY] (Assistant, [ENTITY] Transport Department, Chandigarh) deposed that the permit of truck was forged. PW-15 [ENTITY] (MLO, Headquarters, Delhi) brought the record of truck bearing Registration No. DNG-0844 to demonstrate that the said vehicle was purchased by [ENTITY]. He stated that the registration number was allotted by the transport authority of Rajpur Road. Police Witnesses PW-2 Ct. [ENTITY] (Witness of arrest of [ENTITY]) stated that after arrest, [ENTITY] disclosed the actual registration number of his truck FIR No.34/1997 [ENTITY] Vs [ENTITY] & Anr. Page 5 of 18 as DNG-0844. He stated that the forged documents of the truck were seized in his presence. PW-6 [ENTITY] (Duty Officer) mentioned about registration of FIR. Copy of FIR is Ex.PW-6/A. PW-8 [ENTITY] (Witness of arrest) stated that [ENTITY] surrendered at Police Station Crime Branch, R.K.Puram and he was arrested by IO/SI [ENTITY] vide arrest memo Ex.PW-8/A. PW-14 [ENTITY] (Witness to the seizure memo of forged documents) stated that the documents were seized in his presence. PW-11 Insp. [ENTITY] (Investigating Officer) justified the investigation carried out by him. He gave a detailed account of the recovery made from the house of [ENTITY]. He mentioned that it was revealed during investigation that the ration card at the address of House No.56, [ENTITY] has been issued in the name of [ENTITY]. PW-9 ASI (Retd.) [ENTITY] (Recovery witness) mentioned that on 23.01.1997
, [ENTITY] took the police party to H.No.56 at Village Bamnauli from where 360 misappropriated bags were recovered and at that time, complainant was also accompanying the police party. He mentioned that IO/SI [ENTITY] requested public persons to join recovery proceedings but no one agreed. Witnesses examined to establish the address of [ENTITY] PW-12 [ENTITY] (Retd. District Food Supply Officer) failed to produce the original record of ration card and mentioned that the record has been weeded out.
PW-13 [ENTITY] (Public witness to establish the address of [ENTITY]) did not support the prosecution' s case. She stated that although [ENTITY] belongs to her native village but she does not know the house number where he used to reside.
6. [ENTITY]ment of [ENTITY] was recorded under [SECTION] [ACT] wherein he denied all the incriminating evidence. He stated that the consignment was not entrusted to him. He admitted that he was the owner of truck bearing registration No.DNG-0844 and [ENTITY] was the driver of his truck. It appears from his statement that he tried to shift the entire blame on [ENTITY] about the forging of documents. He admitted that he was residing at House No.56, Village Bamnauli but denied recovery of PVC bags from his house. No defence witness was examined.
Arguments
7. I have heard the rival arguments advanced at bar by Ld. APP for [ENTITY] and Ld. Defence Counsel.
8. Ld APP has argued that prosecution' s case has been established to the hilt. He contended that there is overwhelming evidence on record to establish that both the accused committed criminal breach of trust in respect of consignment which was entrusted to them. He mentioned that testimony of witnesses from the concerned transport authorities has established that both the accused acted in further of their common intention and prepared forged documents of the truck. He stated that [ENTITY] has made a hopeless attempt to save himself by pleading ignorance about the entire transaction. He mentioned that recovery stands duly proved as the testimony of all the recovery witnesses is coherent.
9. On the other hand, Ld defence counsel argued that there are material contradictions and discrepancies in the testimony of recovery witnesses. He contended that the testimony of complainant is not reliable as it contains various contradictions. It has been argued by him that there is no evidence to establish that consignment was entrusted to [ENTITY] or that [ENTITY] was acting in connivance with this accused. He stated that purported recovery is doubtful as no independent witness was joined. Counsel has argued that testimony of police officials is not reliable. He contended that the material on record is not sufficient to prove charges against the [ENTITY] and he should be acquitted.
10. I have perused the record in the light of respective arguments.
Brief reasons for the decision
11. Charges under [SECTION] [ACT] read with [SECTION] [ACT] were framed against accused [ENTITY]. In order to establish charge under [SECTION] [ACT], the prosecution has to establish that accused was entrusted with property as carrier and while being so entrusted, he committed criminal breach of trust in respect of that property. For establishing the criminal breach of trust, it is sacrosanct to demonstrate that accused was entrusted with the property or any dominion over the property and he dishonestly misappropriated or converted to his own use that property in violation of any express or implied legal contract. On the other hand, for establishing a charge under [SECTION] [ACT], prosecution has to establish that accused fraudulently or dishonestly used a forged document as genuine knowing or having reasons to believe that the same is forged. Now, let us peruse the record to see whether these charges have been established.
12. In order to establish the entrustment part, prosecution relied upon the testimony of witnesses from the company. Three witnesses from the company were examined i.e. PW-1 [ENTITY], PW-4 [ENTITY] and PW-16 [ENTITY]. Perusal of their testimony shows that none of them mentioned that the consignment was entrusted to [ENTITY]. [ENTITY] (PW-1) stated that a truck bearing No.HR-12-1224 was hired by his office for transporting consignment from the factor of Reliance Industries Ltd. at Hazira to the office of company at Paharganj, New Delhi. He mentioned about various documents which were prepared for sending the consignment including the consignment note and invoices. He stated that [ENTITY] was the driver of the truck on which the consignment was loaded and as per the challan dated 26.12.1996 (Ex.PW-1/B), one [ENTITY] was the owner of the said truck. He did not mention the name of [ENTITY]. Similarly, [ENTITY] (PW-4) also remained silent on this aspect. The testimony of [ENTITY] (PW-16) was very crucial to establish the allegation that consignment was entrusted to both the accused. He was employee of the company who accompanied the driver to the factory of Reliance Industries Ltd. at Hazira. He stated that on the instructions of Manager of the company, he accompanied the driver [ENTITY] to the factory of Reliance Industries Ltd. and the consignment was dispatched from the factory. He stated that at that time, another person was accompanying [ENTITY] but mentioned in his cross examination that he can not say whether [ENTITY] was the said person.
13. Thus, the deposition of the witnesses from the company does not, in any manner, establish that the consignment was entrusted to the [ENTITY]. It may be that [ENTITY] was acting under the instructions of [ENTITY] as he was the owner of the truck but there is no concrete evidence to presume this fact which has not been proved. In order to bring home charge with the aid of [SECTION] of [ACT] pertaining to joint liability, it is essential to establish the participation of accused in the alleged offence. Evidence shows that although, the misappropriated consignment was subsequently recovered from the house of [ENTITY] but this circumstance, in itself, is not sufficient to arrive at a finding that [ENTITY] participated in commission of offence with his driver for committing criminal breach of trust in respect of consignment which was entrusted by the company. The circumstances proved by the evidence raise a very strong suspicion about the involvement of accused but the evidence falls shot of establishing his participation in commission of offence. Thus, charge under [SECTION] [ACT] has not been proved.
14. The charge under [SECTION] [ACT] qua [ENTITY] has also not been established. The evidence has established that forged documents of the truck were recovered from the possession of [ENTITY] who has been declared ' proclaimed offender' . Ct. [ENTITY] (PW-2) mentioned that the forged documents recovered from the possession of [ENTITY] were seized by the Investigating Officer. The deposition of [ENTITY] (PW-3), Licensing Clerk from the transport authority goes on to show that a Padmini Car was registered in the authority under the registration number of HR-12-1224 which was depicted in the forged documents as the registration number of the truck. Dr. [ENTITY] (PW-5), Principal Scientific Officer, examined the chassis number of the truck and gave a finding in his report (Ex.PW-5/A) that the numbers have been tampered. Sh. [ENTITY] (PW-7), Director, FSL mentioned that handwriting of [ENTITY] was found on the forged documents of truck while [ENTITY] (PW-10), Assistant from [ENTITY] Transport Department mentioned that permit of the truck was forged. [ENTITY] (PW-15), MLO (Hq.), Delhi deposed that the truck bearing registration No.DNG-0844 was purchased by [ENTITY]. In fact, the accused himself admitted in his statement recorded under [SECTION] [ACT] that he was owner of the truck. However, this evidence does not demonstrate that [ENTITY] either forged the documents of the truck or knowingly used the forged documents as genuine. The evidence, at best, depicts that the driver [ENTITY] might have prepared those documents and used forged documents as genuine but nothing beyond that. Thus, charge under [SECTION] [ACT] has not been established qua [ENTITY]. However, there is sufficient material on record to establish that [ENTITY] committed an offence punishable under [SECTION] [ACT].
15. Prosecution has been successful in establishing recovery of the misappropriated consignment from the house of [ENTITY]. The testimony of recovery witnesses establish that misappropriated bags of PVC were recovered from the house of [ENTITY]. Three recovery witnesses were examined i.e. [ENTITY] (PW-1), ASI [ENTITY] (PW-9) and Insp. [ENTITY] (PW-11). These recovery witnesses have deposed in sync mentioning that misappropriated bags were recovered from the house of [ENTITY]. Complainant [ENTITY] (PW-1) mentioned in his examination-in-chief that on 23.01.1997, he joined the police party and [ENTITY] took them to House No.56, Village Bamlauli, Distt. Rohtak (Haryana) from where 360 misappropriated bags containing PVC were recovered. He stated that the recovered bags were seized vide seizure memo (Ex.PW-1/D) and identified his signatures on the seizure memo. He mentioned that a sample bag was retained while the remaining bags were deposited in the Malkhana. He identified the sample bag which was produced from the Malkhana as Ex.P1. Pursuant to the directions issued by the Appellate Court of Sh [ENTITY], Ld ASJ Central, Delhi, the witness was recalled for cross examination but this time, he tried to twist his earlier statement and mentioned that he was informed by the police that the stolen goods have been recovered and he was only called to identify those goods. He showed ignorance about the place of recovery mentioning that it was the police officials who informed him that misappropriated PVC bags have been recovered from the house of [ENTITY]. The witness seems to have suggested that he does not recollect the details of the alleged recovery because of the time gap. He was declared hostile and was cross examined by the Ld. APP. He admitted during his cross examination that he accompanied the police to the house of accused at village Bamloni, District Rohtak but stated that he does not recollect whether accused [ENTITY] also accompanied the police party. He also admitted the recovery stating that 360 PVC bags were recovered from the house. He stated that he identified the recovered goods after comparing them with the consignment note (Ex.PW1/A). He mentioned that he also identified the case property on the basis of marka (mark) on the consignment bill. On perusing the entire testimony of this witness, I have reached a conclusion that in totality, he has supported the prosecution' s case. Although, he was declared hostile by the prosecution but his testimony cannot be discarded on this ground. There is no impediment in relying upon the testimony of a hostile witness. Even the evidence of a hostile witness can be accepted and relied on provided there is material to corroborate his testimony. It is a settled proposition of law that merely because a witness has been declared hostile, it does not make him unreliable. Reference in this regard can be made to the judgment in Ravindra Kumar Dev Vs. [ENTITY] of Orissa 1997 AIR SC 170. The fact that the prosecution has got declared its own witness as hostile does not completely efface his evidence. The evidence remains admissible.
16. Record shows that the testimony of [ENTITY] (PW-1) finds support and corroboration from the deposition of other recovery witnesses. ASI [ENTITY] (PW-9) has also mentioned that recovery was made from the house bearing No.56, Vill. Bamlauni, Rohtak (Haryana). Similarly, Insp. [ENTITY] (PW-11) has also given similar account of recovery mentioning that 360 bags of PVC were recovered from the house of [ENTITY]. The police witnesses have categorically deposed about the presence of complainant mentioning that he was accompanying the police party. Insp. [ENTITY] mentioned that complainant identified the case property at the house of accused and the recovered bags were seized. The testimony of these recovery witnesses leaves no scope for doubt that the bags which were loaded on the truck and misappropriated by [ENTITY] were recovered from the house of [ENTITY].
17. Ld. Defence Counsel has assailed the testimony of recovery witnesses mentioning that their testimony is not reliable. He argued that there are contradictions in the testimony of recovery witnesses. He pointed out that ASI [ENTITY] stated in his cross examination that no person was found present at the house when the police party reached there while Insp. [ENTITY] mentioned that ' pardanashi' women were present at the house when the police party reached at the house. He stated that [ENTITY] has also stated in his cross examination that no one was present at the house when the police party reached there. Ld Counsel has placed reliance upon the judgment in [ENTITY] Mangal Singh Vs. [ENTITY] AIR 1961 Punjab 30 (V 48 C
12) and argued that accused cannot be convicted for the recovery made from his house during his absence. I have gone through the entire record as well as the judgment on which reliance has been placed. I am not impressed with the arguments advanced by the Defence Counsel. In [ENTITY]' s case (supra), the Court acquitted the accused on the ground that he cannot be held accountable for the stolen articles recovered from a box kept at his house when the keys of that box were produced by his wife. It was held in this case that in these circumstances, it cannot be taken that wife was holding the goods on account of her husband and therefore, the accused was acquitted. The present case is on an altogether different footing. It is not that the stolen articles were hidden at some place in the house of accused. The stolen property consisted of 360 bags of PVC. It is not possible to hide these articles in the house of accused and it cannot be taken that he had no knowledge about the stolen articles kept at his house. Such large number of bags would be apparently visible to the occupants of the house. Therefore, the defence taken by the accused does not hold ground.
18. The argument that there are contradictions in the testimony of recovery witnesses is also not convincing. I have perused the cross examination of recovery witnesses but I do not find any material contradictions in their testimony. Although, there are some minor contradictions in the testimony of police witnesses but these contradictions are not fatal. Some minor contradictions are bound to appear in the testimony of witnesses. It would be unfair to discard their testimony merely because of these minor contradictions. Both the police officials have given a similar account of recovery and deposed on same lines in respect of recovery of misappropriated bags. Complainant has also supported recovery and corroborated the testimony of police witnesses.
19. It has also been a line of argument of defence that no public witness was joined in recovery and on account of this reason, the recovery is doubtful. It is the stereo type argument. I am of the considered opinion that the testimony of police personnel cannot be brushed aside merely because no public persons have been joined in investigation. The provisions as provided under [SECTION] [ACT] are only directory and failure to comply with the said provisions will not invariably be fatal for the case of the prosecution. It has been held by the Hon'ble Supreme Court in [ENTITY] of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that " The scope of these two sections ([SECTION] and [SECTION] of [ACT] have been examined in a number of cases. In Wasan Singh v. [ENTITY] (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. [ENTITY] of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In [ENTITY] of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent person from the locality to witness the search does not affect the trial and the conviction of the accused under the [ACT]. In Radha Kishan v. [ENTITY] of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would, however, cast a duty upon the Court to scrutinize the evidence regarding the search very carefully. In [PRECEDENT] it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions
This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
20. On applying the abovesaid provisions to the present matter, it is evident that the recovery of misappropriated bags has been proved. There is no reason to doubt the testimony of recovery witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. [ENTITY] (Delhi Administration) reported in AIR 2003 SC 1311 :
" The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down "
21. There is no reason to doubt the testimony of examined witnesses. There is nothing on record to show as to why the witnesses would falsely depose about the recovery or falsely implicate the accused in the present case. Although, the prudence demands that independent witness should be joined in recovery proceedings but it does not mean that in every case, the testimony of recovery witnesses should be doubted merely because no independent public witness has been joined. What is required or called for is that the police officials should make genuine and sincere efforts to join public witness at the time of recovery. Both the police witnesses have mentioned that efforts were made to join public witness from the locality but nobody was willing to join recovery proceedings. In such circumstances, the argument of defence that the testimony of police officials should be discarded merely because there is no independent public witness of recovery does not hold ground. Reference in this regard can be made to the decision in Ajmer Singh Vs. [ENTITY] of Haryana 2010 (2) RCR (Crl.) 132 and Ram Swaroop Vs. [ENTITY] (Govt of NCT Delhi) 2013 VI AD (SC 228).
22. Record further shows that [ENTITY] admitted in his statement recorded under [SECTION] [ACT] that he is residing at H.No.56, Village Bamlauni, Rohtak (Haryana). Recovery witnesses have specifically mentioned the address from where the recovery was effected. The same address as mentioned by these recovery witnesses has been recorded in the seizure memo which was prepared on the spot. The PVC bags recovered from the house of accused were identified by the complainant. Once the prosecution has established that misappropriated bags were recovered from the house of [ENTITY], then, the onus of explaining its possession shifted upon him. It was for [ENTITY] to explain as to how he gained the possession of misappropriated bags which were recovered from his house. Instead of tendering an explanation, he adopted a mode of complete denial which does not come to his rescue. The circumstances proved on record leaves no scope for doubt that [ENTITY] had every reason to believe that 360 PVC bags, which were recovered from his possession, were stolen property. The identity of case property has already been established.
23. In view of the discussion made in the aforesaid paras, I have no hesitation in concluding that [ENTITY] committed an offence punishable under [SECTION] [ACT] by dishonestly receiving and retaining the possession of misappropriated PVC bags of the company knowing or having reasons to believe that the same constitutes a stolen property. The argument of the defence that accused cannot be convicted under [SECTION] [ACT] merely because charge has not been framed under the said Section is misconceived. In Maimai Shah Vs. [ENTITY] AIR 1958 Allahabad 422, it has been held that for a conviction of a particular offence, it is not always necessary that there should have been a charge in respect of that offence. The court observed that if there is evidence on record that a certain offence has been committed but in respect of which there is no specific charge, the accused can be convicted of that offence unless his conviction on that charge would occasion a failure of justice. In the present case, although charge under [SECTION] [ACT] was not framed but there is definite evidence on record to show that stolen property was recovered from the possession of accused. During examination under [SECTION] [ACT], the accused was specifically questioned on this part of the evidence and he denied. In these circumstances, it cannot be said that accused was not aware of the evidence regarding the recovery of stolen property from his possession. He could have certainly met that evidence and in his defence produced evidence that no such recovery was made from his possession or that the property which was alleged to have been recovered from his possession was not stolen property but he failed to do so. The result is obvious. Accused [ENTITY] stands acquitted of charges under [SECTION] [ACT] read with [SECTION] [ACT] but he is convicted for committing offence punishable under [SECTION] [ACT].
Be heard separately on the point of sentence.
Announced in open Court ([ENTITY]) on 27.05.2015 ACMM-01, Central District, Tis Hazari Courts, Delhi
It is certified that this judgment contains Eighteen (18) pages and each page bears my signatures.
([ENTITY]) ACMM-01, Central District, Tis Hazari Courts, Delhi