Final Order 1

Order Details: Copy  of Judgment
Pdf Text: C.C.NO.24/PW/2019
1
Filed on : 02/01/2019
Registered on : 02/01/2019
Decided on : 22/02/2019
Duration : 0 Y, 1 M, 20 D
Exh. :
IN THE COURT OF THE ADDIL. CHIEF METROPOLITAN MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI.
(Presided Over by S. N. SALVE)
Judgment Under Section 355 of the Code of
Criminal Procedure
(a) The serial & CNR no. of the
case;
: C. C. No. 24/PW/2019
(b) The date of commission of
the offence;
: 23/12/2018
(c) The name of the complainant
(if any);
: The State of Maharashtra
(At the instance of Sahar
Airport Police Station in Crime
No.413/2018)
(d) The name of the accused
person and his parentage
and residence;
: Mrs. Parbati Pokharel
Age : 41 yrs. Occp: Nil
R/o. : Nepal
e) The offence complained of
or proved;
: Under Sections 465, 468, 471,
420 r/w 34 of the Indian Penal
Code.
(f) The plea of the accused and
his examination( if any);
: Accused pleaded not guilty and
claimed to be tried.
(g) The final order; : Accused is acquitted.
(h) The date of such order; : 22/02/2019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Mr. Mangaonkar for accused.
MHMM19-000125-2019
-- 1 of 10 --
C.C.NO.24/PW/2019
2
J U D G M E N T
(Delivered on this 22nd February 2019)
The accused, a Nepali National stands prosecuted for the
offence punishable Under Sections 465, 468, 471, 420 read with 34 of
the Indian Penal Code (For short, the I.P.C.) for having forged
Employment Permit of United Arab Emirates (UAE) and Nepali Foreign
Employment Permit, committed forgery of Employment Permit of UAE
and Nepali Foreign Employment Permit for the purpose of cheating and
further cheated the immigration authority and used Employment
Permit of UAE and Nepali Foreign Employment Permit as genuine
knowing the same to be forged.
2. The prosecution case, in a nutshell, is that on 23/12/2018,
the informant Mr. Mantoshkumar Pandey, was performing his duty as
Immigration Officer in the Departure Wing of Immigration at
Chhatrapati Shivaji Maharaj International Airport, Mumbai (CSMIA).
On that day, the accused was intending to travel to Dubai by Flight
No.9w536 scheduled at about 11.50 hrs. She approached counter
No.36 for immigration clearance. On scrutiny of her passport and travel
documents, the informant, Mr. Mantoshkumar Pandey Immigration
Officer raised doubt about Employment Permit of UAE and Nepali
Foreign Employment Permit. He, therefore, referred the accused to
Wingincharge, Mr. Divakar Singh. Wingincharge Mr. Diwakar Singh
checked the said Employment Permit of UAE from the website of UAE
Government and it was found that it was Tourist Visa. As Employment
Permit of UAE and Nepali Foreign Employment Permit were fake, the
informant Mr. Mantoshkumar Pandey, Immigration Officer lodged FIR
with Sahar Police Station, Mumbai.
-- 2 of 10 --
C.C.NO.24/PW/2019
3
3. On the basis of FIR, Crime No. 413/2018 was registered
against the accused for the offence punishable under sections 465, 468,
471, 420 r/w 34 of the I.P.C. PSI Ganesh Jain carried out the
investigation of the crime in usual manner. During the course of
investigation, he made correspondence with Nepal Embassy for
verification of genuineness of Employment Permit Sticker. He also sent
letter to Section Officer, Ministry of External Affairs, CPV Division, New
Delhi for genuineness of permit sticker of UAE and Nepali Employment
Permit. On completion of due investigation, he submitted chargesheet.
4. I framed charge (Exh.2) against the accused for the offence
punishable under sections 465, 468, 471, 420 r/w 34 of the IPC. It was
read over and explained to her in vernacular to which she pleaded her
innocence and claimed to be tried. The statement of accused under
section 313 of the Code of Criminal Procedure is recorded after the
witnesses for the prosecution have been examined. Her defence is that
of total denial and false implication in the crime.
5. The points for determination along with my findings with
reasons thereon are as follows :
Sr.
No.
Points Findings
1 Does the prosecution prove that the accused forged
Employment Permit of UAE and Nepali Foreign
Employment Permit ? No.
2 Does it further prove that the accused committed
forgery of Employment Permit of UAE and Nepali
-- 3 of 10 --
C.C.NO.24/PW/2019
4
Foreign Employment Permit for the purpose of
cheating ?
No.
3 Does it further prove that the accused used the
forged Employment Permit of UAE and Nepali
Foreign Employment Permit which she knew to
be forged?
No.
4 Does it further prove that the accused cheated the
informant Mantoshkumar Pandey, Immigration
Officer by fraudulently obtaining Employment
Permit of UAE and Nepali Foreign Employment
Permit ?
No.
5 What order ? The accused is
acquitted.
R E A S O N S
6. In order to further its case against the accused, the
prosecution has examined three witnesses. They are, the informant
Mantoshkumar Pandey, Immigration Officer (PW1) at Exh.4, Wingin
charge Diwakar Singh (PW2) at Exh.16 and I.O. PSI Jain (PW3) at
Exh.17.
Point Nos. 1 to 4 :
7. All the points are dealt with simultaneously so as to avoid
repetition of discussion of evidence which is common for all these
points and also the facts involved in the decision of these points are
such that as can with advantage be discussed together.
8. The informant Mr. Mantoshkumar Pandey, Immigration
Officer (PW1) deposed that on 23/12/2018 he was performing his duty
at CSMI Airport at Departure as a Counter Officer. One that day,
accused was intending to travel to Dubai by Flight No. 9W536. He
further deposed that on scrutiny of her Passport and travel documents,
he raised doubt about Employment Permit of UAE and Nepali Foreign
-- 4 of 10 --
C.C.NO.24/PW/2019
5
Employment Permit, visa paper. He, therefore, referred the accused to
Wingincharge Divakar Singh (PW2) checked the said Employment
Permit of UAE, it was found that it was Tourist Visa. He further deposed
that when the said permit was checked from www.dofe.gov.in, the
official website of UAE Government, no data was available. His further
evidence shows that Wingincharge, Diwakar Singh (PW2) recorded
the statement of accused who in her statement disclosed that she by
paying consideration of Rs. 80,000/ to agent by name Kali Didi
procured Employment Permit of UAE and Nepali Foreign Employment
Permit. In his further evidence, he has proved passport (Exh. 6),
Extracts of Station Diary (Exh.7), and Employment Permit of UAE
(Exh.8), Air Ticket (Exh.9), Insurance Paper of National Insurance
Company, Kanthmadu (Exh.10), Boarding passes from Jaipur to
Mumbai and Mumbai to Dubai (Exh.11 and Exh.12), Print out of
Tourist Visa (Exh.13) downloaded from the website showing that no
deta is available. He has also stated that statement of accused (Exh. 14)
was recorded by Duty Officer, Ramavtar Meena.
9. In crossexamination, he admitted that it is not
mentioned in the Report (Exh.13) that it is downloaded from the
official website. He has also admitted that there is no record that he
checked (Exh.6) from the official record and downloaded the same. He
further admitted that (Exh.8) and (Exh.6) are prepared in Nepal.
10. Immigration Officer, Diwakar Singh (PW2) was
performing his duty as Wingincharge. He deposed that the informant
Mantoshkumar Pandey brought accused to him who was having fake
UAE Employment Permit and Nepali Foreign Employment Permit. He
-- 5 of 10 --
C.C.NO.24/PW/2019
6
further deposed that he checked the said visa and permit from the App.
on his cell phone and he found that it was tourist visa. Then he
recorded the statement of said passenger who disclosed that she by
paying consideration of Rs.80,000/ to agent obtained visa and came to
India. In crossexamination, he stated that he has not placed on record
any authenticate paper showing that the said visa was checked from the
website of Nepal Government. He has also admitted that he has not
made any correspondence with the visa issuing authority of UAE.
11 I.O. Ganesh Jain (PW2) has carried out the
investigation of the crime. He deposed that informant Mantoshkumar
Pandey Immigration Officer (PW1) lodged FIR (Exh.05) that the
accused procured Employment Permit of UAE and Nepali Foreign
Employment Permit. He further deposed that he made correspondence
with Nepal Embassy for verification of genuineness of Employment
sticker and correspondence with Section Officer, Ministry of External
Affairs for genuineness of Permit Sticker of UAE and Nepali
Employment Permit. In crossexamination, he admitted that accused
herself has not prepared Nepali Permit and visa of UAE. There is no
proof in respect of mobile from which visa was checked. He further
admitted that he has not personally checked Nepali Permit from official
website of Nepal viz www.dofe.gov.np.
12 At this juncture, it is necessary to have a glance at the
provisions relating to forgery and making of false documents.
464. Making a false document.—A person is said to make a
false document or electronic record—
First.—Who dishonestly or fraudulently
-- 6 of 10 --
C.C.NO.24/PW/2019
7
(a) makes, signs, seals or executes a document or part of
a document;
(b) makes or transmits any electronic record or part of
any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution or the
authenticity of the digital signature,with the intention of
causing it to be believed that such document or part of
document, electronic record or digital signature was
made, signed, sealed executed, transmitted or affixed by
or by the authority of a person by whom or by whose
authority he knows that it was not made, signed, sealed,
executed or affixed; or
Secondly.—Who without lawful authority, dishonestly
or fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material part
thereof, after it has been made, executed or affixed with
digital signature either by himself or by any other
person, whether such person be living or dead at the
time of such alteration; or
Thirdly.—Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or an
electronic record or to affix his digital signature on
any electronic record knowing that such person by
reason of unsoundness of mind or intoxication cannot,
or that by reason of deception practiced upon him, he
does not know the contents of the document or
electronic record or the nature of the alteration.
13. A close scrutiny of the aforesaid provisions makes it clear
that, Section 463 defines the offence of forgery, while Section 464
substantiates the same by providing an answer as to when a false
document could be said to have been made for the purpose of
-- 7 of 10 --
C.C.NO.24/PW/2019
8
committing an offence of forgery under Section 463 of IPC. Therefore, it
can be safely deduced that Section 464 defines one of the ingredients of
forgery i.e. making of a false document. Further, Section 465 provides
punishment for the commission of the offence of forgery. In order to
sustain conviction under Section 465, first, it has to be proved that
forgery was committed under Section 463, implying that the ingredients
under Section 464 should also be satisfied. Therefore, unless and until
the ingredients under Section 463 are satisfied a person can not be
convicted under Section 465 by solely relying on the ingredients of
Section 464, as the offence of forgery would remain incomplete.
14. If the aforesaid principles are applied to the facts of the
present case, it is seen that there is absolutely no evidence that the
accused obtained Employment Permit of UAE and Nepali Foreign
Employment Permit. It is pertinent to point out here that there is no
official report from the Nepal Government and Government of UAE
stating that Employment Permit of UAE and Nepali Foreign
Employment Permit are fake. In so far as the evidence of prosecution
witnesses in respect of checking from the website is concerned, there is
no evidence to that effect that the said Employment Permit of UAE and
Nepali Foreign Employment Permit were checked from the authenticate
record and accordingly report to that effect was placed on record. It is
also pertinent to point out here that in crossexamination of prosecution
witnesses, it has come on record that the accused herself has not
prepared the Employment Permit of UAE and Nepali Foreign
Employment Permit. There is no investigation in respect of agent who
allegedly procured the Employment Permit of UAE and Nepali Foreign
Employment Permit. In absence of such evidence, it can not be assumed
-- 8 of 10 --
C.C.NO.24/PW/2019
9
that the accused forged Employment Permit of UAE and Nepali
Foreign Employment Permit.
15. The prosecution has also heavily relied upon the extra
judicial confession (Exh. 14) allegedly made by the accused. In so far so
the extrajudicial confession allegedly made by the accused is
concerned, it is pertinent to point out here that the prosecution has not
examined any independent witness before whom the alleged statement
was recorded. So also, there is no evidence that this accused was made
explained while recording the statement as it is in English. There is also
no evidence that the said statement was free from inducement and
coercion. In absence of such evidence, said statement can not be relied
upon. Even if it is proved, it needs support of other supporting evidence.
There is no supportive evidence in the present case such as reports of
the concerned authority that Employment Permit of UAE and Nepali
Foreign Employment Permit are fake.
16. In view of the reasons discussed herein above, it can not be
concluded that the accused fraudulently obtained Employment Permit
of UAE and Nepali Foreign Employment Permit, committed forgery of
Employment Permit of UAE and Nepali Foreign Employment Permit for
the purpose of cheating and further used the said Employment Permit
of UAE and Nepali Foreign Employment Permit as genuine knowing it
to be forged and further cheated the informant Mantoshkumar Pandey,
Immigration Officer (PW1).
17 Taking into account the evidence led by the prosecution
and the reasons discussed herein above, I hold that the prosecution has
-- 9 of 10 --
C.C.NO.24/PW/2019
10
not been able to establish the guilt of accused beyond reasonable doubt.
Consequently, I answer point Nos. 1 to 4 in the negative.
Points No. 5 :
18. In view of my negative findings as to point Nos. 1 to 4,
accused is entitled for acquittal.
In the result, following order is passed:
O R D E R
(i) The accused is acquitted of the offence
punishable under sections 465, 467, 468, 471
and 420 of the Indian Penal Code under section
248 (1) of the Code of Criminal Procedure.
(ii) She is in Jail. She be released forthwith if
not required in any other crime.
(iii) She shall furnish personal bond of Rs.
10,000/ and surety of like amount under
section 437A of the Code of Criminal
Procedure for a further period of six months.
(iv) The seized Nepali Passport be returned to
the accused and other travel documents be
destroyed after the appeal period is over.
Date : 22/02/2019
sd/
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
Dictated on : 22/02/2019
Transcribed on : 22/02/2019
Signed on : 22/02/2019
ASD.
-- 10 of 10 --