Final Order 1

Order Details: Copy  of Judgment
Pdf Text: C.C.NO.160/PW/2019
1
Filed on : 10/01/2019
Registered on : 10/01/2019
Decided on : 06/03/2019
Duration : 0 Y, 1 M, 26 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. 160/PW/2019
(b) The date of commission of
the offence;
: 21/12/2018
(c) The name of the complainant
(if any);
: The State of Maharashtra
(At the instance of Sahar
Airport Police Station in Crime
No.408/2018)
(d) The name of the accused
person and his parentage
and residence;
: 1. Mrs. Lalu Maya Ghale
Age : 47 yrs. Occp: Job
R/o. : Nepal
2 Mrs. Anu Kala Karki
Age : 38 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 are acquitted.
(h) The date of such order; : 06/03/2019
MHMM19-000621-2019
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Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Mr. Sanjay Tiwari for accused.
J U D G M E N T
(Delivered on this 22nd February 2019)
The accused, Nepali Nationals stand 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 21/12/2018,
the informant Mr. Vinodkumar Kshyap, 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 were intending to travel to Dubai by Flight
No.9W526 scheduled at about 02.10 hrs. They approached counter No.
20 for immigration clearance. On scrutiny of their passports and travel
documents, the informant Mr. Vinodkumar Kashyap, Immigration
Officer raised doubt about Nepali Foreign Employment Permit and
Employment Visa paper of UAE. He, therefore, referred the accused to
Wingincharge Mr. Prashant Chaudhary. Wingincharge Mr. Prashant
Chaudhary checked the said Nepali Foreign Employment Permit
No.009445891 and 0094478015 from website www.dofe.Gov.np and it
was found that no such Nepali Foreign Employment Permits were ever
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issued. So also, Wingincharge Mr. Prashant Chaudhary checked
Employment Permit of UAE No.87121111/2018/204 and
87117396/2018/204 from the website of UAE Government and it was
found that those were Tourist Visa. As Nepali Foreign Employment
Permit and Employment Visa paper of UAE were fake, the informant
Mr. Vinodkumar Kashyap, Immigration Officer lodged FIR with Sahar
Police Station, Mumbai.
3. On the basis of FIR, Crime No. 408/2018 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 Dinesh Bodake carried out the
investigation of the crime in usual manner. During the course of
investigation, he made correspondence with Section Officer, Ministry of
External Affairs, New Delhi for genuineness of permit sticker of UAE.
He also sent letter to Nepal Embassy, Section officer, Ministry of
External Affairs, New Delhi for verification of genuineness of Nepali
Foreign Employment Permit of both the accused. He also sent letter to
The Secretary, Embassy of Nepal, New Delhi for verification of
genuineness of Employment Permit stickers of both the accused. On
completion of due investigation, he submitted chargesheet.
4. I framed charge (Exh.5) 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 them in vernacular to which they pleaded
their innocence and claimed to be tried. The statements of accused
under section 313 of the Code of Criminal Procedure are recorded after
the witnesses for the prosecution have been examined. Their defence is
that of total denial and false implication in the crime.
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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
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 Vinodkumar Kashyap, 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
Vinodkumar Kashyap, Immigration Officer (PW1) at Exh.8, Wingin
charge Prashant Chaudhari (PW2) at Exh.27 and I.O. PSI Dinesh
Haribhau Bodake (PW3) at Exh.28.
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
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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 Vinodkumar Kashyap, Immigration Officer
(PW1) deposed that on 21/12/2018 he was performing his duty at
CSMI Airport at Departure Counter No.20. One that day, accused,
Nepali Nationals were intending to travel to Dubai by Flight No. 9W
526. He further deposed that on scrutiny of their Passports and travel
documents, he raised doubt about Nepali Foreign Employment Permit
and Employment Visa paper of UAE. He, therefore, referred the
accused to Wingincharge Prashant Chaudhary (PW2) who checked the
said Employment Permit of UAE, and found that those were Tourist
Visas. 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, Prashant
Chaudhary (PW2) recorded the statements of accused who in their
statements disclosed that they by paying consideration of Rs. 40,000/
to agent by name Angela procured Employment Permit of UAE and
Nepali Foreign Employment Permit. In his further evidence, he has
proved Nepali Foreign Employment Permits (Exh.9 and Exh.10),
Extracts of Station Diary (Exh.12), Employment Permits of UAE
(Exh.13 and Exh.14), Air Tickets (Exh.15 and Exh.16), visas at (Exh.17
and Exh.18), The extracts of Foreign Employment Permits (Exh.19,
Exh.20 and Exh.21) respectively, Insurance Paper in the name of
accused No.1 and 2 (Exh.22 and Exh.23). He has also stated that
statements of accused (Exh. 24 and Exh.25 respectively) were recorded
by Duty Officer, Himanshu Reddy.
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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.17 and Exh.18) from the official record and downloaded the same.
He further admitted that (Exh.13) and (Exh.14) are prepared in Nepal.
10. Immigration Officer, Prashant Chaudhary (PW2) was
performing his duty as Wingincharge. He deposed that the informant
Vinodkumar Kashyap brought accused to him who were having fake
UAE Employment Permit and Nepali Foreign Employment Permits. He
further deposed that he checked the said visas and permit from the App
on his cell phone and found that it was Tourist Visa. Then, he recorded
the statements of said passengers who disclosed that they by paying
consideration of Rs.40,000/ each to agent by name Angela obtained
visa and came to India. 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. I.O. Shri. Dinesh Bodake (PW3) has carried out the
investigation of the crime. He deposed that informant Vinodkumar
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Kashyap Immigration Officer (PW1) lodged FIR (Exh.11) that the
accused persons 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 for genuineness of Permit Sticker of UAE and Nepali
Employment Permit. In crossexamination, he admitted that only Nepal
Government can comment that Nepali Foreign Employment Permit is
fake. He further admitted that there is no official verification report
from the concerned authorities. He further admitted that there is no
evidence in the chargesheet that accused obtained Nepali Foreign
Employment Permit and UAE Employment Permit for consideration of
Rs.40,000/ each.
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
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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
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
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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
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. It is
also pertinent to point out here that in the crossexamination I.O. S hri.
Bodake categorically admitted that there is no evidence with the
chargesheet that accused obtained Nepali Foreign Employment Permit
and UAE Permit for consideration of Rs.40,000/ each. 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 confessions (Exh. 24 and Exh.25) allegedly made by the
accused. In so far so the extrajudicial confessions allegedly made by the
accused are concerned, it is seen from the evidence of informant
Vinodkumar Kashayp that the alleged Confessional Statements have
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been recorded by Duty Officer Himanshu Reddy. In the present case,
the prosecution has not examined Duty Officer, Himanshu Reddy for
the reasons best known to it. In absence of evidence of Duty Officer,
Himanshu Reddy, it can not be held that the said statements were
voluntarily made by the accused and they are recorded as per the
version of accused persons. In this view of the matter, the said
statements (Exh.24 and Exh.25) can not be taken into consideration.
So also, there is no evidence that this accused were made explained
while recording the statement as it is in English. There is also no
evidence that the said statements were free from inducement and
coercion. In absence of such evidence, said statements 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 Vinodkumar Kashayp,
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
not been able to establish the guilt of accused beyond reasonable doubt.
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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 are 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) They are in Jail. They be released
forthwith if not required in any other crime.
(iii) They shall furnish personal bond of Rs.
10,000/ each 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 : 06/03/2019
sd/
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
Dictated on : 06/03/2019
Transcribed on : 06/03/2019
Signed on :06/03/2019
ASD.
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