IN THE COURT OF [ENTITY]: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS RAJENDER [ENTITY] [ENTITY] ETC[ENTITY] F[ENTITY]I[ENTITY]R[ENTITY] No: 416/96 U/[SECTION] [ACT] P[ENTITY]S[ENTITY] Nangloi Date of Institution of Case : 16[ENTITY]08[ENTITY]1996 Judgment Reserved for : 03[ENTITY]02[ENTITY]2011 Date of Judgment : 03[ENTITY]02[ENTITY]2011 JUDGMENT:
(a) The serial no[ENTITY] of the case : 4365/01/08
(b) The date of commission of offence : 10[ENTITY]06[ENTITY]1996
(c) The name of complainant : [ENTITY] S/o Sh[ENTITY] [ENTITY][ENTITY]
Gulab (d) The name, parentage, of accused : 1) [ENTITY] S/o Sh[ENTITY]Banwari, r/o village Ghumanhera, Delhi (Present address: 1/15 A, Kisar Garden, Nawada, Delhi)[ENTITY] 2) [ENTITY] S/o Sh[ENTITY] [ENTITY], r/o 13/42 B, Tilak Nagar, Delhi[ENTITY] Present Address : As above (e) The offence complained of : U/[SECTION] (f) The plea of accused :Pleaded not guilty (g) The final order : Both accused convicted (h) The date of such order : 03[ENTITY]02[ENTITY]2011
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 10[ENTITY]06[ENTITY]1996 at main Rohtak road near Rajdhani Park within the jurisdiction of police station Nangloi, accused [ENTITY] alongwith co- accused [ENTITY] in furtherance of their common intention cheated [ENTITY] S/o Sh[ENTITY] [ENTITY][ENTITY] Gulam by dishonestly inducing him to deliver him a 20' colour TV make BPL on the false pretext and with dishonest intention not to make the payment of the same to complainant [ENTITY] and thereby the accused persons committed offence punishable u/[SECTION] [ACT][ENTITY]
2[ENTITY] Charge sheet was filed in the court and in compliance of [SECTION] accused persons were supplied the documents[ENTITY] Thereafter vide order dated 16[ENTITY]10[ENTITY]1998, charge u/[SECTION] [ACT] was framed against accused persons to which they pleaded not guilty and claimed trial[ENTITY]
3[ENTITY] In order to prove the charges against the accused, prosecution examined six witnesses[ENTITY]
A brief scrutiny of the evidence recorded in the matter is as under:
4[ENTITY] PW 1 [ENTITY] deposed that on 14[ENTITY]06[ENTITY]1996 he was posted at PS Nangloi as DO and on that day on receipt of rukka sent by ASI [ENTITY], he registered the case FIR No[ENTITY] 416/96 as Ex[ENTITY]PW1/A[ENTITY]
5[ENTITY] PW 2 Ct[ENTITY] [ENTITY] deposed that on 16[ENTITY]06[ENTITY]1996 he was posted at PS Rohini and on that day, IO ASI [ENTITY] handed over him a rukka for registration of the case and he went to PS and got the case FIR registered and came back at the PP Prashant Vihar and handed over the rukka and copy of FIR to IO ASI [ENTITY][ENTITY]
6 He further deposed that on 17[ENTITY]06[ENTITY]1996 he along with IO ASI [ENTITY] went to the house of accused [ENTITY] and [ENTITY] and arrested the accused persons and accused [ENTITY] made a disclosure statement as Ex[ENTITY]PW2/A[ENTITY] Accused [ENTITY] pointed out the place where he had kept the TV make BPL and got recovered the TV from Najafgarh[ENTITY] He deposed that his statement was recorded by the IO[ENTITY]
This witness further identified the case property as Ex[ENTITY]P1[ENTITY]
7[ENTITY] During his cross examination he stated that he does not remember where IO [ENTITY] handed over him the rukka for registration of the case nor the time[ENTITY] He stated that on 17[ENTITY]06[ENTITY]1996 they went to the house of the accused and he was arrested from there[ENTITY] He stated that on the pointing out of the accused, TV was recovered and accused [ENTITY] was also arrested[ENTITY] He stated that he does not remember the address of the place from where accused [ENTITY] was arrested[ENTITY] He denied the suggestion that he did not join the investigation of this case or IO obtained his signatures on the already prepared papers to make him a witness in this case[ENTITY] He stated that he cannot tell the size i[ENTITY]e[ENTITY] size of the screen in inches which was recovered[ENTITY] He denied the suggestion that the TV was never recovered in his presence[ENTITY] He stated that he cannot tell any identification mark of the TV except its make BPL[ENTITY] He denied the suggestion that he was deposing falsely[ENTITY]
8[ENTITY] PW 3 [ENTITY] deposed that he had worked with [ENTITY] as Manager from September 1992 to November 2000[ENTITY] He deposed that on 10[ENTITY]06[ENTITY]1996 he was present at the above mentioned shop and at about 5[ENTITY]00 pm, two gentlemen came there and asked for a colour TV saying that he had to give it in his daughter's marriage[ENTITY] He deposed that he sold BPL colour TV and made the delivery challan Ex[ENTITY]PW3/A at Raj Nagar address[ENTITY] They told that payment will be made after installing the TV at the given address[ENTITY] He deposed that they told him to send the delivery boy so that they (accused persons correctly identified) can make the payment after the installation[ENTITY] He deposed that he told his delivery men namely Mr[ENTITY] [ENTITY][ENTITY] to collect the payment after the installation[ENTITY] The two gentlemen (accused persons) brought the Maruti car at their shop and took the TV along with Mr[ENTITY] [ENTITY][ENTITY] but before leaving, he had noted down the number of the car i[ENTITY]e DHN-355 Blue colour[ENTITY] He deposed that they were waiting for [ENTITY][ENTITY] for cash but at about 8[ENTITY]00 pm they got a telephone call somewhere from Nangloi area that he was given some cold drink en route and he felt unconscious and they had taken away him to unknown destination[ENTITY] The matter was reported to police by them and police recorded his statement and that of [ENTITY][ENTITY] He deposed that the case FIR was registered on the basis of statement of [ENTITY][ENTITY] i[ENTITY]e[ENTITY] Ex[ENTITY]PW3/B[ENTITY] Thereafter, the aforesaid TV was got recovered from the accused persons and was taken on superdari by the partner of their firm namely Sh[ENTITY] [ENTITY][ENTITY] He deposed that the model number of the TV was EBR Chasis No[ENTITY] 06612 D 71-75911 make BPL and the same was identified by him in the PS after the recovery[ENTITY]
This witness further identified the case property as Ex[ENTITY]P1[ENTITY]
9[ENTITY] During his cross examination he stated that he had noted the number of the Maruti car on a slip which was neither given to the police nor was in his possession any longer[ENTITY] He stated that his statement was recorded at PS [ENTITY] but he does not remember the name of that police official[ENTITY] He admitted that this type of TV is easily available in the market[ENTITY] He stated that he had identified the TV from its model[ENTITY] He denied the suggestion that this was not that TV which was sold[ENTITY] He stated that [ENTITY][ENTITY] signed in Hindi language[ENTITY] He stated that Mr[ENTITY] [ENTITY] had given a challan to the police which was in his hand writing[ENTITY] He stated that he did not tell the description of accused persons to the police[ENTITY] He stated that he had seen the accused persons in the Court only after the date of incident[ENTITY] He stated that police recorded his statement once i[ENTITY]e[ENTITY] on 10[ENTITY]06[ENTITY]1996[ENTITY] He stated that he had never given any statement on 25[ENTITY]06[ENTITY]1996 to the police [ENTITY] He stated that he does not know how the statement was recorded[ENTITY] He denied the suggestion that accused persons had been falsely implicated in this case[ENTITY]
10 PW 4 SI [ENTITY] deposed that on 14[ENTITY]06[ENTITY]1996 he was posted at PS Nangloi and on that day, complainant [ENTITY][ENTITY] S/o Sh[ENTITY] [ENTITY] along with Sh[ENTITY] [ENTITY] came to PS[ENTITY] He deposed that complainant made his statement Ex[ENTITY]PW3/A and he endorsed the same and the case was registered[ENTITY] He deposed that during the investigation, he visited the spot and prepared the site plan Ex[ENTITY]PW4/B[ENTITY] He deposed that regarding this he had also received DD No[ENTITY] 28 A dated 10[ENTITY]08[ENTITY]1996 from PS [ENTITY][ENTITY] Thereafter, he recorded the statement of the witnesses and brought the accused persons to PS Rohini[ENTITY] He deposed that accused persons were arrested in this case and he handed over the disclosure statement to SI[ENTITY] He deposed that after the recovery of the TV, the pointing out memo and the seizure memo Ex[ENTITY]PW4/A was handed over to him[ENTITY] He deposed that he filed an application for production warrants of accused persons as well as for conducting their TIP but the accused persons refused to take part in the TIP proceedings[ENTITY] He deposed that the statement of the witnesses were recorded and thereafter, he prepared the challan and filed the same in the Court[ENTITY]
11 During his cross examination he stated that he was the IO in this case from the beginning to last[ENTITY] He stated that the accused was already in custody in some other case and his custody was obtained by him by way of production warrants[ENTITY] He stated that the accused was required for TIP, which he refused[ENTITY] He admitted that when the accused was handed over to him in the court against the production warrants his face was unmuffled[ENTITY] He stated that he does not know if the accused was already shown to the complainant[ENTITY] He stated that there was a public witness i[ENTITY]e[ENTITY] the shop keeper from where the TV was taken[ENTITY] He admitted that no other person was inquired about the fact of this case[ENTITY] He voluntarily stated that there was no need in view of the fact that one was the shopkeeper and the other was his employee and the offence was also committed in their presence, so he did not think it fit to inquire from any other person[ENTITY] He denied the suggestion that the accused had been falsely implicated in the present case by the complainant and shopkeeper [ENTITY][ENTITY] He denied the suggestion that the accused had not committed any offence or he was deposing falsely[ENTITY]
12 PW 5 [ENTITY] deposed that in the year 1996 he was employed at Shri Ram Electronic, [ENTITY] as Delivery man[ENTITY] He deposed that on 10[ENTITY]06[ENTITY]1996 at about 5[ENTITY]15 pm, two persons came to their shop and choose one 20' colour TV make BPL and then owner of his shop namely [ENTITY] asked him to deliver the said TV in Maruti car which was in possession of accused persons (correctly identified)[ENTITY] He deposed that he put the said TV in their Maruti car and [ENTITY] directed him to collect the payment from the accused persons and hence, he also accompanied them in their Maruti car along with TV[ENTITY] Thereafter, the accused persons stopped the car on the way for food and also asked him regarding the food but he refused[ENTITY] He deposed that thereafter, accused persons again stopped their maruti car near a hotel and they got down from the maruti car and brought a pepsi for him and on their request, he drank it and after some time they stopped their car and he got down from the maruti car for urinal and when he saw back he found that the accused persons had been fled away in their maruti car along with the TV[ENTITY] He deposed that he felt some irritation in his stomach and he sat there for about 20 minutes and he asked the passer by regarding the locality and came to know that he was in Rajdhani Park[ENTITY] He deposed that he informed the whole story to his owner Mr[ENTITY] [ENTITY][ENTITY] He deposed that first of all his statement was recorded at PS [ENTITY] and then PS Nangloi as Ex[ENTITY]PW3/B[ENTITY] He further deposed that on 14[ENTITY]06[ENTITY]1996 TV was recovered from the accused persons[ENTITY]
This witness further identified the case property as Ex[ENTITY]P1[ENTITY]
13 During his cross examination he stated that he remained in employment at that shop for a short period but he had no proof of his employment[ENTITY] He stated that he cannot tell the chasis number of the TV[ENTITY] He stated that the owner of the said shop might had noted with him the registration number of the car but he did not note down the same himself[ENTITY] He stated that two persons had put the TV in the car[ENTITY] He stated that he does not know from which shop the pepsi was taken nor he can tell about the place where he got down from the car[ENTITY] He stated that he had never seen the accused after the incident nor he had ever been asked by anyone to identify the accused[ENTITY] He stated that he cannot tell about the clothes which were worn by the accused persons[ENTITY] He stated that he also cannot tell who was driving the maruti car on that day[ENTITY] He denied the suggestion that he had been tutored as a witness in this case[ENTITY] He denied the suggestion that accused persons had never taken any TV in his presence or he was deposing falsely[ENTITY]
14 PW 6 ASI [ENTITY] deposed that on 16[ENTITY]06[ENTITY]1996 he was posted at PS Prashant Vihar as ASI where one person namely Sh[ENTITY] [ENTITY] came to PS and informed that accused [ENTITY] and [ENTITY] (correctly identified) had taken a TV from his shop by cheating him regarding which case FIR bearing No[ENTITY] 245/96 was registered[ENTITY] He deposed that during the investigation, accused [ENTITY] and [ENTITY] also disclosed that they had also cheated one another person for a TV from Nangloi area regarding which PS Nangloi was also informed[ENTITY]
15 During his cross examination he denied the suggestion that no disclosure statement was recorded in his presence but signatures of the accused persons were taken on the blank papers[ENTITY] He denied the suggestion that no TV was recovered pertaining to this case in his presence by him[ENTITY] He denied the suggestion that the accused persons had been falsely implicated in this case at the instance of the complainant[ENTITY] He denied the suggestion that pointing out statement was recorded[ENTITY] He stated that he does not know the make of the TV[ENTITY]
16[ENTITY] This is all as far as prosecution evidence in the matter is concerned[ENTITY]
17[ENTITY] I have heard the arguments advanced at bar by the learned defence counsel and also learned APP[ENTITY] I have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case[ENTITY]
18[ENTITY] In order to prove its case and establish the guilt of the accused the prosecution has to prove that the accused persons namely [ENTITY] and [ENTITY] cheated complainant [ENTITY] S/o [ENTITY] and Sh[ENTITY] [ENTITY] by dishonestly inducing them to deliver to them a TV make BPL having no intention to pay the amount/valuable consideration for the same[ENTITY]
19[ENTITY] After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused persons[ENTITY]
20 It stands proved from the deposition of complainant [ENTITY] and [ENTITY] that they were cheated by the accused persons and induced to deliver a colour TV for which the accused persons had no intention whatsoever to make the payment[ENTITY]
21 Complainant [ENTITY] was examined as PW 5[ENTITY] He proved that on 10[ENTITY]06[ENTITY]1996 while he was employed at Shri Ram Electronics, [ENTITY] as delivery man, both the accused persons came to the above said shop and he was asked by his employer Sh[ENTITY] [ENTITY] (PW3) to accompany both the accused persons as was requested by them in their Maruti car along with the TV and after installing the TV at the house of the accused persons collect the payment regarding the same[ENTITY] However, on way, the accused persons gave him a pepsi after drinking which he felt for a need to go for urinal/ease himself[ENTITY] When he stepped out of the car, the accused persons fled away from the spot along with the TV[ENTITY]
22 This witness proved that his statement was recorded by the police and the same is on record as Ex[ENTITY]PW3/B[ENTITY] He correctly identified the accused persons in the Court as well as duly identified the case property i[ENTITY]e[ENTITY] the TV as Ex[ENTITY]P1[ENTITY]
23 Deposition of the complainant was duly corroborated by PW 3 Sh[ENTITY] [ENTITY][ENTITY]
24 Sh[ENTITY] [ENTITY] duly supported the deposition of PW 5[ENTITY] He proved that on 10[ENTITY]06[ENTITY]1996, the accused persons came to Shri Ram Electronics where he worked as Manager and asked for colour TV submitting that it was to be given in the daughter's marriage[ENTITY] He proved that he sold a BPL colour TV to the accused persons vide delivery challan Ex[ENTITY]PW3/A and at the request of the accused persons sent delivery man Mr[ENTITY] [ENTITY] along with the accused persons to install the TV at the place asked by the accused persons and thereafter collect the payment as was requested by the accused persons[ENTITY] He proved that the accused persons had brought their maruti car for taking the delivery and he had noted down the number of the car which was DHN-355[ENTITY] This witness further proved that at around 8[ENTITY]00 pm, he was informed by Mr[ENTITY] [ENTITY] (PW 5) via telephone that the accused persons gave him a cold drink after consuming which he felt unconscious and thereafter, the accused persons fled away with the TV[ENTITY] He proved that his statement and that of Mr[ENTITY] [ENTITY] was recorded by the police who also gave his complaint as Ex[ENTITY]PW3/B[ENTITY] 25 He correctly identified the accused persons in the Court as well as duly identified the case property i[ENTITY]e[ENTITY] the TV which was recovered from the accused persons as Ex[ENTITY]P1 when the same was produced during trial as well proved the delivery challan as Ex[ENTITY] PW3/A[ENTITY] 26 Hence, both the complainant and eye witness duly proved incident dated 10[ENTITY]06[ENTITY]1996 and correctly established the identity of the accused persons as well as the TV in question[ENTITY]
27 The accused persons were arrested in case FIR no[ENTITY] 235/96 by ASI [ENTITY] (PW 6) and it was during their interrogation that the accused persons disclosed about the commission of the present offence[ENTITY] Disclosure statement of accused is on record as Ex[ENTITY] PW2/A[ENTITY] ASI [ENTITY] then informed PS Nangloi regarding the disclosure of the accused persons vide DD No[ENTITY] 10 A and thereafter, on an application of SI [ENTITY] (PW 4), the production warrants of the accused persons were issued and they were arrested in the present case[ENTITY]
IO SI [ENTITY] further proved that he prepared the site plan as Ex[ENTITY]PW4/B and arrested the accused persons and also seized the TV in question vide Ex[ENTITY]PW4/A which was already seized/recovered vide Mark A by officials of PS Rohini[ENTITY]
28 PW 2 Ct[ENTITY] [ENTITY] who was on investigation along with ASI [ENTITY] (PW 6) in case FIR No[ENTITY] 235/96 proved that on 17[ENTITY]06[ENTITY]1996 he along with ASI [ENTITY] went to the house of accused [ENTITY] and [ENTITY], both of them were arrested and accused [ENTITY] made a disclosure statement Ex[ENTITY]PW2/A on the basis of which and on the pointing out of accused [ENTITY], the TV in question was recovered[ENTITY]
29 FIR was proved as Ex[ENTITY]PW1/A by [ENTITY] (PW1)[ENTITY]
30 During the course of arguments, Ld[ENTITY] Defence counsel vehemently argued that the prosecution story suffers from various loopholes and in fact, prosecution has miserably failed to bring home the guilt against the accused persons[ENTITY] It was argued that in his cross examination PW5 failed to give satisfactory answers to the question put to him for example who was driving the car at the time of incident, what clothes the accused were wearing, where they left him and allegedly fled away etc[ENTITY] which shows that he was deposing falsely at the instance of the police officials[ENTITY] It was further argued that no public person was joined in the investigation and prosecution is solely relying upon the testimony of the complainant and his employer[ENTITY] It was argued that there is an inordinate delay in the FIR i[ENTITY]e delay of around four days which has not been explained by the prosecution and which in itself casts serious doubts upon the prosecution story[ENTITY] It was argued that the prosecution story does not inspire confidence[ENTITY] There is no signature of any of the accused persons on Ex[ENTITY]PW3/A, no proof of any payment whether cash or by way of cheque regarding the TV in question which shows that the transaction as alleged by the prosecution was never entered into in between the accused persons and the complainant[ENTITY] It was argued that complainant [ENTITY] on whose complaint the present FIR was registered was never examined and instead in his place one [ENTITY] has been examined and they are two different persons and [ENTITY] has no connection with the present case[ENTITY] It was also argued that no medical examination of the complainant was got conducted by the IO to substantiate his claims that he was made to drink certain intoxicating substance because of which he felt unconscious[ENTITY] Lastly it was argued that PW 3 admitted in his cross examination that he had not handed over the chit on which the number of the Maruti car was noted down by him to the police which shows that he had deposed falsely regarding the accused persons taking away the TV in the Maruti car and it also proves that the prosecution has failed to connect the accused persons with the Maruti car in question, more so when the car was not recovered[ENTITY]
31 However, I do not agree with either contentions of the Ld[ENTITY] Defence counsel[ENTITY]
32 To begin with the contentions that no public person was joined in the investigation, in my opinion, the said arguments are devoid of any merit as firstly, the [ACT] does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case[ENTITY] Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano[ENTITY] Vs State 2002 (2) CRIMES 63 (SC)[ENTITY]
33 Reliance can be placed upon Chittar Lal v[ENTITY] State of Rajasthan, (SC) 2003 Cri[ENTITY]L[ENTITY]J[ENTITY] 3548 wherein it was held:
It is the quality of evidence of the single witness whose testimo- ny has to be tested on the touchstone of credibility and reliability[ENTITY] If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof[ENTITY] It is the quality and not the quanti- ty of evidence which is necessary for proving or disproving a fact[ENTITY] 1996(1) RCR(Crl[ENTITY]) 308 (SC) relied on[ENTITY]
The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in [SECTION] of the [ACT][ENTITY] This position has been settled by a series of decisions[ENTITY] The first decision which has become locus classicus is [ENTITY] Gugal Esa Mamasan Ger Alalah v[ENTITY] The King, AIR 1946 PC 3[ENTITY] The Privy Council focused on the difference between English Law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and [SECTION] of [ACT][ENTITY] The view has been echoed in Vadivelu Thevar v[ENTITY] The State of Madras, AIR 1957 SC 614, Guli Chand and others v[ENTITY] State of Rajasthan, AIR 1974 SC 276, Vahula Bhushan @ Vehuna Krishnan v[ENTITY] State of Tamil Nadu, AIR 1989 SC 236, Jagdish Prasad and others v[ENTITY] State of M[ENTITY]P[ENTITY], AIR 1994 SC 1251, and Kartik Malhar v[ENTITY] State of Bihar, 1996(1) RCR(Crl[ENTITY]) 308 (SC) : 1996(1) SCC 614, Namdeo v[ENTITY] State of Maharashtra, (SC) 2007(2) R[ENTITY]C[ENTITY]R[ENTITY](Criminal) 893 and Shivaji Sahebrao Bobade v[ENTITY] State of Maharashtra, (1973)2 SCC 793[ENTITY]
34 Secondly, the Ld[ENTITY] Defence counsel seems to have lost sight of the fact that the present prosecution was lodged at the instance of complainant [ENTITY] who was examined as PW 5 and who fully supported the prosecution story[ENTITY] Apart from the complainant, Mr[ENTITY] [ENTITY] who was examined as PW 3 lend due credence to the prosecution story/deposition of PW 5[ENTITY] I find no reasons why they would depose falsely implicate the accused persons[ENTITY] There is nothing on record to suggest that the complainants and the accused persons knew each other prior to the incident or that the complainants were inimical to the accused persons[ENTITY] Defence has failed to prove any motive which could be assigned to the complainants for falsely implicating the accused persons[ENTITY] They were the aggrieved persons and their testimony which withstood the grilling cross examination by the Ld[ENTITY] Defence counsel itself sufficient to bring home the guilt against the accused persons[ENTITY]
35 Mere because during his cross examination PW5 (complainant) failed to give satisfactory replies regarding the place where he was left behind by the accused persons, what clothes they were wearing or who was driving the car does not mean that he was a tutored witness/was deposing falsely[ENTITY] The incident occurred in the year 1996 and deposition/cross examination of the witness was recorded in the year 2001 i[ENTITY]e[ENTITY] after five long years[ENTITY] Human memories are apt to blur with time[ENTITY] After gap of five years no one can be expected to give a parrot like version or minutely or with mathematically precision narrate about an incident five years old[ENTITY] Minor contradictions are natural and not fatal in the present case[ENTITY] The discrepancies which are due to normal errors of perception or observation should not be given importance[ENTITY] The errors due to lapse of memory may be given due allowance[ENTITY] It's a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements[ENTITY] (Balbir Singh v[ENTITY] State of Punjab, (P&H) 2003 Cri[ENTITY]L[ENTITY]J[ENTITY] 3148) and State of Gujarat v[ENTITY] Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri[ENTITY]L[ENTITY]J[ENTITY] 2531[ENTITY] In Bharwada Bhoginbhai Hirjibhai v[ENTITY] State of Gujarat, AIR 1983 SC 753, it has been observed that a witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness[ENTITY]
36 The contentions that complainant [ENTITY] was never examined by the prosecution is not only devoid of any merits but is baseless and contrary to the records[ENTITY] Complainant [ENTITY] whose complaint Ex[ENTITY]PW3/B formed the basis of the present prosecution was examined as PW 5[ENTITY] Merely because in his complaint he had stated his name as [ENTITY] only while in his deposition in the Court he had stated his name as [ENTITY] has no relevance whatsoever[ENTITY] It is proved from the material on record i[ENTITY]e Ex[ENTITY]PW3/B as well as the various documents which includes the address of the complainant, the statement/deposition of PW 3 Sh[ENTITY] [ENTITY] that [ENTITY] who was examined as PW 5 is the same person i[ENTITY]e[ENTITY] [ENTITY] S/o [ENTITY] whose complaint Ex[ENTITY]PW3/B formed the basis of the present case FIR[ENTITY]
37 Another bald contentions of the defence that there is delay in the lodging of the FIR which has gone unexplained and which shows that the complaint/prosecution is a false one, can easily be put to rest in view of the law laid down by the Hon'ble Apex Court in case titled as "Mehmood Vs[ENTITY] State of UP (SC) 2008 (1) RCR (Criminal) 130 and State of Himachal Pradesh Vs[ENTITY] Gian Chand (SC) 2001 (2) RCR (Criminal) 666 wherein it has been held that delay in lodging FIR if explained by the prosecution is not fatal for the prosecution story and mere delay cannot be used as a ritualistic formula for doubting the prosecution case[ENTITY] Further reliance may be placed upon the law laid down in "Basudeo Yadav v[ENTITY] Surendra Yadav & Ors[ENTITY], (SC) 2009 A[ENTITY]I[ENTITY]R[ENTITY] (SC) 546, State of Himachal Pradesh v[ENTITY] Gian Chand, (SC) 2001(2) R[ENTITY]C[ENTITY]R[ENTITY](Criminal) 666, Harbans Kaur v[ENTITY] State of Haryana , (SC) 2005(3) J[ENTITY]T[ENTITY] 233, Harpal Singh v[ENTITY] Devinder Singh, (SC) 1997 Cri[ENTITY]L[ENTITY]J[ENTITY] 3561, Ramanbhai Naranbhai Patel v[ENTITY] State of Gujarat, (SC) 2000(1) R[ENTITY]C[ENTITY]R[ENTITY](Criminal) 93 and Zahoor v[ENTITY] State of U[ENTITY]P[ENTITY], (SC) 1991(Sup1) S[ENTITY]C[ENTITY]C[ENTITY] 372 wherein it has been observed that "delay in recording FIR is not a factor vitiating prosecution[ENTITY] Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly"[ENTITY]
38 Similarly observations were made in State of UP Vs[ENTITY] Chet Ram (SC) 1989 AIR (SC) 1543[ENTITY] In the present case, the incident occurred in the late evening on 10[ENTITY]06[ENTITY]1996, complainant [ENTITY] informed Sh[ENTITY] [ENTITY] (PW3) at around 8 p[ENTITY]m[ENTITY] and complaint regarding the same was made on the very next day at PS [ENTITY] vide DD No[ENTITY] 28 A which is on record[ENTITY] The said DD reflects that it was assigned to SI [ENTITY] and kept pending while matter was investigated[ENTITY] Finally, the FIR was registered on 14[ENTITY]06[ENTITY]1996[ENTITY] This shows that the complainant had acted diligently and informed the PS regarding the cheating he suffered at the hands of accused persons[ENTITY] However, as has been and is the approach of Delhi Police, they desist from registering the FIR so as to lower the crime graph/index[ENTITY] But the question is why should the innocent citizen suffer because of this shameless and work shirking approach of the Delhi Police[ENTITY]
39 One of the arguments raised by the Ld[ENTITY] Defence counsel in defence of the accused persons was that prosecution failed to prove that any transaction on 10[ENTITY]06[ENTITY]2006 was in fact entered in between by the accused persons and the complainant as Ex[ENTITY]PW3/A does not bear the signatures of the accused persons which show that accused persons never visited the showroom of the complainant or purchased the TV as alleged[ENTITY] This contention has no merits as it stands proved from the deposition of PW 3 & 5 that only delivery challan was prepared and the payment was to be made only after installation of the TV by PW 5 at the site as requested by the accused persons[ENTITY] But no occasion arose for the payment whether by way of cash or cheque as the accused persons fled away with the TV leaving behind PW 5 i[ENTITY]e complainant [ENTITY][ENTITY]
40 The contention of the defence counsel that the complainant did not give the chit on which the number of the car was noted down by him and the fact that the car was admittedly never recovered shows that the accused persons never visited the showroom in the car alleged and hence, Sh[ENTITY] [ENTITY] was deposing falsely has no significance whatsoever[ENTITY] Firstly, the number of the car was mentioned in the complaint as well as the DD no[ENTITY] 28A of PS [ENTITY][ENTITY] Secondly, the case property was the TV and the same was duly recovered from the possession of the accused[ENTITY] Thirdly, it came up in the investigation that the number plate as was implied on the Maruti Car was a forged one and in fact, of a stolen scooter which is otherwise evident from the registration number[ENTITY] Because of this reason the Maruti Car could not be recovered during the investigation[ENTITY] Further more, as discussed above, the identity of the accused persons was duly established by both the complainants[ENTITY] The accused persons refused to take part in the TIP proceedings[ENTITY] Application of the IO and the TIP proceedings are on record[ENTITY] Though they were produced in un-muffled face however from the deposition of PW3 and PW5 it is crystal clear that they would have firmly/correctly identified the accused persons and hence, the accused persons feared the same therefore, refused to take part in the TIP proceedings[ENTITY]
41 Ld[ENTITY] Defence counsel also submitted that no medical examination of the complainant [ENTITY] was got conducted by the IO to substantiate his claim that he was made to drink pepsi because of which he became unconscious/felt a need to go to urinal and this shows that the complainant was telling a lie[ENTITY] However, I am not inclined to give any emphasis on the submissions of the Ld[ENTITY] Defence counsel[ENTITY] Firstly, a time gap of around 4-5 hours elapsed till the time [ENTITY] (PW 5) brought the matter to the knowledge of PW 3 and even more time elapsed before the matter was brought to the notice of police[ENTITY] After such a long period hardly any sample would have remained for the IO to collect and sent them for examination in the laboratory[ENTITY] Moreover, complainant [ENTITY] was taken from [ENTITY] to a place in Nangloi which he was not familiar with and may be he was not in a position to pin point the exact location/spot where the accused persons left him behind and fled away in their Maruti car[ENTITY] Nonetheless, the law is well settled that an accused should not be allowed to go scot free merely on account of faulty/negligent investigation[ENTITY] Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies[ENTITY] (Lakshmi v[ENTITY] State of UP (SC) 2002 (4) R[ENTITY]C[ENTITY]R[ENTITY] (Criminal) 82)[ENTITY] Mere faulty investigation cannot be made basis of acquitting the accused when sufficient evidence is available to nail him (Ram Parshad v[ENTITY] State of Haryana, (P & H) (DB) 1992(3) R[ENTITY]C[ENTITY]R (Criminal) 231)[ENTITY] In Zahira Habibulla H[ENTITY] Sheikh v[ENTITY] State of Gujrat (SC), 2004 (4) S[ENTITY]C[ENTITY]C 158 and State of UP v[ENTITY] Jagdeo (SC) 2003 A[ENTITY]I[ENTITY]R[ENTITY] (SC) 660 , the Hon'ble Apex Court held that accused should not be acquitted solely on account of the defect in investigation[ENTITY] To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective[ENTITY] (Balwant Singh v[ENTITY] State of Haryana, (SC) 1995 A[ENTITY]I[ENTITY]R[ENTITY] (SC) 84 and Amar Singh Vs[ENTITY] Balwinder Singh 2003 AIR SCW 717)[ENTITY]
42 Regarding the last contention that ingredients of [SECTION] [ACT] are not made out against the accused it will be worthwhile to have a glance at the ingredients of the said provisions of [ACT] and the law laid down by the Apex Court[ENTITY] [SECTION] deals with certain specified classes of cheating[ENTITY] It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security[ENTITY] [SECTION] defines "cheating"[ENTITY] The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property[ENTITY] Deception of any person is common to the second and third requirements of the provision[ENTITY] The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction `or'[ENTITY] The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs[ENTITY] Deception is the quintessence of the offence[ENTITY]
43 The essential ingredients to attract [SECTION] are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement[ENTITY] The making of a false representation is one of the ingredients for the offence of cheating under [SECTION][ENTITY]
(Bashirbhai Mohamedbhai v[ENTITY] State of Bombay (AIR 1960 SC
979), Ajay Mitra v[ENTITY] State of M[ENTITY]P[ENTITY], (SC) 2003(1) R[ENTITY]C[ENTITY]R[ENTITY](Criminal) 674, Devender Kumar Singla v[ENTITY] Baldev Krishan Singla, (SC) 2004(2) J[ENTITY]T[ENTITY] 539[ENTITY]
44 There must be inducement on the part of accused and inducement should be made fraudulently or dishonestly with a view to deceive a person and as a result of inducement the person so deceived delivered property to accused persons or gave consent that accused persons shall retain the property[ENTITY] As was observed by the Court in Shivanarayan Kabra v[ENTITY] State of Madras (AIR 1967 SC
986) it is necessary that a false pretence should be made in express words by the accused[ENTITY] It may be inferred from all the circumstances including the conduct of the accused in obtaining the property[ENTITY] In the true nature of things it is not always possible to prove dishonest intention by any direct evidence[ENTITY] It can be proved by number of circumstances from which a reasonable inference can be drawn[ENTITY] Suryalakshmi Cotton Mills Ltd[ENTITY] v[ENTITY] Rajvir Industries Ltd[ENTITY] , (SC) 2008(1) R[ENTITY]C[ENTITY]R[ENTITY](Criminal) 652, S[ENTITY]W[ENTITY] Palanitkar v[ENTITY] State of Bihar, (SC) 2001(4) R[ENTITY]C[ENTITY]R[ENTITY](Criminal) 572 and Alpic Finance Ltd[ENTITY] v[ENTITY] P[ENTITY] Sadasivan, (SC) 2001(1) R[ENTITY]C[ENTITY]R[ENTITY](Criminal) 756[ENTITY]
45 In the case at hand, from the facts and circumstances of the case as well as the deposition of PW 3 & PW 5 it is amply clear that both the accused persons had no intention whatsoever from the very inception they entered the shop to make the payment in respect of the TV in question[ENTITY] In furtherance of their game plan, they did not make the payment at the time they purchased it i[ENTITY]e[ENTITY] when the challan/invoice i[ENTITY]e PW 3/A was prepared, they gave a fake address on the challan and they dumped the delivery man/complainant [ENTITY] on their way to the alleged/fake site of installation[ENTITY]
CONCLUSION
46[ENTITY] Hence, in view of my above discussion, accused persons are held guilty U/[SECTION] [ACT] and is accordingly convicted for the said offence[ENTITY]
47[ENTITY] A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence[ENTITY]
Announced in the open ([ENTITY]) Court on 03[ENTITY]02[ENTITY]2011 [CASE NUMBER][ENTITY] PS Nangloi 03[ENTITY]02[ENTITY]2011 Pr: Ld APP for the state[ENTITY]
Both accused persons are present on bail along with their counsel[ENTITY]
Further final arguments heard[ENTITY]
Put up for orders at 4[ENTITY]00 pm[ENTITY] At 4[ENTITY]00 pm Vide my separate judgment announced today in Open Court accused [ENTITY] and [ENTITY] have been held guilty u/[SECTION] [ACT][ENTITY]
Matter be now listed for arguments on the point of sentence on 07[ENTITY]02[ENTITY]2011[ENTITY]
([ENTITY]) MM (West)/Delhi[ENTITY]
03[ENTITY]02[ENTITY]2011[ENTITY]
IN THE COURT OF [ENTITY]:
METROPOLITAN MAGISTRATE: WEST: DELHI In Re: [PRECEDENT] [ENTITY] [ENTITY] [ENTITY] [ENTITY] F[ENTITY]I[ENTITY]R[ENTITY] No[ENTITY]: 416/96 U/[SECTION] [ACT] P[ENTITY]S[ENTITY] Nangloi ORDER ON SENTENCE 07[ENTITY]02[ENTITY]2011 Present: Ld[ENTITY] APP (S) for the State[ENTITY]
Both convicts are present on bail[ENTITY]
Vide judgment announced on 03[ENTITY]02[ENTITY]2011 accused [ENTITY] and [ENTITY] were held guilty and convicted u/[SECTION] [ACT][ENTITY]
The learned defence counsel submitted that convicts have been facing trial for the last more than 14 years and the same itself has been enough punishment for them[ENTITY] It was submitted that the convicts are around 55 years of age, have large family to look after including daughters of marriageable age and they are the sole bread earner in their respective families[ENTITY] It was further submitted on behalf of accused [ENTITY] that he suffered from paralytic attack few years back and is not keeping good health since then[ENTITY] It was also prayed the accused persons be given benefit of [SECTION] Cr[ENTITY]p[ENTITY]c[ENTITY] i[ENTITY]e to release the accused persons on probation of good conduct[ENTITY]
Per contra, learned APP has very vehemently argued that the act of the accused persons is unpardonable[ENTITY] It was submitted that the accused persons are involved in numerous cases of cheating i[ENTITY]e[ENTITY] around 8-10 cases including case FIR no[ENTITY] 416/96, 425/96, both PS Nangloi, 492/96 PS Paschim Vihar, 589/96 PS Vikas Puri etc[ENTITY] It was further submitted by the Ld[ENTITY] APP for State that the accused persons are involved in several other cases however, the accused persons have mentioned different and fake addresses in the police stations and hence, it has become difficult to find out their other involvements[ENTITY]
After giving my thoughtful to the submissions made at bar I am of the considered opinion that taking into account the long drawn trial as well as the age of the accused persons, it shall meet the ends of justice if the accused persons are sentenced to undergo three years RI along with fine of Rs[ENTITY] 5000/- each for offence u/[SECTION] [ACT][ENTITY] In default of payment of fine they are directed to undergo further SI of 30 days[ENTITY] Benefit of [SECTION] Cr[ENTITY]P[ENTITY]C[ENTITY] is given to accused persons (Accused [ENTITY]: 25[ENTITY]06[ENTITY]1996 to 01[ENTITY]10[ENTITY]1996, Accused [ENTITY] : 25[ENTITY]06[ENTITY]1996 to 24[ENTITY]09[ENTITY]1996) The accused persons are further directed to pay a compensation of Rs[ENTITY] 25,000/- each to the complainant Sh[ENTITY] [ENTITY] and [ENTITY][ENTITY]
Benefit of probation is not given to the accused persons as the accused persons seem to be habitual cheater[ENTITY] They are involved in numerous cases of cheating/fraud[ENTITY] Numerous innocent citizen have suffered at their hands[ENTITY]
I order accordingly[ENTITY]
At this stage, an application u/[SECTION] Cr[ENTITY]P[ENTITY]C[ENTITY] has been moved by the accused persons for suspension of sentence[ENTITY] As the accused persons were on bail during trial they are admitted to bail on furnishing bail bond in the sum of Rs[ENTITY] 10,000/- each with one surety of the like amount for 30 days[ENTITY] Bail bonds furnished considered and accepted[ENTITY]
Fine amount and compensation amount not paid[ENTITY]
A copy of this order be given to the convicts free of cost[ENTITY] File be consigned to Record Room[ENTITY]
Announced in the open court ([ENTITY]) on 07[ENTITY]02[ENTITY]2011 MM (West): Delhi