Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.NO. 2203155/PW/2018
Filed on : 27112018
Registered on : 27112018
Decided on : 10062019
Duration : 00Y, 06M, 14D
Exh. : 28
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. 2203155/PW/2018
CNR No.MHMM190124602018
(b) The date of commission of
the offence;
: 16112018
(c) The name of the
complainant
(if any);
: The State of Maharashtra
(At the instance of Sahar Airport
Police Station in Crime
No.357/2018)
(d) The name of the accused
person and his parentage
and residence;
: 1)
2)
Alvine Kamba Nokam
Age : 32 years
Occupation : Nil
R/at : Camerun
Ololie Georgette Konhawo
Age : 41 years
Occupation : Nil
R/at : Camerun
...2/
-- 1 of 11 --
2 C.C.NO. 2203155/PW/2018
(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.
(g) The final order; : Accused are acquitted.
(h) The date of such order; : 10062019
Appearance: APP Mrs. N. R. Pasarkar for the State.
Advocate Shri. Tripathi for accused.
J U D G M E N T
(Delivered on 10062019 )
The accused stand prosecuted for the offences punishable
under Sections 465, 468, 471, 420 read with Section 34 of the Indian
Penal Code (For short, I.P.C.) for having fraudulently procured forged
Passport of Guatemala Country, committed forgery of Passports of
Guatemala Country for the purpose of cheating and further used the
said forged Passports of Guatemala Country which they knew to be
forged and further cheated the Immigration Authority.
2. The prosecution case, in a nutshell, is that the informant
Sharmila Trivedi Women Police Naik, was working as Immigration
Officer from 8.00 pm of 16/11/2018 to 8.00 am of 17/11/2018 in the
Departure Wing of Immigration at Chhatrapati Shivaji Maharaj
International Airport, Mumbai. On 16/11/2018 at about 23 hours, the
accused came to Counter No. 44 for immigration clearance. They were
...3/
-- 2 of 11 --
3 C.C.NO. 2203155/PW/2018
holding passports of Guatemala Country. When their passports were
checked under the UV light, it was found that the Biopage of their
passports were fake. On interrogation, it was found that they were
Cameroon Nationals. They were also found with documents of
Cameroon country. After that, the informant handed over them to Sahar
Police Station and lodged FIR against them.
3. On the basis of aforesaid report, Crime No. 357/2018 was
registered against the accused for the offences punishable under
Sections 465, 468, 471, 420 read with Section 34 of the Indian Penal
Code. PSI Smt. Rajashtree Dudhade carried out the investigation of the
crime in usual manner. During the course of further investigation, she
made correspondence with authorities for verification of travel
documents. On completion of due investigation, she submitted
chargesheet.
4. I framed Charge (Exh.3) against the accused for the
offence punishable under Sections 465, 468, 471, 420 read with Section
34 of the Indian Penal Code. 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 :
...4/
-- 3 of 11 --
4 C.C.NO. 2203155/PW/2018
Sr.
No.
Points Findings
1 Does the prosecution prove that the
accused fraudulently procured forged
Passport of Guatemala Country ? No.
2 Does it further prove that the accused
committed forgery of Passport of
Guatemala Country for the purpose of
cheating ?
No.
3 Does it further prove that the accused
used the forged Passport of Guatemala
Country which they knew to be forged ? No.
4 Does it further prove that the accused
cheated the informant Immigration
Officer ? No.
5 What order ? The accused are
acquitted.
R E A S O N S
6. In order to establish its case against the accused, the
prosecution has examined as many as four witnesses. They are, the
informant WPN Sharmila Trivedi Immigration Officer on deputation
(PW1) at Exh. 5, Sachin Gautam, Immigration Officer (PW2) at Exh.16,
Banarasi Zanaklal Vishwakarma (PW3) at Exh17 who happens to be a
pancha witness and I.O., PSI Rajashree Vyankatesh Dudhade (PW4) at
Exh.22.
: Points 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
...5/
-- 4 of 11 --
5 C.C.NO. 2203155/PW/2018
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 Smt. Sharmila Prakash Trivedi, W.P.N.
(PW1) deposed that she was working as Immigration Officer on
deputation from 8.00 pm of 16/11/2018 to 8.00 am of 17/11/2018 in
the Departure Wing of Immigration at Chhatrapati Shivaji Maharaj
International Airport, Mumbai. On 16/11/2018 at about 23 hours, the
accused came to Counter No. 44 for immigration clearance. They were
holding passports of Guatemala Country. She further deposed that
when their passports were checked under the UV light, it was found
that the Biopage of their passports were fake. She further deposed that
on interrogation, it was found that they were Cameroon nationals. They
were also found with documents like birth certificates of Cameroon
national. In her further evidence, she has proved Boarding Passes (Exh.
12 & 13), Air Tickets (Exh. 14), Birth Certificate of accused No. 1
issued by Cameron Country (Art. A), I Card of accused No. 2 showing
that she is Cameron National (Art. B). She has also made reference to
statements of accused (Exh. 10 & 11). In crossexamination, she
admitted that she has not handed over the report of UV Rays Machine.
She further admitted that the Passports of accused were genuine,
therefore, they got entry into India. She further admitted that no
panchanam has been done when the bag of the accused were checked.
9. Sachin Gautam, Immigration Officer (PW2) deposed that
on 16/11/2018 he was on duty as Duty Officer. The accused
approached Counter for immigration clearance. They could not reply
satisfactorily. He deposed that the accused persons were holding
...6/
-- 5 of 11 --
6 C.C.NO. 2203155/PW/2018
Passports of Guatemala Country. He further deposed that the accused
in their statements (Exh. 10 & 11) disclosed that they fraudulently
obtained passports of Guatemala Country with the help of agent by
paying consideration of 2000 Uro Dollars. They further deposed that
actually they were Cameroon Nationals. In crossexamination, he
admitted that the immigration department is having no norms to check
the passports issued by the Guatemala Government. He further
admitted that no documents are handed over to Police showing that the
accused are Cameroon Nationals.
10. Banarasi Vishwakarma (PW 3) happens to be a pancha
witness to production panchanama (Exh. 18) under which Passports
(Exh. 16 & 17), Birth Certificate of accused No. 1 (Art. A), copy of
Identity Card of accused No. 2 (Art. B) and Convocation A Lomea (Art.
C) were seized. He deposed that the informant Sharmila Trivedi (PW1)
Immigration Officer handed over the above documents to I.O Rajshree
Dudhale (PW4). In crossexamination, he admitted that he signed on
the panchanama which was already prepared.
11. PSI Rajashree Dudhade (PW4) has carried out the
investigation of the crime. She deposed that on lodging the FIR (Exh. 8)
by the informant Sharmila Trivedi (PW1), she seized the documents viz.
Passports (Exh. 16 & 17), Birth Certificate of accused No. 1 (Art. A),
copy of Identity Card of accused No. 2 (Art. B) and Convocation A
Lomea (Art. C) under panchanama (Exh. 18). She further deposed that
she made correspondence with the concerned authority for verification
and genuineness passports and for arrival details. In crossexamination,
he admitted that he has not submitted the Screenshot of UV Machine
...7/
-- 6 of 11 --
7 C.C.NO. 2203155/PW/2018
when the Passports were checked. He admitted that though
correspondence is made, till date no report is received from the
concerned authorities.
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
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 by himself or by any other person,
whether such person be living or dead at the time of
such alteration; or
...8/
-- 7 of 11 --
8 C.C.NO. 2203155/PW/2018
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
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 Passports of Guatemala Country. It is
seen from the record that though correspondence for verification of
passports is made, no report is received till date. In so far as the forgery
of Passports is concerned, it is admitted fact that immigration
...9/
-- 8 of 11 --
9 C.C.NO. 2203155/PW/2018
department is having no norms to check the passports issued by the
Guatemala Government. It is also pertinent to point out here that the
informant Sharmila Trivedi (PW1) herself has admitted that as the
Passports were genuine, the accused got entry into India. The
prosecution has also not examined any witness for Guatemala
Government stating that the passports held by the accused are not
genuine. In absence of evidence of concerned witness from the
Guatemala Country, it can not be said that the said passports are
fraudulently obtained.
15. The prosecution has relied upon the documents allegedly
seized from the accused under panchanama to establish that they are
Cameroon Nationals. The said documents are not duly proved to be
seized from the accused. No panchanama is prepared when the
documents are allegedly seized. No reason is forthcoming why the
panchanama was not drawn by the Immigration Officer. It is not duly
proved that the said documents viz. Birth Certificate of accused No. 1
(Art. A), copy of Identity Card of accused No. 2 (Art. B) and
Convocation A Lomea (Art. C) were seized from the accused.
16. The prosecution has also heavily relied upon the extra
judicial confession (Exh. 10 & 11) allegedly made by the accused. In so
far so the extrajudicial confessions allegedly made by the accused are
concerned, it is pertinent to point out here that as stated by informant
Sharmila Trivedi (PW1), the said statements are signed by Duty Officer
Vilas Rane. The prosecution has not examined Duty Officer Rane for the
reasons best known to it. In absence of evidence of Duty Officer Rane,
the said statements can not be said to be proved. Even if it is proved, it
...10/
-- 9 of 11 --
10 C.C.NO. 2203155/PW/2018
needs support of other supporting evidence. There is no supportive
evidence in the present case. Under these circumstances, the said extra
judicial confession can not be acted upon to base the conviction of
accused.
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 that the accused fraudulently obtained
passports of Guatemala Country. I, therefore, hold that the prosecution
has failed to establish the guilt of accused beyond reasonable doubt. In
my view, this is a fit case wherein the accused deserve to be given
benefit of doubt. Consequently, I answer point Nos. 1 to 4 in the
negative.
: Point No. 5 :
18. In view of my negative findings as to point Nos. 1 to 4,
accused are entitled for acquittal.
19. 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 r.w. 34 of the
Indian Penal Code under section 248 (1) of the
Code of Criminal Procedure
(ii) Their bail bonds stand cancelled and they are set at
liberty.
...11/
-- 10 of 11 --
11 C.C.NO. 2203155/PW/2018
(iii) They shall furnish personal bond of Rs. 15,000/
and surety of like amount each under section 437A
of the Code of Criminal Procedure for further
period of six months.
(iv) The seized Indian Passports be returned to the
accused after the appeal period is over and rest of
the documents being worthless be destroyed.
Date : 10/06/2019
Sd/
(S. N. Salve)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
Dictated on : 10/06/2019
Typed on : 10/06/2019
Signed on : 10/06/2019
.../
-- 11 of 11 --