Final Order 1

Order Details: Copy  of Judgment
Pdf Text: C.C.NO.91/PW/2019
1
Presented on : 07/01/2019
Registered on : 07/01/2019
Decided on : 02/04/2019
Duration : 0 Y, 2 M, 25 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. 91/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.412/2018)
(d) The name of the accused
person and his parentage
and residence;
: Miss Bipna B.K. D/o Khale Kami
Age : 21 yrs. Occp: Nil
R/o. : Nepal
e) The offence complained of
or proved;
: Under Sections 465, 468, 471
and 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; : 02/04/2019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Mr. Mangaonkar for accused.
MHMM19-000293-2019
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J U D G M E N T
(Delivered on this 2nd April 2019)
The accused, 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 Nepali
Foreign Employment Permit and Employment Visa paper of United Arab
Emirates (UAE) and committed forgery of Nepali Foreign Employment
Permit and Employment Visa paper of UAE for the purpose of cheating
and further cheated the Immigration Authority and used Nepali
Foreign Employment Permit and Employment Visa paper of UAE as
genuine knowing the same to be forged.
2. The prosecution case, in a nutshell, is that on 23/12/2018,
the informant Police Constable Vinod Pawar was performing his duty
on deputation in Special Branch II with Batch “C” t Chhatrapati Shivaji
Maharaj International Airport, Mumbai (CSMIA). He was assigned duty
of immigration clearance at Counter No. 32. On that day at about 11
hours the accused who was intending to travel to Dubai by Flight
No.9W536 scheduled at about 11.50 hrs approached Counter No. 32
for immigration clearance. On scrutiny of her passport and travel
documents, the informant Vinod Pawar, raised doubt about
genuineness of Nepali Foreign Employment Permit and Employment
Visa paper of UAE. He, therefore, referred the accused to Wingin
charge Mr. Diwakar Singh. Wingincharge Mr. Diwakar Singh checked
the said Nepali Foreign Employment Permit No. 0073912120 from
website www.dofe.Gov.np and it was found that no such Nepali
Foreign Employment Permits were ever issued. So also, Wingincharge
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Mr. Diwakar Singh checked Employment Permit of UAE
No.87069889/204 from the website of UAE Government and it was
found that it was Tourist Visa. As Nepali Foreign Employment Permit
and Employment Visa paper of UAE were fake, the informant Mr.
Vinod Pawar, lodged FIR with Sahar Police Station, Mumbai.
3. On the basis of FIR, Crime No. 412/2018 was registered
against the accused for the offence punishable under sections 465, 468,
471 and 420 r/w 34 of the I.P.C. PSI Ramchandra Yamgar carried out
the investigation of the crime in usual manner. During the course of
investigation, he made correspondence with The First Secretary,
Embassy of Nepal, New Delhi for verification of genuineness of
Employment Permit sticker of the accused. He also sent a letter to
Section Officer, Ministry of External Affairs, New Delhi for verification
of genuineness of UAE Employment Permit Paper of the accused. 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 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 :
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Sr.
No.
Points Findings
1 Does the prosecution prove that the accused forged
Nepali Foreign Employment Permit and
Employment Visa paper of UAE ? No.
2 Does it further prove that the accused committed
forgery of Nepali Foreign Employment Permit and
Employment Visa paper of UAE for the purpose of
cheating ?
No.
3 Does it further prove that the accused used the
forged Nepali Foreign Employment Permit and
Employment Visa paper of UAE which they knew
to be forged?
No.
4 Does it further prove that the accused cheated the
informant Shri. Vinod Ashok Pawar, Immigration
Officer by fraudulently obtaining Nepali Foreign
Employment Permit and Employment Visa paper of
UAE?
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
Vinod Pawar, Police Constable (PW1) at Exh.4, Wingincharge
Diwakar Singh (PW2) at Exh.18 and I.O. PSI Ramchandra Dada
Yamgar (PW3) at Exh.20.
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.
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8. The informant Vinod Pawar, Police Constable on
deputation with Special Branch (PW1) deposed that on 23/12/2018,
he was performing his duty at CSMI Airport at Departure Counter
No.32. One that day, accused, Nepali National came to his Counter, her
profile was low, therefore, he raised doubt. He further deposed that on
scrutiny of her Passport and travel documents, it was found that
Nepali Foreign Employment Permit, tourist visa and Employment Visa
paper of UAE were fake. On enquiry, the accused disclosed that her
father approached one agent and with the help of the said agent
procured visa. Therefore, he handed over the said passenger to Sahar
Police Station and lodged report (Exh.5). In his further evidence, he has
proved Nepali Foreign Employment Permit (Exh.6), Employment visa
(Exh.7), Extract of Station Diary (Exh.8), a document issued by
National Life Insurance Company Kathmandu in the name of accused
(Exh.9), Air Ticket from Jaipur to Mumbai and Mumbai to Dubai
(Exh.10), Boarding passes (Exh.11 and Exh.12), Tourist visa
downloaded from Official website of UAE (Exh.13), Report of Deputy
Manager, Jet Airways to AFFRO (Exh.14). He has also stated that
statement of accused (Exh.15) was recorded by Duty Officer,
Ramavtar.
9. In crossexamination, he admitted that it is not mentioned
in the Report (Exh.19 to Exh.21 ) that it is downloaded from the official
website. He has also admitted that there is no record that he checked
(Exh.6 and Exh.7) from the official record and downloaded the same.
He further admitted that (Exh.13) and (Exh.14) are prepared in Nepal.
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10. Immigration Officer, Diwakar Singh (PW2) was performing
his duty as Wingincharge. He deposed that the informant Shri. Vinod
Pawar brought accused to him who was having fake UAE Employment
Permit and Nepali Foreign Employment Permit. He further deposed that
he checked the said visa and permit from the App on his cell phone and
found that it was Tourist Visa. Then, he recorded the statement of said
passenger who disclosed that she is from Nepal and staying with her
parents in Nepal. She wanted to go to UAE for employment purpose. In
crossexamination, he admitted that only Nepali Government can
comment that the said Nepali Foreign Employment permit is genuine or
fake. He further admitted that only the issuing authority of UAE
Government can comment that the visa paper of UAE is fake. He further
admitted that he has not sought any information from Nepal
Government or UAE in respect of Nepali Foreign Employment Permit
and UAE Employment Permit to be fake or genuine. He further
admitted that there is no link mentioned on the print out. He further
admitted that there is no official proof from UAE or Nepal Government
that Nepali Foreign Employment Permit or Permit of UAE are fake.
11. P.S.I. Ramchandra Yamgar (PW3) has carried out the
investigation of the crime. He deposed that informant Vinod Pawar
(PW1) lodged FIR (Exh.5) that the accused procured fake 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, New Delhi for
verification of genuineness of Employment Permit of UAE and Nepali
Employment Permit. In crossexamination, he admitted that only Nepal
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Government can comment that Nepali Foreign Employment Permit is
fake. He further admitted that there is no official verification report
from the concerned authorities.
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
(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
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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
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 fraudulently 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
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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 reports to that effect were placed on record.
There is absolutely no evidence that the accused fraudulently obtained
Employment Permit of UAE and Nepali Foreign Employment Permit. In
absence of such evidence, it can not be assumed 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.15) allegedly made by the accused. In so far so
the extrajudicial confession allegedly made by the accused is
concerned, it is seen from the evidence of informant Vinod Pawar that
the alleged Confessional Statement have been recorded by Duty Officer
Ram Awtar Meena. The prosecution has not examined Duty Officer Ram
Awtar Meena to prove the said extrajudicial confession for the reasons
best known to it. In absence of evidence of Duty Officer Ram Awtar
Meena, it can not be held that the said statement was voluntarily made
by the accused and it is recorded as per her version. In this view of the
matter, the said statement (Exh15) can not be taken into consideration.
So also, there is no evidence that this accused was made explained
while recording the statement as it is in English. 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.
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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 Vinod Pawar (PW1).
17. Taking into account the evidence led by the prosecution
and the reasons discussed herein above, I hold that the prosecution has
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, 468, 471, 420
read with 34 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.
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(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 : 02/04/2019
sd/
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
Dictated on : 02/04/2019
Transcribed on : 02/04/2019
Signed on : 02/04/2019
ASD.
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