Final Order 1

Order Details: Copy  of Judgment
Pdf Text: C.C.NO.2489/PW/2018
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Filed on : 06/09/2018
Registered on : 06/09/2018
Decided on : 12/02/2019
Duration : 0 Y, 4 M, 36 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 No. of the case; : C. C. No. 2489/PW/2018
(b) The date of commission of
the offence;
: 28/08/2018
(c) The name of the complainant
(if any);
: The State of Maharashtra
(At the instance of Sahar
Airport Police Station in Crime
No. 270/2018)
(d) The name of the accused
person and his parentage
and residence;
: Heidar Satvatighaleh s/o Jafar
Age : 48 yrs. Occp: Nil
R/o. : Iran
(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; : 12/02/2019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Mr. Prabhakar Tripathi for accused.
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J U D G M E N T
(Delivered on this 12th February 2019)
The accused an Iranian National stands prosecuted for the
offence punishable Under Sections 465, 468, 471, 420 r/w 34 of the
Indian Penal Code (For short, I.P.C.) for having procured forged
Japanese Visa Sticker on page No. 24 of of Islamic Republic of Iran
Passport held by him and committed forgery of Japanese Visa Sticker
for the purpose of cheating and further used the said Japanese Visa
Sticker which he knew to be forged and further cheated the informant
Mr. Sandeep Nirapure, Assistant Immigration Officer.
2. The prosecution case, in a nutshell, is that on 28/08/2018,
the informant Mr. Sandeep Nirapure was performing his duty as
Assistant Immigration Officer at Counter No. 53 in the Departure Wing
of Immigration at Chhatrapati Shivaji Maharaj International Airport,
Mumbai. On that day at about 19.00 hours, accused, an Iranian
National approached Counter No. 53 for immigration clearance. At that
time, Dhiraj Kumar was performing his duty at Counter No. 53 as
Counter Officer. He raised doubt about the genuineness of Japanese
Visa Sticker on page No. 24 of Passport of accused, an Iranian
National. On scrutiny of his Passport, Counter Officer Dhiraj Kumar
found discrepancies that (i) Visa glossy paper, (ii) Font difference, (iii)
Difference in colour, (iv) Japan visa Embossed on left side of the photo
is faded, (v) Intaglio printing not visible, (vi) weight seal difference and
(vii) Ultra Violet features are dim. The accused was, therefore, referred
to Wingincharge Mr. Rane. Wingincharge Mr. Rane with the help of
Sandeep Kumar and Suny Guran who were conversant with Irani
language, recorded the statement of accused, an Iranian National. In
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the statement, the accused an Iranian National disclosed that he had
come to India from Iran for tourism on 25/08/2018 and he was
intending to travel to Japan for tourism on 28/8/2018. He further
disclosed that he procured Japanese Visa Sticker on page No. 24 with
the help of agent by name Taufid in Tehran City by paying
consideration of 2000 U.S. Dollars. On 30/8/2018, it was confirmed
that Japanese Visa Sticker on page No. 24 of Passport was fake. The
informant Sandeep Nirapure, Immigration Officer, therefore, handed
over the accused to Sahar Police Station and lodged report on
31/8/2018.
3. On the basis of aforesaid FIR, Crime No. 270/2018 was
registered against the accused, an Iranian National for the offence
punishable under sections 465, 468, 471, 420 of the IPC. PSI Kavita
Naik carried out the investigation of the crime in usual manner.
During the course of investigation, she made correspondence with
Consulate General of Japan in Mumbai for verification of genuineness
of Japanese Visa Sticker on page No. 24 of Passport. She also sent
letter to Consulate General of Islamic Republic of Iran informing the
arrest of accused, an Iranian National. On completion of due
investigation, she submitted chargesheet.
4. My predecessor framed charge (Exh. 2) against the accused
for the offence punishable under sections 465, 468, 471 and 420 of the
IPC. It was read over and explained to him to which he pleaded his
innocence and claimed to be tried. The statement of accused under
section 313 of the Code of Criminal Procedure (For short, Cr.P.C) is
recorded after the witnesses for the prosecution have been examined.
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The said statement under section 313 of Cr.P.C. explained to the
accused, an Iranian National with the help of Mr. Ghulam Ali
Payamdeh, Staff of Consulate General of Islamic Republic of Iran in
Mumbai who has been authorized by the Consulate General of Islamic
Republic of Iran to do the translation work. The defence of accused 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
fraudulently obtained Japanese Visa Sticker on
page No. 24 of Passport ? No.
2 Does it further prove that the accused committed
forgery of Japanese Visa Sticker on page No. 24 of
Passport for the purpose of cheating ? No.
3 Does it further prove that the accused used the
forged Japanese Visa Sticker on page No. 24 of
Passport which he knew to be forged ? No.
4 Does it further prove that the accused cheated the
informant Sandeep Nirapure, Asstt. Immigration
Officer by procuring Japanese Visa Sticker on page
No. 24 of Passport which was fake ? 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 Sunil
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Zarekar, Immigration Officer (PW1) at Exh.8, Banarasi Vishwakarma
(PW2) at Exh.18 who happens to be a panch witness to production
panchanama (Exh.19) and PSI Smt. Kavita Naik (PW3) at Exh.20 who
carried out investigation of the case.
Point Nos. 1 to 4 :
7. All the points are dealt with simultaneously so as to avoid
the 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 Immigration Officer, Sunil Jarekar (PW1) deposed
that on 28/08/2018 he was performing his duty at CSMI Airport at
Arrival as a Wingincharge. On that day at about 5.30 p.m., the accused
an Iranian National approached to Counter No. 53 for departure
immigration clearance where Mr. Dhiraj Kumar was performing his duty
as Counter Officer. He further deposed that Mr. Dhiraj Kumar Counter
Officer raised doubt about the genuineness of Japanese Visa Sticker
affixed on Page No. 24 of Passport of accused. Immigration Officer,
Sunil Darekar (PW1), therefore, checked the travel papers and found
that (i) Visa glossy paper, (ii) Font difference, (iii) Difference in colour,
(iv) Japan visa Embossed on left side of the photo is faded, (v) Intaglio
printing not visible, (vi) weight seal difference and (vii) Ultra Violent
features are dim. He further deposed that thereafter Duty Officer Mrs.
Sangeeta Chandrashekar recorded statement of accused (Exh.9). He
further deposed that thereafter informant Sandeep Nirapure,
Immigration Officer lodged FIR (Exh.14). In his further evidence, he
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proved Extracts of Station Diary (Exh. 10 to Exh.13), Copy of Passport
(Exh.15) and Boarding Pass (Exh.16).
9. P.S.I. Smt. Kavita Naik (PW3) has carried out the
investigation of the crime. She deposed that informant Sandeep
Nirapure, Assistant Immigration Officer lodged FIR (Exh. 10) that the
accused, an Iranian National was intending to travel to Japan for
tourism who had come from Iran and on scrutiny of his passport, he
raised doubt and when the said passport was checked by wingin
charge, visa of Japan affixed on page No.24 was found to be fake. She
further deposed that she drew up production panchanama (Exh. 19) in
respect of seizure of Passport and Boarding Pass. She further deposed
that during the course of investigation, she made correspondence
(Exh.21) with Consulate General, Japan in Mumbai for verification and
genuineness of visa. She further deposed that Report (Article”A”) is
received from Consulate General, Japan in Mumbai. She further
deposed that witness summons was sent to Japan Consulate in Mumbai.
But report is received stating that “As per international law, our office
or it's representative shall not attend or be present in the court as a
witness.” She further deposed that then she sent letter to Consulate
General Islamic Republic of Iran regarding arrest of accused. She
further deposed that it is revealed in her investigation that the accused
was going to Tokia on passport and boarding pass which were fake and
obtained the same for consideration of 2000 US dollars.
10. Banarasi Vishwakarma (PW2) happens to be a panch
witness to production panchanama (Exh.19) under which Boarding Pass
and Passport of accused were seized from informant Sanjay Niripure,
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Immigration Officer. He deposed that PSI Naik seized one boarding pass
and passport from informant Sanjay Nirapure Immigration Officer.
P.S.I. Smt. Kavita Naik (PW3) and Banarasi (PW2) have duly proved
panchanama (Exh.19) under which Passport and Boarding Pass were
seized from informant Sanjay Nirapure, Immigration Officer.
11. In respect of forgery of Japanese Visa Sticker on page No.
24 of the Passport of accused, the Learned APP for the State argued that
the when the Passport of accused, an Iranian National who was
intending to travel Japan, was checked by the informant Sanjay
Nirapure, Immigration Officer, he raised doubt about its genuineness.
The accused was, therefore, offloaded and on being interrogated, in his
extrajudicial confession disclosed that he procured the said Japanese
Visa Sticker on page No. 24 of his passport with the help of one agent
for consideration of 2000 U. S. Dollar. She further submitted that this
fact is duly proved by the said extrajudicial confession (Exh. 9). She
further submitted that on enquiry with the Consulate General, Japan in
Mumbai in respect of said Japanese Visa Sticker, it is reported in Report
(Art. “A) that it is fake and this fact is duly proved by I. O. PSI Smt.
Kavit Naik (PW3). She further submitted that the prosecution has duly
proved that the Japanes Visa Sticker on page No. 24 of the Passport of
accused was fake and it was fraudulently obtained. She further
submitted that the prosecution has duly proved its case. She, therefore,
prayed to convict the accused.
12. Per Contra, the Learned Counsel for the accused in Written
Notes of Arguments (Exh. 26) vehemently argued that the informant
who lodged the FIR has not been examined by the prosecution and as
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such FIR itself is not proved. It is further argued by him that the extra
judicial of accused is also not duly proved as the Duty Officer who
recorded it, has not been examined by the prosecution. He further
submitted that though there is report in respect of Japanese Visa
Sticker, the same is not admitted in evidence and not been proved as
the author of the report has not been examined by the prosecution. It is
further submitted that in absence of evidence of author of report, the
said report can not be read in evidence. He further submitted that the
prosecution has utterly failed to proved that the Japanese Visa Sticker
on page No. 24 of the Passport of accused was fake. He further
submitted that the prosecution has failed to prove forgery of Japanese
Visa Sticker, forgery for the purpose of cheating and accused used it
knowing to be forged. He, therefore, prayed to acquit the accused.
13. 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
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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.
14. A close scrutiny of the aforesaid provisions makes it
abundantly 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.
15. 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 committed forgery of Japanese Visa Sticker affixed on page No.
24 of his Passport. Though there is Report (Art “A”) from the Consulate
General of Japan in Mumbai, however, the same has not been duly
proved in the evidence by the prosecution. The prosecution has merely
placed on record Report (Art “A”). Mere production of document
before the Court doesn't dispense with the proof of document. Under
Section 294 of Cr.P.C, only those documents, the genuineness of which
is not disputed may be read in evidence in any enquiry or trial. Here, in
the present case, the accused in his crossexamination as well as in
answers to questions put to him in his examination under section 313 of
Cr.P.C denied that the Japanese Visa Sticker affixed on page No. 24 to
be fake and has disputed the genuineness of Report (Art “A). As the
accused through his crossexamination and by way of answers to
questions put to him in his examination under section 313 of Cr.P.C.
has disputed the genuineness of Report (Art “A”), the prosecution was
duty bound to examine the author of Report (Art “A”) to prove the
signature and contents of report. As the prosecution has not examined
the author of Report (Art “A”) and it has not been admitted by the
accused, it can not be read in evidence as substantive evidence under
subsection (3) of section 294 of Cr.P.C.
16. The prosecution has also heavily relied upon the Extra
Judicial Confession (Exh. 9) allegedly made by the accused. In so far
so the extrajudicial confession allegedly made by the accused is
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concerned, it is recorded in English language. It is pertinent to point
out here that it is the case of prosecution itself that the accused was
only conversant with Iranian language and his Extra Judicial Confession
has been recorded by Duty Officer Sangeeta Chandrashekar with the
help of Sandeep Kumar and Suny Guran who were conversant with
Iranian language. It is pertinent to point out here that the prosecution
has not examined Duty Officer Mrs. Sangeeta Chandrashekar who
allegedly recorded the Extrajudicial Confession of accused (Exh. 9). So
also, the prosecution has not examined Sandeep Kumar and Suny
Guran who were conversant with Iranian language to establish that the
accused properly understood the questions and his answers to the
questions put to him were correctly recorded by the Duty Officer Mrs.
Sangeeta Chandrashekar in the alleged ExtraJudicial Confession (Exh.
9). Under these circumstances, it can not be held that the accused
understood the questions put to him and his answers to such questions
have been correctly recorded. In absence of evidence of the Duty Officer
Sangeet Chandrashekar who allegedly recorded the Extrajudicial
Confession, it can not be held to be voluntary one and can not be used
to base the conviction of accused. Even if such Extrajudicial
confessions are held to be proved, they need support of other
supporting evidence. There is no absolutely no supportive evidence in
the present case.
17. In view of the reasons discussed herein above, it can not be
concluded that the accused committed forgery of Japanese Visa Sticker
affixed on page No. 24 of his Passport, it was made for the purpose of
cheating, cheated the Immigration Authority and further used the said
Japanese Visa Sticker affixed on page No. 24 of his Passport as genuine
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knowing it to be forged.
18. 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 pale of reasonable
doubt. Consequently, I answer all the points in the negative.
Point No. 5 :
19. In view of my negative findings as to point Nos. 1 to 4,
accused is entitled for acquittal.
20. In so far as entry of accused to India is concerned, he was
holding Indian Tourist Visa for the period from 07.11.2018 to 06. 11.
2018. Now the said Tourist Visa is expired and the accused is
overstaying in India without extension of Tourist Visa. As the Tourist
Visa of accused has already been expired and he is overstaying in India,
he will have to be deported to his own country. Necessary directions to
that effect will have to be given to State Government for taking steps
towards deportation of accused.
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.
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(ii) He is in jail. He be released forthwith if
not required in any other crime.
(iii) He shall execute personal bond in the
sum 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 Passport of accused be
returned to him after the appeal period is
over.
(v) The State Government to take necessary
steps for deportation of the accused.
(vi) Copy of order be forwarded to Sr. Police
Inspector, Police Station, Sahar, Mumbai 400
099 for information and for taking necessary
steps for deportation of accused.
Date : 12/02/2019
sd/
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
Dictated on : 12/02/2019
Transcribed on : 12/02/2019
Signed on : 12/02/2019
ASD.
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