IN THE COURT OF Ms. [ENTITY] CHIEF METROPOLITAN MAGISTRATE:EAST KARKARDOOMA COURT: DELHI FIR No. : 664/2003 PS : Shakar Pur u/S : 420/468/[SECTION]/120B [ACT] STATE Vs. ASHWANI JUDGMENT
A Unique ID No. of the [CASE NUMBER] case B Name of the [ENTITY] complainant C Name of the accused & [ENTITY] his parentage and S/o. Sh. [ENTITY] address R/o. O-68, Karawal Nagar, Delhi. D Offence Complained of 420/468/[SECTION]/120B [ACT] E Date of commission of 10.12.03 offence. F Date of Institution 01.03.2008 G Offence Charged 420/468/[SECTION]/120B [ACT] H Plea of the accused Pleaded not Guilty I Order Reserved on 07.06.2019 J Date of Pronouncement 20.06.2019 K Final Order Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The case of the prosecution is that the accused [ENTITY] alongwith his associates namely [ENTITY] and [ENTITY] (not arrested) entered into a criminal conspiracy to cheat public persons by floating an advertisement seeking employment for vacancies in Reebok Group FIR 664/2003 State Vs. [ENTITY] @Vikas 1/16 of Companies Limited (RGCL). In response to the said advertisement various persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] etc. applied for various posts. The accused persons also charged Rs.1,000/- from each of the applicants on the pretext of getting employement with RGCL and also dishonestly issued forged appointment letters to the victims. All this was done while operating from their office at Tyagi Chambers, Shakarpur, Laxmi Nagar, Delhi. Accordingly, accused [ENTITY] is alleged to have committed offences u/[SECTION] [ACT].
2 On the basis of these allegations and the complaint made by [ENTITY] (Ex.PW-2/A), present FIR (Ex.PW-4/A) was registered on 10.12.2003 .
CHARGE 3 After investigation, charge-sheet under [SECTION] [ACT] was filed on 01.03.2008.
4 On the basis of the charge-sheet and after compliance of [SECTION] [ACT], a charge for the offence punishable under [SECTION] [ACT] was framed against the accused and was read out to him to which he pleaded not guilty and claimed trial on 01.03.2008.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 16 witnesses in all:
6 PW 1 [ENTITY] is one of the victim who deposed that in the year FIR 664/2003 State Vs. [ENTITY] @Vikas 2/16
2003 he had applied for the post of Field Officer in Reebok Company. He was called for interview at Delhi but he does not remember the exact place. When he reached there, he found police officials present, who obtained his signatures and asked him to go back. He was cross examined on behalf of Ld. APP for State but he neither supported the case of prosecution nor identified the accused as the person who had met him when he had come to Delhi for interview. However, he identified the advertisement for vacancy which is Mark X and the appointment letter received by him which is Mark X-1. 7 PW 2 is the Complainant [ENTITY], who deposed that in the year 2003 he had applied for the post of [ENTITY] with Bajaj Industries Company Limited (BICL). He had sent his application through Post in the office of the company at Shakarpur. He had also deposited Rs.1,000/- as fees and attended the interview in the office. Thereafter, he was instructed to go home and was ensured that the field officer will handover his office letter to him. But he did not receive any joining letter. He made a telephonic call at the office where he had attended the interview and came to know that the office had been closed. He sent his complaint Ex.PW-2/A to Crime Branch, Delhi by way of Post. He also handed over the receipt of Rs.1,000/- Ex.PA and appointment letter Ex.PB to the police which was seized vide seizure memo Ex.PW-2/B. He stated that he was not in a position to identify the person who had met him in the office.
8 He was declared hostile and cross examined on behalf of State but despite showing the accused [ENTITY], he did not identify him. 9 PW-5 [ENTITY] is another victim, who deposed that in the year 2003, he applied for the post of helper with RGCL by seeing an advertisement in Daily Newspaper namely [ENTITY]. He purchased a form from Bombay Type College (Hisar) and sent his application alongwith photocopy of his documents at the address of FIR 664/2003 State Vs. [ENTITY] @Vikas 3/16 RGCL. He identified his application as Mark X-5. After 10 days he received a letter from the Company for interview which is Mark X-6. He came to the Delhi for interview and went to H. NO. 101 Sukhdev Nagar, Delhi. Some persons were sitting there who informed him that the interview had been cancelled and would be conducted later. He identified the envelope containing his appointment letter as Mark X-5 and also stated that it was also containing a visiting card of Tyagi Business Centre i.e. Mark X-2. He also stated that he had visited School Block of Shakarpur where he came to know that the company was bogus. His documents were seized vide memo Ex.PW-5/A. He also stated that a demand of Rs.1,450/- was made as registration fee (450/-) and deposit money (Rs.1,000/-). He also did not identify the accused.
10 PW-6 [ENTITY] is another victim, who also deposed having applied for vacancy with RGCL. He had come to Delhi alongwith PW-5 in December, 2003 and reached the address given on the envelope i.e. H.No. 101 First floor where 4-5 persons were found sitting. On their asking he had handed over two passport size photographs alongwith photocopies of his documents and also put signature on their file. Thereafter, he was told that he would be contacted over phone and he returned back to Hisar.
11 This witness was also cross examined on behalf of State wherein he admitted that he had come to know about the vacancy from [ENTITY] Newspaper. He had also received an appointment letter from RGCL for the post of Guard at a monthly salary of Rs.3,450/- alongwith a visiting card of Tyagi Business Centre, S-530, School Block II, Vikas Marg, Shakarpur, Delhi. He admitted that he had met one person by the name of [ENTITY] at the said office but he failed to identify the accused as the said [ENTITY]. He also denied having given Rs.1450/- as registration charges to [ENTITY] FIR 664/2003 State Vs. [ENTITY] @Vikas 4/16 Kumar.
12 PW-7 [ENTITY] is another victim, who deposed that in the year 2003 on seeing a post advertisement for employment he had applied for the post of Supervisor by sending his application through Post at the address mentioned in the advertisement, which he did not remember now. He received a call letter for interview and had gone to Shakarpur, Delhi. There police officials met him and informed that they had already apprehended the person issuing the advertisement as they were doing illegal things and not giving any appointment. He had handed over his documents to the police including his appointment letter Ex.PW-7/B which was seized vide memo Ex.PW-7/A. 13 This witness was also subjected to cross examination wherein he denied that he had given Rs. 1450/- to accused [ENTITY] as security. He also failed to identify the accused. 14 PW-10 [ENTITY] is again a victim, who also deposed having applied for the post of Field Officer of Bata Company at a salary of Rs. 5000/- in the year 2003 after seeing an advertisement in the Newspaper. He had gone to the address mentioned in the appointment letter received by him but had met only police officials there. He identified the appointment letter received by him as Ex.PW- 10/D, visiting card received alongwith appointment letter as Ex.PW- 10/B and the envelope in which the said documents were received as Ex.PW-10/A and also stated that he had handed over these documents to the IO which were seized vide memo Ex.PW-10/C. 15 He was also cross examined by Ld. APP for State wherein he failed to identify the accused as the person who had met him at the given address. He also denied having given Rs.2050/- in cash to accused [ENTITY].
16 PW-16 [ENTITY] is also one of the victim, who deposed that in the year 2003 he had seen an advertisement published in the FIR 664/2003 State Vs. [ENTITY] @Vikas 5/16 Newspaper regarding the placements in RGCL. He came to Delhi at Tyagi Bhawan, Laxmi Nagar where one [ENTITY] met him and obtained his documents/ photocopy of marksheet of matric and graduation and photocopy of qualification regarding typing skill which are Ex.PW-16/A. On his directions, he has filled up the form Ex.PW- 16/A. He had also paid a fees of Rs.2050/- to [ENTITY] and was assured that he will be sent a letter of joining. However, he did not receive any letter. Thereafter, he again came to Delhi and found the office closed. Thereafter, he returned back and did not take any action nor police official contacted him regarding this case nor his statement was recorded. He identified the accused as the said [ENTITY], who had met him at Tyagi Bhawan, Laxmi Nagar.
17 In his cross examination by Ld. Defence Counsel, he could not produce any receipt of Rs.2050/- nor he could produce any Newspaper Publication seeing which he had applied for the post. He could not tell the date or month of the incident nor he could tell the exact address where he had visited. The statement of this witness U/[SECTION] [ACT] is not available on court record or police file 18 PW-3 [ENTITY] is a witness from [ENTITY] Newspaper, who produced the edition of [ENTITY] published from New Delhi (Hisar) dated 05.11.2003 (Ex.PW-3/A) in which the advertisement on behalf of RGCL having office at 101/B-21, Masigarh opposite Sukhdev Vihar, Delhi with regard to requirement of job at different posts was published (Ex.PA).
19 PW-4 SI [ENTITY] is a formal witness being the Duty Officer, who proved the registration of present FIR as Ex.PW-4/A and the endorsement made on the rukka as Ex.PW-4/B. 20 PW-8 [ENTITY] deposed that in the year 2003 he was running a shop by the name of Bombay Photostat and Type College at Hisar. He had seen one advertisement in [ENTITY] dated 05.11.02003 FIR 664/2003 State Vs. [ENTITY] @Vikas 6/16 regarding some vacancies (Ex.PA). On the basis of said advertisement, he prepared a general application form for applying for the advertised posts. He got the said forms printed on his own and sold them to various persons who asked for the same. 21 PW-9 [ENTITY] deposed that in the year 2003, he had given one room on rent to one person in his property bearing no. S-530, School Block, Shakar Pur, Delhi. No rent agreement was executed. He was not in a position to identify the said tenant.
22 PW-11 [ENTITY] deposed that one [ENTITY] had taken a room on rent in 2003 in his house bearing no. 21/3, Masigarh, Zamia Nagar, Opposite Sukhdev Vihar for 3-4 months and had vacated the same on his own. After two days of vacating his house, police had produced the said [ENTITY] before him and he had identified him as his tenant but now he was not in a position to identify him due to lapse of time. No rent agreement was executed.
23 PW-12 SI [ENTITY] deposed that on 10.12.2003, at about 04.00 PM, SI [ENTITY] had held a meeting at the office of Crime Branch, SIT Section, Amar Colony, Lajpat Nagar which was attended by him, [ENTITY], Ct. [ENTITY] and SI [ENTITY]. They were apprised that one [ENTITY] had made a complaint to DCP Crime Branch that some boys were running a fake company in Tyagi Chamber, Shakarpur near Laxmi Nagar Red light. SI [ENTITY] constituted a raiding party consisting of them. A secret informer also joined them. At about 05.15 PM, they went to Laxmi Nagar Red light where SI [ENTITY] asked 4-5 persons to join the raiding party but none agreed. Thereafter on pointing out of Secret Informer they went to Tyagi Chamber, First floor where accused [ENTITY] was found present. He was interrogated by the IO. Thereafter, office was thoroughly searched. Appointment letters, blank letter heads, rubber stamps, envelopes and carbon copies of the said companies were found which FIR 664/2003 State Vs. [ENTITY] @Vikas 7/16 were seized vide memo Ex.PW-12/A. After sealing them with the seal of DR. IO also took specimen signature of accused [ENTITY] on white paper. IO prepared the rukka and got the FIR registered through [ENTITY]. Thereafter accused was arrested and personally searched vide memos Ex.PW-12/B & C. He also identified the case property i.e. one stamp carrying mark of BICL which is Ex.P-1, one stamp of BATA Group of Companies which is Ex.P-2 and two registers of letter heads of BATA Group of Companies and Reebok Group which are Ex.P-3 & P-4 and the remaining seized articles as Ex.PW-12/A and D. 24 PW-13 Inspector [ENTITY] deposed that on 11.12.2003 he was posted at SIT section crime branch, Amar Colony, Delhi and joined the investigation of the case alongwith SI [ENTITY]. SI [ENTITY] had seized the documents i.e. appointment cum joining letter of Reebok group of companies and visiting card of Tyagi Business Centre from victims which are Ex.PW-13/A. He also proved the document seized from victim [ENTITY] as Ex.PW-13/B and document of [ENTITY] as Ex.PW-13/D. He deposed that IO had interrogated the accused [ENTITY] and recorded his disclosure statement as Ex.PW-13/E. He identified the accused in the Court.
25 PW-14 [ENTITY] AGEQD/ Scientist B, CFSL deposed that the documents of this case were received by his office from the ACP SIT Crime Branch, New Delhi dated 15.06.2005 for examination and opinion. He proved the forwarding letter in this regard as Ex.14/X and X-1. After thorough examination, he came to the conclusion that the red enclosed writings, stamped and marked Q2, Q8, Q9 and SI to S10 have been written by one and the same person. He proved his report no. CX-153/05 dated 29.06.2005 alongwith reasons as Ex.PW-14/Y. He also proved the report of Sh. [ENTITY] with the same conclusion bearing signature of Sh. [ENTITY] at pont B. 26 PW-15 [ENTITY] deposed that on 10.12.2003 SI [ENTITY] received a FIR 664/2003 State Vs. [ENTITY] @Vikas 8/16 secret information regarding cheating of innocent candiditates by some persons in Tyagi Chamber, Shakarpur, Delhi. SI [ENTITY] constituted a raiding party consisting of them. A secret informer also joined them. At about 05.15 PM, they went to Laxmi Nagar Red light where SI [ENTITY] asked 4-5 persons to join the raiding party but none agreed. Accused [ENTITY] was found present in the office. He identified the accused in the Court. He was interrogated by the IO. Thereafter office was thoroughly searched. Appointment letters, rubber stamps of the said companies were found which were seized. IO prepared the rukka and handed over to him for registration of FIR. He got the case registered and returned back to the spot for handing over the copy of FIR and original rukka to IO.
STATEMENT OF ACCUSED 27 Statement of the accused [ENTITY] U/[SECTION] [ACT] has been recorded on 07.06.2019 wherein the entire incriminating evidence produced on record was put to him. He denied all the allegations and stated that he had been falsely implicated in this case and was innocent.
DEFENCE EVIDENCE OF ACCUSED 28 Accused did not examine any witness in his defence . 29 Final argument have been heard. Record carefully perused.
Judicial Resolutions 30 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the FIR 664/2003 State Vs. [ENTITY] @Vikas 9/16 accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 31 In the present case accused has been charged with the offence u/[SECTION] [ACT]. The offence of cheating is defined u/[SECTION] [ACT]. The following ingredients are required to be proved for convicting a person for the offence of cheating.
i. Deception of any person.
ii. (a) Fradulently or dishonestly inducing that person:
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property, or
(b) 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.
32 In [PRECEDENT], it has been held that the [ACT] defines 'fradulently', an adjective form of the word "fraud", in [SECTION], as follows : "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
33 The term "fraudulently" is mostly used with the term "dishonestly"
which is defined in [SECTION] as follows: "Whoever does anything with the intention of causing wronglful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not by itself made an offence under the [ACT], but various acts when done fraudulently (or fraudulently and dishonestly) are made offences.
34 In Devender Kumar Singla v. Baldev Krishan Singla, (SC) 2004 FIR 664/2003 State Vs. [ENTITY] @Vikas 10/16
(2) J.T.539 : 2004 Cri.L.J. 1774, it has been observed that, " [SECTION] 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. [SECTION] defines "cheating". 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. Deception of any person is common to the secoond and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. 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. Deception is the quintessence of the offence. The essential ingredients to atract [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. The making of a false representation is one of the ingredients for the offence of cheating under [SECTION], (also in [PRECEDENT]."
35 It was also observed in [PRECEDENT] that it is necessary that a false pretence should be made in express words by the accused. It may be inferred from all the FIR 664/2003 State Vs. [ENTITY] @Vikas 11/16 cirucmstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.
36 In another judgment [PRECEDENT], the Hon'ble Supreme Court of India held as follows:-
" As mentioned above, [SECTION] has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in [PRECEDENT], a guilty intention is an essentila ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating "mens rea"
on the part of that person, must be established. It was also observed in [PRECEDENT], that in order to consitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.
37 In addition to cheating, the accused is also charged for offence u/[SECTION] & [SECTION] [ACT]. [SECTION] [ACT] provides punishment when forergy is committed for the purposes of cheating. [SECTION] [ACT] punishes fraudulent or dishonest use of a forged document as genuine in the circumstances when a person knows or has reason to believe that the document is forged. The term foregry is defined in [SECTION] [ACT] as FIR 664/2003 State Vs. [ENTITY] @Vikas 12/16 per which the essential ingredients for the offence of forgery are:
(1) the document or part of the document must be false; (2) it must have been made dishonestly or fraudulenty in one of the three modes specified in [SECTION] [ACT]; and (3) it must have been made with intent :
(a) to cause damage of injury to the public or any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property: or
(d) to cause any person to enter into an express or implied contract; or
(e) to committ or that fraud may be committed.
38 [SECTION] [ACT] provides that a person makes a false document if he-
Clasue 1 (1) dishonestly or fraudulent makes, signs, seals or executes a document, or part of a document, or makes any mark denoting gthe execution of a document; and (2) does as above with the intention of causing it to believe that such document or part of a document made signed, sealed or executed,
(a) by or by the authority of a person by whom or by whose aurthority it was not so made, signed, sealed or executed, or
(b) at a time at which he knows that it was not made, signed, sealed or executed Clause 2 This clause reqquires dishonest or fraudulent cancelation or alteration of a document in any material part without lawful authroity after it had been made or executed by a person who may be living or dead.
Clause 3 FIR 664/2003 State Vs. [ENTITY] @Vikas 13/16
This clause requires that a person must fraudulently or dishonestly cause any person to sign, seal, exeucted or alter a document knowing that such persons could not by reason of unsoundness of mind or intoxication or deception knows the contents of the document or the nature of alteration.
39 In the light of the above mentioned provisions of law and decisions of the superior courts regarding the offences / description of offences, for which accused has been charged, let us now examine the evidence that has come on record qua accused [ENTITY].
40 In the present case, the accused has been charged for having cheated various victims by offering them employment in some fake companies and obtaining money from them in lieu of employment. As per the case of the prosecution, the cheating was initiated by way of issuance of an advertisement in various newspapers regarding available vacancies in Companies like RGCL, BICL and Bata Group of Companies and thereby inducing unemployed people to apply for various jobs. In this regard, although prosecution has proved the publication of the advertisement by examining PW-3 who produced the edition of [ENTITY] published for New Delhi (Hissar) dated 05.11.2003 (Ex.PW-3/A) but the prosecution has miserably failed to prove any link between the accused [ENTITY] and printing of the said advertisement. There is no evidence in this regard on record to connect accused [ENTITY] with publication of the said advertisement. Thus, there is no evidence on record to prove that it was actually accused [ENTITY] who had initiated the inducement of innocent public persons.
41 In addition prosecution has examined various victims i.e. PW-1, PW-
2, PW-5, PW-6, PW-7, PW-10 and PW-16. Although, all these witnesses deposed that they had applied for various jobs pursuant to FIR 664/2003 State Vs. [ENTITY] @Vikas 14/16 seeing the advertisement in the Newspaper. But none of them (except PW-16) identified accused [ENTITY] as the person who had ever met them regarding the job vacancies. PW-1, PW-5, PW-7 and PW-10 deposed that when they had gone to the address mentioned in the visiting card/ appointment/ interview letter received by them, they had only met police official. PW-2 & PW-6 deposed that they had met some person and give him money but they failed to identify accused [ENTITY] as the said person. PW-16, on the other hand deposed that he had met accused [ENTITY] and paid him a fees of Rs.2050/- but he failed to provide any receipt of the said amount. He also did not depose about any kind of inducement offered by accused [ENTITY] when he had met him. Interestingly, this witness was never examined by the IO as admitted by him. His statement U/[SECTION] [ACT] or the documents pertaining to him are also not available on record. Thus, it is difficult to rely on his sole testimony when all other victims have failed to identify the accused.
42 Moreover, the IO had miserably failed to collect any evidence to show/ prove that the companies RGCL, BICL and Bata Group of Companies regarding which vacancies were advertised were actually fake companies or were not offering any jobs as advertised. 43 As per FSL result (Ex.PW-14/Y) the sample writing of accused [ENTITY] had matched with 3 documents i.e. Q2, Q8 and Q9. Q2 is an appointment letter issued in the name of [ENTITY] /PW-5. Q8 is a receipt of Rs.940/- issued in favour of [ENTITY]/PW-2 and Q9 is the appointment letter in favour of [ENTITY] /PW-2 of BICL. In none of the other documents, sent to GEQD i.e. Q1 & Q3 to Q7 any opinion has been expressed by the concerned Expert. In order to prove that these documents Q2, Q8 & Q9 were forged, the prosecution was required to proved that they were actually issued without any authority from the respective companies or that no such companies were in FIR 664/2003 State Vs. [ENTITY] @Vikas 15/16 existence in the names of which these documents have been issued. But neither there is any investigation on this aspect nor any evidence brought on record. Moreover, the taking of specimen handwriting of accused [ENTITY] which have been sent for comparison has also not been proved as the IO SI [ENTITY] could not be examined due to his demise and there is no witness attesting the said specimen writings. In these circumstances, mere report of GEQD Ex.PW-14/Y is not a sufficient evidence against the accused for giving a finding of guilt for offences of forgery or cheating against him.
44 In view of the reasons given above and considering the over all evidence on record, I have no hesitation holding that prosecution has miserably failed to prove the offences as charged against the accused [ENTITY] beyond any reasonable doubt. The evidence brought on record is highly insufficient for convicting the accused for the offences charged against him.
45 The accused [ENTITY] is accordingly acquitted for offence u/[SECTION] [ACT] as charged against him.
ANNOUNCED IN THE OPEN COURT SHIVALI Date: ON 20.06.2019 SHARMA 2019.06.20 15:19:47 +0530 ([ENTITY]) CMM (EAST)/KKD/ 20.06.2019
Certified that this judgment contains 16 pages and each page bears my signatures.
([ENTITY]) CMM (EAST)/KKD/ 20.06.2019 FIR 664/2003 State Vs. [ENTITY] @Vikas 16/16