Final Order 1

Order Details: Copy  of Judgment
Pdf Text: JUDGMENT 1 C.C.NO.2251/PW/2018
Received on : 04.09.2018
Registered on : 04.09.2018
Decided on : 23.12.2022
Duration : 04Ys. 03M. 19Ds.
Exh. : 15
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI.
(JUDGMENT U/SEC. 355 OF CRIMINAL PROCEDURE CODE)
(a) The serial No. of the case; : C.C. No. 2251/PW/2018
CNR No. MHMM190093382018
(b) The date of commission of
the offence;
: 03.04.2018
(c) The name of the informant
(if any);
: The State (Sahar Police Station in
C. R. No.111/2018).
(d) The name of the accused
person, parentage and
residence;
: Mohamed Ali Siddiq
Bangarkunnu
Age : 39 years, Occ. :Business
R/at : 30 71, Singappur House,
Bangarkunnu, Nellikunnu,
DistThrissur, StateKerala
680005.
e) The offence complained of
or proved ;
: U/Sec. 465, 468, 471, 419 & 420
of Indian Penal Code.
(f) The plea of the accused and
his examination (if any);
: Accused pleaded not guilty.
(g) The final order; : Accused is acquitted.
(h) The date of such order; : 23.12.2022.
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JUDGMENT 2 C.C.NO.2251/PW/2018
APPEARANCE :
Ld. A.P.P. Mr. Khade for State.
Ld. Advocate Mr. B. A. Patel for the accused
J U D G M E N T
(Delivered on 23.12.2022)
1. The above named accused person stands charged for
having committed an offence punishable under Sections 465, 468, 471,
419 & 420 of the Indian Penal Code, 1860 (for the sake of brevity
hereinafter referred to as 'I.P.C.').
2. Facts germane to the prosecution case is abridged
thus :
As per the facts averred by the prosecution, accused
procured fake passport in the name of Pakala Vankatesh, by replacing
photo on it and on the strength of said passport travelled from
Muscat(Oman) to Mumbai and thereby cheated the Immigration
Authority.
3. Therefore, the informant lodged report in respect of the
aforesaid incident with Sahar police station. On the basis of report C.R.
No. 111/2018 was registered under sections 465, 468, 471, 419 & 420
of IPC against the accused. Investigation of the case was carried out by
P.S.I. Shri. S. P. Gat. After investigation he found sufficient evidence
against the accused, hence forwarded chargesheet under supra
sections.
4. Charges were famed against accused on 08.09.2022. He
pleaded not guilty and claimed to be tried. In view of above rival facts
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JUDGMENT 3 C.C.NO.2251/PW/2018
following points arose for my determination and I record my findings
thereon with reasons thereof :
Sr. No. Points Findings
1] Does the prosecution prove that, on above
date, time and place accused forged
passport with intent to commit fraud and
thereby committed an offence punishable
under Section 465 of I.P.C ? In the negative.
2] Does the prosecution prove that, accused
forged passport, intending that it shall be
used for the purpose of cheating and
thereby committed an offence punishable
under section 468 of the IPC? In the negative.
3] Does the prosecution prove that, on above
date, time and place accused fraudulently
or dishonestly used as genuine passport,
despite knowing it to be forged and
thereby committed an offence punishable
under section 471 of the IPC? In the negative.
4] Does the prosecution prove that, on above
date, time and place accused cheated
Immigration Authority by pretending to
be Pakala Venkatesh and thereby
intentionally induced the Immigration
Authority to act upon the same and
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JUDGMENT 4 C.C.NO.2251/PW/2018
thereby committed an offence punishable
under section 419 of the IPC? In the negative.
5] Does the prosecution prove that, on above
date, time and place accused intentionally
cheated Immigration Authority by
committing forgery of passport, travelled
from Muscat(Oman) to Mumbai and
thereby committed an offence punishable
under section 420 of the IPC? In the negative.
6] What order ? As per final order.
R E A S O N S
5. Prosecution in the instant case has examined only one
witness, whereas the defence did not examine any witness in support of
the case. Prosecution examined Investigating Officer Shri. Swapnil Gat
as PW No.1 vide Exh5. Heard both sides.
AS TO POINT Nos.1 to 5 :
6. It has come in the evidence that accused travelled to
Mumbai from Muscat on the passport, wherein the photo was not
matching with him. He made correspondence with RPO, Hyderabad and
Cochin and received reply confirming that there is change in
photograph on the passport. During investigate it was transpired that
his passport was retained by his employer while he was working at
Muscat. The accused wanted to return India, so he hired services of
agent from Bangladesh and procured passport by paying 5000 Riyal.
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JUDGMENT 5 C.C.NO.2251/PW/2018
The incident took place out of India. He did not obtain permission from
Central Government.
7. In the crossexamination he admitted that the report of
swapping machine is not on record, the Investigating Officer and his
superiors had not given any document regarding I.D. of accused,
panchnama was not prepared while seizing the documents and the
passport placed on record was without seal. It is further admitted that
the accused went to Sharjah for business purpose, the sponsor of
accused retained his passport. The passportcumvisa was valid upto
2017 and in order to extend visa the sponsor demanded Rs.5,00,000/
to accused and as he shown inability to pay the amount, the sponsor
shoo him away.
8. On going through the record, the prosecution failed to
examine the Immigration Officer, on whose instance the criminal law
was set into motion. There is hardly any evidence regarding
procurement of fake passport, except the bald statement of I.O. Further
the issuing authority can only verify the document whether it is forged
or not and admittedly, the PW No.1 is not an expert to draw the
conclusion that the passport is forged. If forgery is not proved, then
cheating is not proved. Furthermore, the offence is admittedly
committed outside India and thus hit by section 188 of Cr.P.C.
Admittedly, there is no permission sought from the Central
Government. Thus, the violation of section 188 of Cr.P.C. itself renders
the investigation and subsequent proceeding void abinitio. Therefore,
any evidence whatsoever surfaced on record renders meaningless.
Hence, in the backdrop of above discussion I answer all the points in the
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JUDGMENT 6 C.C.NO.2251/PW/2018
negative.
AS TO POINT NO.6 :
9. Since the point Nos. 1 to 5 are determined in the
negative, I am of the opinion that, the prosecution has failed to
prove its case beyond reasonable doubt and the accused is liable to
be acquitted. Hence, the following order as under:
O R D E R
1. Accused Mohamed Ali Siddiq Bangarkunnu, age : 39 years,
Occ. :Business, r/at : 30 71, Singappur House, Bangarkunnu,
Nellikunnu, DistThrissur, StateKerala 680005 is hereby
acquitted vide Section 248(1) of Cr.P.C. for the offence
punishable under Sections 465, 468, 471 & 420 of I.P.C.
2. The earlier P.R. bond of accused stands cancelled.
3. The accused to furnish P.R. of Rs.5,000/ in compliance to
section 437(A) of Cr.P.C.
4. The seized property, i.e. Indian Emergency Certificate and
mutilated passport be returned to the accused, after appeal
period is over.
(Judgment dictated on dais and pronounced in open court).
Date.: 23.12.2022
(J. W. Gaikwad)
Addl. Chief Metropolitan Magistrate
22nd Court, Andheri, Mumbai
csj
Typed on : 27.12.2022
Signed on : 27.12.2022
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