HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.471 of 1997. Decided on: September 10, 2010. State of H.P. …Appellant. VERSUS Subhash Sharma ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal, Dy.A.G. with Mr.J.S.Rana, Asstt.A.G. For the respondent: Ms.Kiran Dhiman, Advocate. R.B.Misra, Judge (Oral) Ms.Kiran Dhiman has been requested to assist this Court as amicus-curiae and she has agreed for the same. The documents are being provided to her. 2. The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 2nd April, 1997, passed by learned Chief Judicial Magistrate, Kangra at Dharamshala, H.P., in Criminal Case No.63-II/95 (RBT 37-II/95), thereby Whether the reporters of the local papers maybe allowed to see the judgment? …2… acquitting the respondent / accused Subhash Sharma for offence under Sections 420, 467, 468, 471 read with Section 34 of the Indian Penal Code. 3. The criminal case, above mentioned, was tried by learned Chief Judicial Magistrate against two accused persons, namely, Rohani alias V.K.Jain and present respondent / accused, namely, Subhash Sharma. Respondent / accused Rohani alias V.K.Jain was declared proclaimed offender and no verdict was given against him and respondent / accused herein has been acquitted for the aforesaid offence. 4. The prosecution case, in brief, was that respondents / accused Rohani alias V.K.Jain and Subhash Sharma were allegedly involved in the aforesaid offence for cheating Ramesh Kumar, Sanjeev Kumar, Shankar, Sarvan and Karam Chand by dishonestly inducing them to deliver a sum of Rs.36,050/- on the pretext of providing them employment in a mill not in existence and they also forged certain documents purporting to be valuable security with an intent to extract money on the pretext of giving employment in a mill. On inquiry, both the accused were held guilty of the aforesaid offence, as such, they were tried by the learned Chief Judicial Magistrate. 5. In order to prove its case, the prosecution has examined as many as nineteen witnesses, …3… whereas, the respondent / accused, through his statement under Section 313 Cr.P.C., has denied the prosecution case. 6. On close scrutiny of evidence on record, the prosecution has relied upon the testimony of Ramesh Chand (PW-1) who has stated that in November 1994 Pappu Sharma disclosed him that Agro Chemical Mills Ltd. was going to be opened shortly at Palampur and they could apply for employment in that Mill and could get job, as such, Pappu Sharma came to Sanjeev and Shankar. Pappu Sharma then went to Palampur and met respondent / accused Subhash Sharma in Mount View Hotel at Palampur. Respondent Subhash Sharma introduced himself as Superintendent, they enquired about the employment and then respondent Subhash Chand demanded Rs.5000/- along with Himachali bona-fide certificate and the victims were asked to pay Rs.2500/- as advance and after some time to pay the remaining amount. Subsequently, on 10th they again went to Palampur and paid Rs.2500/- to respondent Subhash Chand and they also gave certificates, on which the respondent issued appointment letters asking them to report at Dehan on 26th, as such, the respondent hired a taxi and showed them a big plot of 25 Kanals allegedly having purchased for the construction of Mill. Respondent / accused Subhash …4… Sharma purchased a register and marked their presence from 26th to 31st and took back the original appointment letters and did not issue any receipt of Rs.5000/- received from the victims. When the victims demanded wages, the respondent promised for the payment on 9th January, 1995 at Baijnath, who in turn, did not visit Baijnath on the date given. PW-1 Ramesh Chand lodged F.I.R. at Police Station, Palampur and the respondent was arrested. 7. PW-2, Pappu Sharma, has stated that he paid Rs.10,000/- to respondent Subhash Sharma to get employment but no receipt was given to him and when he intended to contact the respondent during his stay at Mount View Hotel, the respondent was already arrested. PW-2 has further stated that Ramesh Chand, Baldev, Sanjeev Kumar, Rakesh Kumar etc. had also given Rs.2500/- each to respondent before getting the appointment letters 8. PW-3 Krishan Singh has stated that on 6th November he gave a sum of Rs.2500/- and certificate to respondent Subhash Chand to get job and on 13th November, 1994 again he went to respondent and paid a sum of Rs.2500/-, thereafter, appointment letter was issued by the respondent indicating that the victim was to join on 26th December, 1994 at Palampur and accordingly his presence was marked on …5… the register from 26th to 31st December, 1994. The respondent / accused Subhash Chand assured PW-3 that on 3rd January his Manager will visit Palampur and after taking his interview, the original appointment letter will be issued and called him to Baijnath on 9th January, 1995 for getting payment of wages but the respondent did not come to Baijnath on that date and on 11th January, 1995 when he visited Palampur, he came to know that the accused was already arrested. 9. PW-4, Shankar Ram, has also made similar complaint having paid a sum of Rs.5000/- in two instalments of Rs.2500/- each to respondent for getting the appointment but he was also cheated. 10. PW-5, J.C.Katoch, Advocate Palampur, has stated that accused V.K.Jain had taken his house at monthly rent of Rs.600/- for opening his office where he had displayed one board inside the window but in the first week of December, the board and files were found missing from the office and only chairs were lying in the office, therefore, he put lock in the room. 11. PW-6, Partap Singh, the owner of Mount View Guest House, has stated that on 13.9.1994, respondent / accused Subhash and one other person came to his guest house and took one room on rent at the rate of Rs.25/- per day and had entered his …6… visit in hotel visitor register at Sr.No.394 Ext.PW-6/A. PW-6 has further stated that two other persons left the room while respondent Subhash remained in the Guest House for seven days where accused Rohini alias V.K.Jain used to come. 12. PW-7, Madan Gopal Sharma, owner of Ajudhya Guest House, Palampur has stated that on 25.10.1994 at about 7 P.M. accused V.K.Jain took a room regarding which he made entry in his register at Sr.No.90 at Page 64, the photocopy of which is Ext.PW-7/A. Respondent Subhash Sharma stayed in his Guest House till 26th October, 1994. 13. PW-8, Rakesh Kumar, has stated that respondent Subhash Sharma posed himself as Supervisor of Agro Chemical Mills Ltd. and Pappu (PW-2) told him that a shop and canteens are being opened in the Mill and when PW-8 and Pappu met respondent Subhash Sharma, on whose demand, Rs.8000/- was paid to respondent Subhash on 19th December, 1994 but no receipt was given to him. 14. PW-9, Satish Kumar, has stated that he runs cloth shop at Palampur and about 2 ½ years back, Bhubnesh Sood came to him and told that some people of Oswal Mill had come to purchase land and then he, along with Bhubnesh Sood, went to hotel Mount View, where, respondent Subhash met them and told that Oswal Woollen Factory needs land upon which he …7… showed land and the respondent demanded Tatima of the same. PW-9 got procured tatima Ext.PW-9/A and Jamabandi Ext.PW-9/B and for price, respondent Subhash told that his General Manager will finalize the deed and thereafter General Manager came after ten days and then the land was shown to him who also told that after settlement, they will inform them. However, no contract was entered into with the respondent / accused. 15. PW-10, Karam Chand, has stated that he runs a private institute of Stenographers at Palampur, where, accused V.K.Jain visited to the institute in 1994 and told that he wants one Steno-typist and disclosed that his office was in the house of J.C.Katoch. PW-10 went to his office after three days, upon which, the accused demanded Rs.5000/- as security for the service. 16. PW-11, Dharam Pal and PW-12, Dharam Chand, were the victims of accused Subhash Sharma and V.K.Jain. PW-13, Inspector Gulab Singh, has stated that on completion of investigation, he prepared the challan and presented the same in the Court. PW-14, HC Swami Ram, PW-15 HC Manohar Lal and PW-16 Onkar Sharma, Patwari, while discharging their official duties, have supported the prosecution case to the extent the role assigned to them. …8… 17. PW-17, Kartar Chand, had produced the entire record of hotel Pines, Palampur and entry of accused V.K.Jain regarding his stay. PW-18, HC Vishwas Kumar, the Investigating Officer of the case, has investigated the case F.I.R. No.24/95 dated 11.1.1995, entrusted to him by SHO, Police Station, Palampur and he arrested respondent / accused Subhash Sharma on 12.1.1995 in Mount View Hotel, Palampur and bag of the respondent was handed over to him by the owner of the Hotel and on checking, two letter pads Ext.P-1 and Ext.P-2, tatima Ext.PW-16/B, one night suit (coca cola colour) Ext.P-3, one safari suit Ext.P-5, one pent and shirt Ext.P-6 etc. were recovered. 18. On appraisal of material on record, it is clear that the prosecution tried to establish on record that respondent / accused Subhash Sharma posed himself to be Senior Supervisor of Oswal Agro Mills Ludhiana while accused Rohini alias V.K.Jain posed himself to be the Manager of the said firm. They both propagated that Agro Chemical Mills Ltd. would be commissioned shortly at Dehan near Palampur for which employment to youth of Palampur would be given, as such, respondent / accused Subhash Sharma collected money from the victims / aspirants. Respondent / accused Subhash Sharma collected a sum of Rs.5000/- each as security from …9… Ramesh Chand (PW-1), Pappu Sharma (PW-2), Krishan Chand (PW-4), Shankar Ram (PW-5) and a sum of Rs.9100/- as the highest tenderer from PW-8 Rakesh Kumar to give the contract of canteen of Mill. 19. From the scrutiny of testimonies of prosecution witnesses and materials on record, we find that only interested persons have allegedly been cheated and no independent witness was examined by the prosecution. PW-1 to PW-4 are not consistent regarding giving of Rs.2500/- to respondent / accused Subhash Sharma. From the testimony of prosecution witnesses, nothing has been brought on record that instead of misrepresenting that respondent / accused Subhash Sharma was Senior Supervisor of Agro Chemical Mills Ltd., Ludhiala, documentary record was neither procured nor presented. It is also being noticed that the victims were having the knowledge that the forged documents, which were prepared by respondent / accused, on the basis of which the employment was to be given to them. In the facts and circumstances, except allegations, documentary evidence could not be brought on record to prove that the victims had been cheated. In absence of conclusive proof, the ingredients of Sections 420, 467, 468, 471 read with Section 34 of the Indian Penal Code cannot be said to have proved. In our …10… considered view, the prosecution has miserably failed to bring home the guilt to the respondent / accused, as such, without expressing anything on merits of the case of Rohani alias V.K.Jain, we are only making our observations that the learned Chief Judicial Magistrate vide impugned judgment 2nd April, 1997 has rightly found the prosecution has failed to prove its case beyond reasonable doubt against respondent / accused Subhash Sharma. The criminal appeal, being devoid of any merit, is accordingly dismissed. Bail bonds, furnished by the respondent, are hereby discharged. 20. Before parting with the judgment, we wish to give our words of appreciation to Ms.Kiran Dhiman, Advocate for rendering assistance as amicus curiae. (R.B.Misra), J. September 10, 2010. (V.K.Sharma), J. (soni)