Final Order 1

Order Details: Copy  of Judgment
Pdf Text: C.C.NO.720/PW/2019
1
Presented on : 22/02/2019
Registered on : 22/02/2019
Decided on : 02/04/2019
Duration : 0 Y, 1 M, 10 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. 720/PW/2019
(b) The date of commission of
the offence;
: 21/02/2019
(c) The name of the complainant
(if any);
: The State of Maharashtra
(At the instance of Sahar
Airport Police Station in Crime
No.79/2019)
(d) The name of the accused
person and his parentage
and residence;
: 1. Mrs. Urmila Khati
Age : 30 yrs. Occp: Nil
R/o. : Nepal
2 Mrs. Samjhana Silwal D/o
Karna Bahadur Silwa
Age : 28 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; : 02/04/2019
MHMM19-003004-2019
-- 1 of 10 --
C.C.NO.720/PW/2019
2
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Mr. Mangaonkar for accused.
J U D G M E N T
(Delivered on this 2nd April 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 the informant
Prakash Kapgane, Assistant Security Officer was deputed at Chhatrapati
Shivaji Maharaj International Airport, Mumbai (CSMIA). On
21/02/2019, he was performing his duty of immigration clearance. On
that day, the accused were intending to travel to Dubai by Flight
No.9W5746 scheduled at about 19.45. hrs. They approached Counter
No. 33 and 42 for immigration clearance. On scrutiny of their passports
and travel documents, he found that there was scoring in Visa Papers.
They, therefore, referred the accused to Wingincharge Mr. Mustafa
Nadeem. Wingincharge Mr. Mustafa Nadeem checked the said
passports and and found that Issuing Date & Validity Dates of Kuwait
Residence Permits are altered. The informant Prakash Kapgane,
-- 2 of 10 --
C.C.NO.720/PW/2019
3
Assistant Security Officer on deputation lodged FIR with Sahar Police
Station, Mumbai.
3. On the basis of FIR, Crime No. 79/2019 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 Nagral carried out the
investigation of the crime in usual manner. During the course of
investigation, he made correspondence with Consulate General of
Kuwait verification of genuineness of permit 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 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.
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
Permit of Kuwait ?
No.
2 Does it further prove that the accused committed
forgery of Permit of Kuwait for the purpose of
cheating ? No.
-- 3 of 10 --
C.C.NO.720/PW/2019
4
3 Does it further prove that the accused used the
forged Permit of Kuwait which they knew to be
forged? No.
4 Does it further prove that the accused cheated the
informant Prakash Kapgate Officer on deputation
by fraudulently obtaining Permit of Kuwait ? No.
5 What order ? The accused
are acquitted.
R E A S O N S
6. In order to further its case against the accused, the
prosecution has examined four witnesses. They are, the informant
Prakash Kapgate, Officer on deputation (PW1) at Exh.5, Smt. Shilpa
Salunkhe (PW2) at Exh. 19., Wingincharge Mustafa Nadeem (PW3)
at Exh.20 and PSI Nagral (PW4) at Exh.23 who carried out the
investigation of the crime.
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 Prakash Kapgate (PW1) Officer on
deputation deposed that on 21/02/2019, he was performing his duty of
immigration clearance. On that day, the accused were intending to
travel to Dubai by Flight No.9W5746 scheduled at about 19.45. hrs.
They approached Counter No. 33 and 42 for immigration clearance. He
further deposed that on scrutiny of their passports and travel
documents, he found that there was scoring in Visa Papers. He further
deposed that the validity of permit was changed to 29/11/2019 from
-- 4 of 10 --
C.C.NO.720/PW/2019
5
29/11/2018 as per MRZ lines. His further evidence shows that he,
therefore, referred the accused to Wingincharge Mr. Mustafa Nadeem
who checked the said passports and and found that Issuing Date &
Validity Dates of Kuwait Residence Permits are altered. The informant
Prakash Kapgane, Assistant Security Officer on deputation lodged FIR
with Sahar Police Station, Mumbai. His further evidence shows that
Wingincharge, Mustafa Nadeem (PW3) recorded the statements of
accused who in their statements disclosed that they with the help of
Delhi based agent by name Ram Tamang procured Permit. In his
further evidence he has proved the Extracts of Station Diary (Exh.10),
Boarding Passes (Exh.11 and Exh.12), Air Tickets (Exh.13 and Exh.14),
NOC from Nepali Police issued to accused No. 1 (Exh.15), Medical
Examination Report of accused No. 1 (Exh.16), Copy of employment
Visa (Art “A”), NOC from Nepali Police issued to accused No. 2
(Exh.17), Medical Examination Report of accused No. 2 (Exh.18), Copy
of employment Visa (Art “B”). In crossexamination, he admitted that
there is no machine to read MRZ Lines. He further admitted that on the
basis of suspicion, he stated that there is discrepancy in MRZ Lines.
9. The evidence of Shilpa Salunkhe (PW2) is broadly on the
same lines as deposed by Prakash Kapgate (PW1) Officer on deputation.
No purpose would be served by repeating what has been stated in the
preceding para.
10. Mustafa Nadeem (PW3) was performing his duty as Wing
incharge. He deposed that the informant Prakash Kapgate (PW1) and
Shilpa Salunkhe (PW2) brought accused to him who manipulated the
validity of their Residence Permits of Kuwait. He further deposed that
-- 5 of 10 --
C.C.NO.720/PW/2019
6
he checked the said Residence Permits of Kuwait and found that date of
validity was tampered in the passport Exh. 6 of accused No. 1 and Exh.
7 of accused No. 2. He further deposed that Duty Officer Dharam Pal
recorded their statements (Exh. 21 & 22). In crossexamination, he
admitted that he has not stated anything in his statement regarding
MRZ lines. He admitted that there is no Machine available at the
Airport to check the MRZ Lines.
11. PSI Nagral (PW4) has carried out the investigation of the
crime. He deposed that informant Prakash Kapgane Immigration
Officer (PW1) lodged FIR (Exh.9) that the accused persons tampered
residence permit of Kuwait. He further deposed that during the
investigation, he made correspondence with Consulate General of
Kuwait for verification and genuineness of residence permit of Kuwait.
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
-- 6 of 10 --
C.C.NO.720/PW/2019
7
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
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
-- 7 of 10 --
C.C.NO.720/PW/2019
8
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 tampered residence permit of Kuwait. It is pertinent to point
out here that there is no official report from the issuing authority
stating that residence permits of Kuwait are fake. In so far as the
evidence of prosecution witnesses in respect of discrepancy in MRZ
Lines is concerned, admittedly there is no System to read the said MRZ
Lines. So there, the above evidence as regards MRZ Lines does not find
place in the FIR and the statements of witnesses and it is material
improvement. So, the said evidence which does not find place in the FIR
and the statements of prosecution witnesses can not be considered.
There is absolutely no evidence that the accused tampered the residence
permits of Kuwait.
15. The prosecution has also heavily relied upon the extra
judicial confessions (Exh. 21 and Exh.22) 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 Mustafa Nadeem
WingInChan (PW3) that the alleged Confessional Statements have
been recorded by Duty Officer Dharamveer Singh. In the present case,
the prosecution has not examined Duty Officer, Dharamveer Singh for
the reasons best known to it. In absence of evidence of Duty Officer,
Dharamveer Singh, it can not be held that the said statements were
-- 8 of 10 --
C.C.NO.720/PW/2019
9
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.21 and Exh.22) 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 Residence Permit of Kuwait are fake.
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 Prakash Kapgate, 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:
-- 9 of 10 --
C.C.NO.720/PW/2019
10
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 :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.
-- 10 of 10 --