1 CC No.431 of 2016
IN THE COURT OF THE XII ADDITIONAL CHIEF JUDICIAL
MAGISTRATE : AT: HYDERABAD
PRESENT:- SRI. V.ESHWARAIAH,
XII ADDL. CHIEF JUDICIAL MAGISTRATE,
HYDERABAD
THURSDAY, DATED THIS THE 10 th DAY OF OCTOBER, 2024
C.C. No. 431 of 2016
BETWEEN: The State of Telangana Rep. by the Asst. Commissioner of Police, P.S.WCO Team-VII, CCS, DD, Hyderabad. …. Complainant
AND
Neeraj Kumar Sharma @ Neeraj, S/o Late Sriraj Kumar, aged 33 years, Occ: Sr.operation Manager in M/s Sampark India Transport Co, Faridabad. R/o Room No. 2291, Sector-9, Faridabad, Haryana State. N/o Sidhmugh(v), Rajgarh Tq, Churu Dist, Rajasthan state. …… Accused
This case coming before me for final hearing on 30.09.2024 in the presence of Sri. G Raghavendra, the learned Assistant Public Prosecutor for the Complainant/State and of Sri J. Prabhakar Rao, Advocate, the learned counsel
for the accused and the matter having stood over till this day for consideration and
this court delivered the following:-
:: J U D G M E N T ::
1. The then Inspector of Police, PS WCO Team-VII, CCS, DD, Hyderabad, filed charge sheet in Crime No.107 of 2016 for the offences punishable U/s 406 and 420 of IPC against the accused.
2. The brief allegations in the charge sheet are as follows:--
(i) That on 01.03.2016, the LW1-Sushil Prasad @ Yadav, def-complainant filed a police report before the Habeeb Nagar PS stating that he is the Manager of
DHTC India Ltd, a Kolkata based company having its branch office at Door No.
11-1-172/9/5, Bhoiguda, Hyderabad and their company is logistic outsource 2 CC No.431 of 2016 company, mainly engaged in transport of freight for various industries. Sri Neeraj
Kumar Sharma (who is accused herein) is an employee of their company working as Marketing Executive from July 2015 and he used to get work relating to transport of freight from various companies, engage vehicles relating to the work and get advance from their company for completion of work and raising bills on behalf of their company and receiving payment in relation with the said work from the company. The accused raised bills for advance through alleged email ID:
neerraj.hyd@hdtcindia.com from the account department at Kolkata, saying tht he got work from various industries and took advance fromtheir company for which payment has been paid into various accounts given by him. He also filed receipts from the industries with stamps stating that the work has been completed, but their company did not get any payment from the Industries even after completyion of the work and when the company asked the accused, he often gave various reasons for the delay in payment.
(ii) The LW1 further stated that, he was directed by the Head Office to look into the matter and on enquiry with the Industries which were due, he was shocked to find that the Industries have not given any work order to their company and all the works as stated by the accused is just for raising money and using it for his own purpose and all the alleged documents such as LRs(Consignment Note),
Challans, bills, etc are fabricated by the accused along with others to extort money from the company. It is further came to know that the accused and others have embezzled huge amount from their company. Hence police report.
3 CC No.431 of 2016
(iii) Basing on the contents of above report, the LW19-Ch.Vijay Krishna, the the SI of Police, PS Habeeb Nagar, registered a case in Cr No.50 of 2016 U/s 473, 468, 420 and 408 of IPC and took up for investigation. During the course of investigation the LW19 examined and recorded the statement of LW1 and LW2-
Ramesh Indoriga. Thereafter, as per instructions of superior officers, the LW19 transferred the CD file to CCS, DD for further investigation.
(iv) Accordingly, on 05.05.2016 the LW21-Mohd Jaffar, the the SI of
Police, CCS, DD, Hyderabad, re-registered the above case in Cr No. 107 of 2016 for the same offences and handed over the CD file to LW22-K.M.Kiran Kumar, the then Inspector of Police, CCS, for further investigation. During the course of investigation, the LW22 re-examined the LW1 and LW2 and also examined and recorded the statements of LW3-O Venkataswamy Nagarju and LW4-Shaik Ilahi
Fakruddin. Thereafter the LW22 deputed his team I..e LW20-S Srinivas Rao, the then SI of Police, PS CCS to New Delhi to apprehend the accused. Accordingly the LW20 apprehended the accused on 18.07.2016 and where the LW20 interrogated the accused who confessed his guilt in commission of offence and accordingly the LW20 secured the presence of two mediators/LW15-Pramod
Kumar and LW16-Subhash Sharma and seized the Carbon Cell phone, three debit cards under cover of panchanama and produced before the concerned court and obtained transit warrant. On transit warrant the LW20 brought the accused to
Hyderabad and produced before the LW22. Accordingly the LW22 interrogated the accused and the accused admitted his guilt in commission of alleged offence 4 CC No.431 of 2016 and after completion of all legal formalities the LW22 produced the accused
before the court for judicial remand. Thereafter the LW22 took the accused for
police custody and where the LW22 recorded further confessional statement of the accused. In pursuance of such confession, the LW22 examined other relevant witnesses and seized the rubber stamps which used to attest the fake & forged LR
Bills acknowledgment and also seized cash of Rs. 2,55,000/- from the possession of the LW8-H Haibath at the instance of the accused. After completion of investigation the LW22 filed charge sheet against the sole accused for the offences
U/s 406 and 420 of IPC.
3.This court took cognizance the offence U/Sec 406, 420 and 473 of IPC against the accused. The copies of the documents were furnished to the accused as required U/Sec.207 of Cr.P.C. Thereafter the accused was examined U/Sec.239 of
Cr.P.C. for which they pleaded not guilty and claimed to be tried for the offences
U/Sec 406, 420 and 473 of IPC. Hence charges for the above offences were framed and read over and explained to the accused in vernacular language.
4.In order to bring home the guilt of the accused, the prosecution examined
PWs.1 to PW18 and the documents under Exs.P-1 & P-40 are marked. No witnesses were examined and no documents were marked on behalf of the accused.
5 CC No.431 of 2016 5.After closure of the prosecution evidence, the accused examined U/Sec.313 of Cr.P.C. with reference to the prosecution evidence appeared against the accused, for which the accused denied the incriminating evidence and reported no defense evidence.
6.Heard the arguments from both sides and perused the entire case record including Memorandum of written arguments filed by the learned counsel for the accused and the same is made as part and parcel of the case record.
7.Now the point for determination is:-
Whether the prosecution proved its case beyond reasonable doubts for the offences punishable U/Sec. 406, 420 and 473 of the IPC against the the accused Nos.2 and 3 ?
8. POINT:- It is the case of the prosecution that the accused being the
Marketing Executive of PW1’s company, created fake and forged documents such as Lrs(Consignment Note), Challans, Bills and etc and raised bills in advance through alleged email ID-neerraj.hyd@dhtcindia.com from the accounts department of PW1’s company, situated at Kolkata by preparing fake rubber stamps and filed the receipts of various Industries by his attesting to believe that he completed the work order and thus he embezzled huge amount of Rs. 8.47 lakhs and misappropriated the same by cheating his company.
6 CC No.431 of 2016 9. The prosecution examined and relied upon the evidence of PW1 to PW18.
PW1-Sushil Prasad @ Yadav, is the def-complainant in this case. PW2-Onkamalla
Venkatswamy Nagaraju @ Raju, PW3-Shaik Ilahi Fakruddin, PW4-Shaik Abdul
Ghani, PW5-Avinash Singh, PW6-H Haibath @ Bibhat, PW7-Veer Singh, PW8-
Aviti Prabhu, PW9-Sana Prabhu Raidu, PW10-Ramesh Killari, PW11-Dalveer
Singh and PW14-T Giridhar are the circumstantial witnesses in this case. PW12-K
Durgananad, PW13-R Ravichand are panch witnesses. PW15-Ch Vijay Krishna,
PW16-Mohd Jaffar, PW17-S Srinivas Rao and PW18-K.M.Kiran Kumar are the investigation Officers in this case.
10. In order to prove the case of the prosecution for the offences U/s 406, 420 and 473 of the IPC, the prosecution has to prove the following essential ingredients.
Section 406 of IPC:-
1. The accused must be entrusted with property or with the dominion power over that property,
2. The person entrusted must dishonestly misappropriate or converted the property for his own use.
3. The person entrusted dishonestly used for dispose of the property or willfully suffer any person to do so.
Section 420 of IPC:-
1. A person must commit the offence of cheating under section 415 of IPC,
2. the accused cheated must be dishonestly induced to
3. deliver property to any person; or make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security, 7 CC No.431 of 2016
Section 473 of IPC:-
1. the accused making or possessing counterfeit seals, plates, etc. with the intent to commit a forgery.
11. In order to prove the case of the prosecution, the prosecution mainly examined and relied upon the evidence of the def-complainant/victimized company/PW1-Susheel Prasad who is Manager of DHTC Transport Company.
According to him, the accused worked as Senior Operation Manager in the company and their company is a logistic outsource company mainly engaged in
Transport of goods to various industries. PW1’s work is to supervise the work of transportation at Hyderabad. One Raju was assisting him in the company. In
July,2015, the accused was appointed in their company as marketing Executive and he was introduced to the company by LW.2-Ramesh Indoriga. The nature of work of the accused was to get transport orders from other shops and to collect the advance amounts for executing the transport work. The company has issued a mail id to the accused viz., neerraj.hyd@dhtcindia.com for using in the works relating to the company. The accused used to raise false orders on the names of fictitious persons and used to collect the amounts from the company for lifting the stocks for those persons under false orders and that the accused created false orders in the names of 1) Gangotri Turbotech Engineering Company, 2) Target equipments, 3)Alpala India Pvt. Ltd 4) Metacraft Farming industry 5) Hanson
Infrastructure pvt. Ltd and furnished false names viz.,Veer Singh Premia, Hibath, 8 CC No.431 of 2016
Poonam Logistics etc and obtained amounts from their company and got deposited in his own accounts. Though the accused received amounts from the company, he did not transport any goods and did not remit the transport amount to the company. The accused used to create false lorry receipts and after certain period used to put stamp of the fictitious companies on the reverse of the said L.Rs to show that the goods of those fictitious companies were transported and used to collect amounts from the company under the guise of transporting the above goods. When enquired with those companies whose goods were alleged to have been transported by the accused, then PW1 came to know that they did not book any orders from their transport and their goods were not at all transported. When the said fact was came to know to the company, accused absconded and Thus the accused misappropriated an amount of Rs.8.5 lakhs and above. PW1 further deposed that all delivery copies and bill were prepared by the accused and without delivering goods and shown that the accused engaged lorries from the DHTC and drawn the amounts and misappropriated the same.
12. In order to further prove the case of the prosecution, the prosecution examined and relied upon the evidences Circumstantial witnesses i.e. PW2 to
PW11 and PW14. The PW2-O. Venkata Swamy Nagaraju, deposed that he had been working as clerk in DHTC India Ltd since 2014 and the DHTC is a transport business company. PW1 was Manager of DHTC, Hyderabad and he used to attend loading and unloading work. PW3 used to attend labour work. The accused joined 9 CC No.431 of 2016 in their company as a Marketing Manager and he was resident of Patancheruvu and secured money from the company through online for lorry transport. The company did not receive any bills towards the amount received by the accused.
Then PW1 and accused went to the office of the persons who placed orders for transportation and came to know that those persons did not place any order and the accused submitted bills with false stamps and seals in their office and misused the company amounts. Further, the PW3-Shaik Ilahi Fakruddin deposed that he had been working as labour head in DHTC transportation company. He know that the accused who worked as a Marketing Manager and also came to know that the accused received money from the company for the purpose of transportation but the accused did not do any work. PW5-Avinash Singh deposed that he know the accused person as they both worked in TCI (Transport Corporation of India) during the period from 2005 to 2011. PW5 worked in Kukatpally branch and the accused worked in Pantancheruvu branch. PW5 opened new transport company in the year 2011 under the name and styled as Siva Sai Transport and while he was running Siva Sai Transport, the accused was working in Delhi & Haryana
Transport, situated at Patancheruvu, Sanga Reddy dist. PW5 is having bank account with ICICI Bank, Quthubullahpur branch and the accused requested PW5 to furnish ICICI Bank account details to deposit cash in his account as his bank account was having some problem. Accordingly PW5 furnished bank account number to the accused and thereafter an amount Rs.2,36,500/- was credited to his account and PW5 withdrawn the amount from his account and handed over the 10 CC No.431 of 2016 same to the accused and thee said amount was pertaining to the advance of lorry transport.
13. Further PW7-Veer Singh, another circumstantial witness, deposed that he know the accused who worked previously in Transport Corporation of India. PW7 joined in the company as Assistant and by the time, the accused was also working as Assistant. In the year 2010 PW7 left his job in TCI. The accused was transferred to Bangalore branch and after ten months, he again came to
Pantancheruvu branch and at that time the accused was not in that company. Later the accused also transferred to Pantancheruvu. In the year 2015/ 2016, on one day, the accused transferred Rs.30,000/- to his account from another account. Later the accused went to him and collected said amount of Rs. 30,000/- from him and after registering the case, PW7 was called to the CCS police and he went there and noticed that the accused was in police custody and the accused accepted that he transferred Rs.30,000/- to PW7 and he given back the same to the accused. The police again collected Rs.30,000/- from PW7’s account and the said Rs.30,000/- was credit from one company. The PW11-Dalveer Singh, deposed that he know the accused who worked along with him for a period of 7 years and that the accused used to attend the work of loading and unloading of transport at Chanda
Nagar, BHEL. At the request of accused, PW11 furnished his bank account No.
2149002100010419 pertaining to Panjab National Bank, Pantancheruvu Branch as he is not having bank account, for transfer of amounts. Accordingly, an amount of 11 CC No.431 of 2016
Rs.30,000/- was deposited in his account from Culcutta. Further, PW4-Shaik
Abdul Ghani @ Gani, PW6-Haibath, PW8-P Prabhu, PW9-S Subba Raidu and PW10-R Ramesh who are other circumstantial witnesses, turned hostile and did not support to the case of the prosecution.
14. The PW14-U Giridhar, another Circumstantial witness, deposed that he had been working in ARC Transport, situated Cherlapally and he knows PW7 and accused as they worked in TCI company. The office of the PW14 and the office of the accused are situated simultaneously, due to which the got acquaintance with each other in the year 2009. In the year 2016, the accused went to him when he was in Cherlapally office and requested him to withdraw the cash from his account and the cash will be deposited in his account by his transport persons and that accused further stated that his account was having some problem and for which
PW14 accepted and accordingly somebody deposited Rs.64000/- in his account in two spells and subsequently PW14 withdraw the said Rs.64,000/- from his account and handed over the cash to the accused.
15. In order to prove the case of the prosecution, the prosecution mainly examined and relied upon the evidence of the panch witnesses i.e. PW12 and
PW13. The PW 12- K. Durga Ramdeposed that at about 7 years the police CCS called him to PS, accordingly he went to the police, where the accused was in the custody of the police and the police recorded the panchanama and after recording 12 CC No.431 of 2016 panchanama PW12 put his signatures. Whereas, another panch witness PW13-
Ravi Chand turned hostile and did not support the case of the prosecution even after cross examined by the learned APPO.
16.Coming to the evidence of investigation officers i.e.PW15-Ch Vijay
Krishna, who deposed that he received a police report from PW1, basing on that he registered this case in Cr No. 50 of 2016 U/s 420, 417, 406 of IPC and issued
FIR and took up for investigation and he examined and recorded the statement of
PW1 and LW2 and later transferred the CD file to CCS, DD for investigation as per instructions of superior officers. The PW16-Mohd Jaffar, deposed that he re- registered the same in Cr No. 107 of 2016 for the offence U/s 473, 468, 420 and 408 of IPC and issued FIR and handed over the CD file to PW18, for further investigation. Further,the PW17-B Srinivas Rao, deposed that on 18.07.2016 he apprehended the accused in Delhi as per the directions of DCP, CCS, DD
Hyderabad and produced him before the local PS and where, PW17 recorded the confession panchanama of the accused before the local panchas and seized one
Carbon mobile phone along with sim card, debit cards, ICICI and SBI Bank and produced the accused before the concerned Magistrate and obtained transit warrant and thereafter he brought the accused to Hyderabad on Transit warrant and produced before the PW18 for further action. Whereas, the PW18-KM Kiran
Kumar, deposed that he received the CD file from PW16 along with entire CD file of previous investigation for further investigation. During the course of his 13 CC No.431 of 2016 investigation, PW18 examined and recorded the statements of witnesses. On credible information PW18 deputed the PW15 along with staff to apprehend the accused and they apprehended the accused at Delhi and recovered one Harbour mobile phone and 4 debit cards from his possession in the presence of mediators and produced the before the Patiala House Court, Delhi and obtained transit warrant on 18.07.2016 and produced accused before the PW18 on 20.07.2016. On enquiry the accused confessed the commission of offence. Accordingly, PW18 conducted confession panchanama of the accused in the presence of Ravi Chand and Durga and produced the accused before the court for judicial remand. During the course of his further investigation PW18 obtained police custody of accused from 30.07.2016 to 02.08.2016 and before the same mediators recorded the
additional confession statement of the accused and basing on the confession of
accused PW18 recorded statements of witnesses and at his instance recovered cash of Rs.2,55,000/- from the house of H. Hybath @ Bhibhat/ PW6 and 5 rubber stamps and later in view of the orders of this court in Crl.M.P.No.5233 of 2016 he handed over the seized cash to complainant and after completion of investigation filed charge-sheet.
17.To support the oral evidence of the prosecution, the prosecution also relied upon the documentary evidence under Ex.P1 to P40. Ex.P2 to P22 are various bills and consignment note alleged to be submitted by the accused on fictitious companies and letters addressed by the PW1’s company regarding confirmation of 14 CC No.431 of 2016 due payments. Ex.P1 is certificate U/s 65-B of IE act issued by the PW1 in respect of print outs relating to the present case transactions. Wherein the Ex.P22 is marked to subject to objection. Ex.P23 is authorization letter given to the PW1.
Ex.P24 is appointment letter of the accused. Ex.P25 is resume submitted by the accused, however it does not contain the signature of the accused. Ex.P26 is police report filed by the PW1. Ex.P27 to 31 are relevant portions of statements
U/s 161 of CrPC. Ex.P31/1, Ex.P32, P39 and 40 are admissible portion of confession statement of the accused. Ex.P33 & P34 are signatures of the PW13.
Ex.P35 and P36 are FIRs in this case. Ex.P38 is photograph of seized property.
18. It is the case of the accused that the accused is falsely implicated in this case and that the prosecution has miserably failed to prove the guilty of the accused. Except the oral allegations, no other concrete evidence or documentary evidence were filed before this court. The PW13 and P14 are the employees of the
PW1 company and however they are turned hostile. No material is produced
before this court to prove the seizure from the possession of the accused. No
computer was seizsed from the accused to prove that the alleged emails were sent by the accused. No document is forwarded to FSL. The alleged receipts, challans were prepared by the PW1 itself for the purpose of this case. No document is filed to show that the PW1 company transferred the amounts to the accounts which mentioned in the complaint.
15 CC No.431 of 2016
19. It is observed from the oral evidence of PW1 that the accused used to get transport orders from other shops and used to collect the advance amount for execution of transport work from the PW’1 company. The accused used to raise false orders on the name of fictitious persons and used to collect the amounts from
PW1’s company for lifting the stock for those person under false orders. His evidence further reveals that the accused created false orders in the name of
Gangotri Turbotech Engineering Copany, Targer Equipments, Alpala India P Ltd,
Metacraft farming Industry and Hason Infra-structures P Ltd and that the accused also furnished false names and obtained amounts from PW1’s company and got deposited in his own account though he did not attend any work. His evidence further reveals that the accused created false lorry receipts and used to put stamp of some fictitious companies on reverse of the said LRs to show that the goods of those fictitious companies were transported by the accused and used to collect amounts from the company under the guise of transporting the above goods. When the PW1 enquired with those companies regarding due payments, he came to know that they did not book any orders from their transport and goods were not at all transported and thus the accused misappropriated an amount of Rs. 8.5 lakhs and caused wrongful loss to the PW1’s company.
20.Whereas, the contents of the complaint/Ex.P26 did not disclose the value of misappropriation of amount committed by the accused. However, it is further mentioned therein that the accused raised bills for advance through alleged email 16 CC No.431 of 2016
ID: neeraj.hyd@dhtcindia.com to accounts department at Kolkata stating he got work from various Industries and took advance from the company. To that effect the prosecution placed the email copies under Ex.P22 and certificate U/s 65-B of
IE Act under Ex.P1. On perusal of the mails under Ex.P22 which do not disclose the alleged work orders placed by the accused. Furthermore, Ex.P22 do not contain the signature of the PW1 who issued certificate U/s 65-B of IE Act under
Ex.P1. Furthermore, the Ex.P1 is not issued in accordance with law as there is no date, time and specific description of document and from which mail ID, those mails were printed out from his computer and as such the Ex.P1 and Ex.P22 are not admissible in evidence.
21.On further careful perusal of the Ex.P24, it disclosed that the accused was appointed as Marketing Manager in the month of July 2015, whereas the oral evidence of the PW1 disclosed that the accused worked as Senior Operation
Manager. The PW1 further admitted in his cross examination that their company provided laptop and email ID along with its password to the accused. But in his chief examination the PW1 stated that there is only one computer in his office and its used by the PW1 only. So also the PW2 admitted in his cross examination that no laptops and computers were provided in their office. It is contention of the learned counsel that there is every possibility to aware the password of the accused as it was issued by the company.
17 CC No.431 of 2016
22. No doubt, it is not the case of the PW1 that the accused directly approached him in discharge of his duties and placed fake and fabricated bills before him. So also, his evidence not disclosed that he has informed about the misappropriation of amount committed by the accused to his head office and in turn his head office instructed him to file a case against the accused. The Ex.P23-authorization letter of PW1 also not disclosed the specific act which committed by the accused.
However, on perusal of bills under Ex.P11 to P14, P16 and P17, it observed that those bills were original/copies, raised from the month of September 2015 to
December 2015 and there nowhere mentioned that those bills were prepared basing on the orders placed by the accused through email. Moreover, those bill were signed on behalf of the PW1’s company, but not by the accused.
Furthermore, the complainant filed this complaint on 01.03.2016. Further, the
PW1 also disputing the bills raised under Ex.P5 stating that the accused created those fake bills. But the PW2 admitted in this cross examination that the Ex.P5 contains the signature of the PW1. He further stated that the PW1 and accused together went to the office of the persons who placed the orders for transportation.
Under these facts and circumstances, the evidence of the PW1 is not sufficient to prove the guilt of the accused in the alleged commission of offence and his evidence must corroborated by other evidences either direct or documentary evidence, beyond all reasonable doubts.
18 CC No.431 of 2016 23.The evidence of the PW3 is hearsay evidence, as such his evidence is not helpful to the case of the prosecution. Though the evidence of the PW5 disclosed that he furnished his bank account to the accused and an amount of Rs. 2,36,500/- was credited to his account and the same was withdrawn by him and handed over the accused, but no relevant documentary evidence of bank account statement of the PW5 is filed before this court. He further admitted that his account is current account and per day more than amount of Rs. 1 lakhs cannot be withdrawn. As such the evidence of the PW5 is creating doubt in the mind of the court.
24.The evidence of the PW7 also not disclosing any incriminating against the accused as he stated in his chief examination that the accused himself transferred an amount of Rs. 30,000/- to his account and he gave the said amount to the accused. So also the PW11 not filed any documentary evidence to show that an amount of Rs. 30,000/- transferred his account from Calcutta and he withdrawn the same and handed over the accused. The panch witness/PW12 is employee of the PW1 and he did not state any recovery from the possession of the accused, as such his testimony is not admissible in evidence, in view of Sec 27 of Indian
Evidence Act.
25.So also, the PW14 did not file any documentary evidence to show that an amount of Rs. 64000/- was transferred to his account at the instance of the accused and he withdrawn and handed over the same to the accused. Nothing is prevented 19 CC No.431 of 2016 to the investigation agency in collection of bank statements of the witnesses to prove their oral testimonies. But the reasons for the same are best known to the accused. It is further observed that the bank account statement of the accused is also not filed before this court to show the transactions made by the PW1’s company. The investigation officer/PW18 admitted in his cross examination that he did not investigate as to whether the emails were sent through desktop computer or through laptop and he did not seize the same. He further admitted that the accused email ID and password are provided by the PW1’s company and if any one know the password, they can send the mail to anybody. Admittedly, the seized rubber stamps are not placed before this court and no document has been forwarded to FSL authorities.
26.Though the oral evidence of the PW1 disclosed that he made enquiries with the companies, on whose names the accused raised fake and forged bills, but the investigation officer failed to examine them as to prove the genuinity of the documents under Ex.P3, P5, P7 , P8, P11, P16, P17 , P19, P21. So also, reply letters addressed by those companies to the PW1’s company in respect of letters addressed by the PW1 under Ex.P2, P6, P9, P10, P12 to P15, P12, P18, P20 are also not placed before this court, which are highly fatal to the case of prosecution.
27.It is well settled law that to constitute the offence of cheating, it is not necessary that the deception should be express words, but it may be by conduct or 20 CC No.431 of 2016 implied in the nature of transaction itself. There are two facets of the definition of dishonestly, namely, the intention of causing wrongful gain to one person or wrongful loss to another person. It is enough to establish the existence of one of them conditions and that the law does not require that both should be established.
Before the offence of cheating can be made out it has to be shown that the act
which the person deceived was induced to do by the deception practiced on him caused or was likely to cause damage or harm to that person in body, mind, reputation or property. It is further necessary that the damage or harm in body should be caused to the person deceived, not to anyone else. “ Damage or harm in mind” has not been defined in the penal code, but it is to be presumed that it covers both injury to mental faculties and also mental pain just the same as damage or harm in body would cover wounds or other hurts and also physical pain. Guilty intention is an essential ingredient of the offence of cheating. A guilty intentional which is the essential ingredient indicates the mens rea on the part of the accused which must be established by the prosecution before the accused can be held guilty. Mens rea is an indispensable components of the offence of cheating
U/s 420 IPC. To hold a person guilty of offence of cheating it has to be shown that his intention was dishonest at the time of making the promise. It is necessary for the prosecution to show that the accused had fraudulent or dishonest intention at the time of making the promise. On conjoint reading of the provision of Sec 415 r/w 420 of IPC, it would clearly lead to a conclusion that a fraudulent or dishonest 21 CC No.431 of 2016 inducement on the part of the accused must be at the inception and not a subsequent stage.
28.This court relied upon the judgment of Hon’ble Supreme Court of India in a case between Uma Shankar Gopalika Vs State of Bihar, reported in 2004
LawSuit(SC) 360, wherein the Hon’ble Apex court held that “every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at very inception. If intention to cheat has developed later on, same cannot amount to cheating”.
29.The oral evidence of the prosecution witnesses do not established that the accused induced them and cheated the PW1’s company and there was dishonest intention from the beginning of the transactions by the accused in the absence of corroborative and documentary evidence and there is no mens-rea on part of the accused in view of lack of documentary evidence. In a case between Deepak
Gaba and Others Vs State of UP, the Hon’ble Supreme Court of India , reported in 2023 liveLaw(SC)3, held that A Mere dispute of monetary demand does not attract to the offence of criminal breach of trust.
30. No doubt, sole testimony is enough to connect the accused subject to its cogent, convincing and reliable.Admittedly, no case is filed against the accused in 22 CC No.431 of 2016 respect of forgery. The bank statement of the PW1’s company not filed in this case to show that their company transferred the amounts to the accounts which recommended by the accused under above fake bills.Except the oral evidence of
PW1, there is no other independent and supporting incriminating evidence brought on record to connect nexus between the accused and alleged offences. So also, relevant documentary evidence is not placed before this court to show that the accused induced and cheated the the complainant company and misappropriated amount of Rs. 8.47 lakhs.
31. The PW8 from whose shop, the investigation officer said to have been seized the fake rubber stamps, which used in commission of offence at the instance of accused, is turned hostile and did not supported the case of the prosecution. On the other hand, no seizure report of rubber stamps is placed before this court. More particularly, the IO did not investigate as to verify the genuinity of those stamps with original shop owners. Furthermore, the prosecution failed to produce the above seized rubber stamps before this court during the trial. Under these facts and circumstances, the prosecution has failed to establish the ingredients of section 473 of IPC, beyond all reasonable doubts.
32. The Hon’ble Supreme Court of India in another case reported in 2017(1) ALD (Crl) 5452(SC), wherein the Hon’ble apex court held that “It is a cardinal principle of Criminal jurisprudence that the guilt of the accused 23 CC No.431 of 2016 must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another burden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to accused be adopted. Further, the Hon’ble High Court of
Jharkhand in a case between State of Bihar Vs Reyaz Ahmad wherein it was held that “ this follows from the cardinal principle that the accused is presumed to be innocent unless proved to be guilty by the prosecution and the accused is entitled to be benefit of every reasonable doubt. In criminal cases, the guilt should be proved beyond any reasonable doubt that a reasonable man with ordinary prudence can have. There should be no doubt whether the accused is guilty or not. If there is slightest doubt, no matter how small it is , the benefit will go the accused.
33.For the reasons aforesaid and the facts and circumstances of the case, the oral evidence of the prosecution though proved that the accused worked in the
PW1’s company, but it is not established that the accused caused wrongful loss to the complainant company by raising fake bills. The evidence of the prosecution is not proved that the accused committed cheating, breach of trust by creating fake rubber stamps and as such, it is not helpful to the prosecution, to come to 24 CC No.431 of 2016 conclusion that the accused is having mens-rea and involved in the above stated offences beyond all reasonable doubts. Accordingly the accused is entitled for acquittal on ground of insufficient documentary and direct evidence and lack of essential ingredients of Sec 420, 406 and 473 of IPC.
34.In the result, this court found that the accused is not guilty for the offence under U/Sec. 406, 420 and 473 of IPC and he is acquitted under Section 248(1) of
Cr.P.C. The bail bonds of the accused shall stands cancelled subject to the
Sec.437-A of Cr.P.C. for a period of six months. The unmarked case property deposited vide PI No. 261/2016 i.e. Net cash of Rs. 2,55,000/- was ordered towards interim custody to the PW1 vide Crl M.P No. 5233/2016 dated 05.11.2016 is shall holds good, after expiry of appeal time. The remaining unmarked property i.e. fake rubber stamps are ordered to be destroyed after expiry of appeal time.
Direct typed to my dictation by typist, corrected and pronounced by me in the open Court on this the 10th day of October, 2024.
Sd/-
XII ADDL. CHIEF JUDICIAL MAGISTRATE,
HYDERABAD
APPENDIX OF EVIDENCE
(WITNESSES EXAMINED ON BEHALF OF)
FOR PROSECUTION: FOR ACCUSED:
PW-1: Susheel Prasad, Def-complainant, - Nil - PW-2: O Venkata Swamy Nagarju, Circumstantial Witness, PW-3: Shaik Ilahi Fakruddin, Circumstantial Witness, 25 CC No.431 of 2016
PW-4: Shaik Abdul Ghani, Circumstantial Witness, PW-5: Avinash Singh, Circumstantial Witness, PW-6: Haibath, Circumstantial Witness, PW-7: Veer Singh, Circumstantial Witness, PW-8: A Prabhu, Circumstantial Witness, PW-9: S. Subba Raidu, Circumstantial Witness, PW-10: K Ramesh, Circumstantial Witness, PW-11:Dalveer Singh, Circumstantial Witness, PW-12: K Durga Ram, Panch witness, PW-13: Ravi Chand, Panch witness, PW-14: Y Giridhar, Circumstantial Witness, PW-15: Ch. Vijay Krishna, Investigation Officer, PW-16: Mohd Jaffar, Investigation Officer, PW-17: B Srinivas Rao, Investigation Officer, PW-18: K M Kiran Kumar, Investigation Officer,
EXHIBITS MARKED
FOR PRO SECUTION: FOR ACCUSED:
Ex.P1- Sec 65(B) IE Act Certificate NIL Ex.P2- Letter addressed to M/s Henson Infrastructures Ltd Hyderabad dated 22.02.2016 Ex.P3- Bill of outstanding as on 23.02.2016 Ex.P4- Letter addressed to M/s Henson infrastructures dated 25.01.2016. Ex.P5 - Bills number in 9, Ex.P6-Letter addressed to M/s Target Equipment Machinery, Hyderabad dated 22.02.2016 Ex.P7 - Bill of outstanding dated 23.02.2016 Ex.P8 - Consignment note, destination copies number in 4 Ex.P9 -Letter addressed to M/s Target Equipment machinery
dated 25.01.2016
Ex.P10 - Letter addressed to M/s Metal kraft forming industries Ex.P11 - Bill of outstanding dated 08.09.2015 Ex.P12 - Letter addressed to M/s Metal kraft forming Industries Pashamailaram, dated 17.10.2015 Ex.P13 - Letter addressed to M/s Metal kraft forming industries Pashamailaram, dated 24.09.2015 Ex.P14 - Letter addressed to M/s Metal kraft forming industries Pashamailaram, dated 10.11.2015 Ex.P15 - Letter addressed to M/s Alpla India Pvt Ltd, 26 CC No.431 of 2016
Patancheru, dated 22.02.2016 Ex.P16 - Bill of outstanding dated 23.02.2016 Ex.P17 - Letter addressed to M/s Alpla India Pvt Ltd dated 25.12.2015 Ex.P18 - Letter addressed to M/s Gangotri Thakur Teek Engineering Services Ltd dated 22.02.2016 Ex.P19 - Bill of outstanding dated 23.02.2016 and 29.12.2015 Ex.P20 - Letter addressed to Gangotri Teek services dated 28.01.2016 Ex.P21 - Bills dated 17.02.2016 number in 2, with two deliver copies Ex.P22 - Copies of mails number in 19 Ex.P23 - Authorization letter given to PW1 Ex.P24 - Appointment letter of accused Ex.P25 -Resume (7 sheets) Ex.P26- complaint dated 01.03.2016 Ex.P27 – Relevant portion of Sec 161 of CrPC statement of PW4 Ex.P28 - Relevant portion of Sec 161 of CrPC statement of PW6 Ex.P29 - Relevant portion of Sec 161 of CrPC statement of PW8 Ex.P30 - Relevant portion of Sec 161 of CrPC statement of PW9 Ex.P31 - Relevant portion of Sec 161 of CrPC statement of PW10 Ex.P31/1 – Admissible portion of confession panchanama
dated 21.07.2016
Ex.P32 – Admissible portion of confession panchanama
dated 01.08.2016
Ex.P33 & P34 – Signature of PW13 on panchanama Ex.P35 – FIR in Cr No. 50 of 2016 of PS Habeeb Nagar Ex.P36 – FIR in Cr No. 107/2016 Ex.P37 – Admissible portion of confession cum seizure panchanama Ex.P38 – Photostat copy of seized property Ex.P39- Relevant portion of confession cum seizure panchanama dated 21.07.2016 Ex.P40 – Relevant portion of confession cum seizure panchanam dated 01.08.2016 27 CC No.431 of 2016
MATERIAL OBJECTS
FOR PROSECUTION: FOR ACCUSED:
NILNIL
Sd/-
XII ADDL. CHIEF JUDICIAL MAGISTRATE,
HYDERABAD