Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.NO. 2200641/PW/2019
Filed on : 15022019
Registered on : 15022019
Decided on : 04072019
Duration : 00Y, 04M, 19D
Exh. : 21
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. 2200641/PW/2019
CNR No. MHMM190026682019
(b) The date of commission of
the offence;
: 11022019
(c) The name of the
complainant
(if any);
: The State of Maharashtra
(At the instance of Sahar Airport
Police Station in Crime
No.65/2019)
(d) The name of the accused
person and his parentage
and residence;
: Sunmaya Tamang
Age : 35 years. Occp : Service
R/o. : Kukurthakur,
02 Kukurthakur, Sindhuli, Nepal.
(e) The offence complained
of or proved;
: Under Sections 465, 468, 471, 420
read with Section 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.
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2 C.C.NO. 2200641/PW/2019
(g) The final order; : Accused is acquitted.
(h) The date of such order; : 04072019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Shri. Tiwari for accused.
J U D G M E N T
(Delivered on this 04072019 )
The accused, Nepali Nationals stand prosecuted for the
offence punishable Under Sections 465, 468, 471, 420 read with
Section 34 of the Indian Penal Code (For short, the I.P.C.) for having
forged Nepali Foreign Employment Permit and residence permit of
Kuwait affixed on page No. 15 of her passport and committed forgery of
Nepali Foreign Employment Permit and residence permit of Kuwait for
the purpose of cheating and further cheated the Immigration Authority
and used Nepali Foreign Employment Permit and residence permit of
Kuwait as genuine knowing the same to be forged.
2. The prosecution case, in a nutshell, is that on 11022019,
the informant Mr. Nitinkumar Patel, 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 Kuwait by Flight
No.9W 57 by Jet Airways. She approached informant for immigration
clearance. On scrutiny of her passport and travel documents, the
informant Mr. Nitinkumar Patel, Immigration Officer raised doubt about
her Nepali Foreign Employment Permit and residence permit of Kuwait.
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3 C.C.NO. 2200641/PW/2019
She, therefore, referred the accused to Wingincharge Mr. Amalendu
Barui Joseph. Wingincharge Mr. Amalendu Barui Joseph checked the
said Nepali Foreign Employment Permit and residence permit of
Kuwait. On further interrogation, she disclosed that she wanted to
travel to Kuwait for employment purpose and in order to avoid the
procedure she with the help of agent altered the date in the visa affixed
on the passport. As the accused committed forgery, she was handed
over to Sahar Police Station FIR was lodged against her.
3. On the basis of FIR, Crime No. 65/2019 was registered
against the accused for the offence punishable under sections 465, 468,
471 and 420 read with Section 34 of the I.P.C. PSI Yemgar carried out
the investigation of the crime in usual manner. During the course of
investigation, he made correspondence with Consulate General of
Kuwait for verification of genuineness of visa of Kuwait. 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 read with Section
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 :
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4 C.C.NO. 2200641/PW/2019
Sr.
No.
Points Findings
1 Does the prosecution prove that the accused forged
Nepali Foreign Employment Permit and residence
permit of Kuwait ? No.
2 Does it further prove that the accused committed
forgery of Nepali Foreign Employment Permit and
residence permit of Kuwait for the purpose of
cheating ?
No.
3 Does it further prove that the accused used the
forged Nepali Foreign Employment Permit and
residence permit of Kuwait which they knew to be
forged?
No.
4 Does it further prove that the accused cheated the
Immigration Officer by fraudulently obtaining
Nepali Foreign Employment Permit and residence
permit of Kuwait ? 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 in all three witnesses. They are, the
informant Nitinkumar Patel, Immigration Officer (PW1) at Exh. 4,
Wingincharge Amalendu Joseph (PW2) at Exh. 14 and I.O. PSI
Yemgar (PW3) at Exh. 16.
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
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such that as can with advantage be discussed together.
8. The informant Nitinkumar Patel, Immigration Officer
(PW1) deposed that on 11.02.2019 he was performing his duty at
CSMI Airport at Departure. One that day, accused, Nepali Nationals
approached him, who was intending to travel to Kuwai by Flight No.
9W 57 by Jet Airways. He further deposed that on scrutiny of her
Passport and travel documents, he raised doubt about Kuwait Residence
Permit as there was handwritten alteration. He, therefore, referred the
accused to Wingincharge Amalendu Joseph (PW2) and interrogated
her. She disclosed that she with the help of agent altered the date in
the residence permit of Kuwait. In his further evidence, he has proved
statement of accused (Exh. 5), visa affixed on page No. 15 of passport
(Exh. 6) and copy of Kuwait Employment Visa (Art. A).
9. In crossexamination, he admitted the accused was
uneducated. He further admitted that he has not handed over any
document to Police showing that she was working in Kuwait.
10. Amalendu Joseph, (PW2) was performing his duty as Wing
incharge. He deposed that the informant Nitinkumar Patel 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 and found that there was handwritten
alteration in the Kuwait Residence Permit. Then, he recorded the
statement of said passenger who disclosed that she with the help of
agent altered the date in Kuwait Residence Permit. In cross
examination, he admitted that he has not tallied the Kuwait Residence
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Permit with the concerned authority.
11. I.O. Shri. Yemgar (PW3) has carried out the investigation
of the crime. He deposed that informant Nitin Kumar Immigration
Officer (PW1) lodged FIR (Exh.7) that the accused residence permit of
Kuwait. He further deposed that he made correspondence with
Consulate General Kuwait for verification of residence permit of Kuwait.
In crossexamination, he admitted that no document is produced on
record that the accused was working in Kuwait. He further admitted
that no report from Consulate General Kuwait is received that the
residence permit is fake.
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
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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
convicted under Section 465 by solely relying on the ingredients of
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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 residence permit of Kuwait. It is
pertinent to point out here that there is no official report from the
Government of Kuwait stating that residence permit is fake. In absence
of such evidence, it can not be assumed that the accused forged
residence permit of Kuwait.
15. The prosecution has also heavily relied upon the extra
judicial confessions (Exh. 5) 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 Nitin Kumar Patel
that the alleged Confessional Statement has been recorded by Profiling
Officer Kailash Paigara. In the present case, the prosecution has not
examined Profiling Officer Kailash Paigara for the reasons best known
to it. In absence of evidence of Profiling Officer Kailash Paigara, it can
not be held that the said statement was voluntarily made by the accused
and it is recorded as per the version of accused. In this view of the
matter, the said statement (Exh.5) 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. 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 Residence Permit of Kuwait is fake.
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16. In view of the reasons discussed herein above, it can not be
concluded that the accused fraudulently obtained Residence Permit of
Kuwait, committed forgery of Residence Permit of Kuwait for the
purpose of cheating and further used the said Residence Permit of
Kuwait as genuine knowing it to be forged and further cheated the
informant Nitinkumar Patel, 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.
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.
(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.
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(iv) The seized Nepali Passport be returned to the
accused and other travel documents be destroyed,
after the appeal period is over.
Date : 0407 2019
sd/
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
*csj
Dictated on : 04072019
Typed on : 04072019
Signed on : 04072019
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