Delhi District Court
State vs Darshan Singh on 14 January, 2025
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Darshan Singh
FIR No : 169/1985
U/s : 420/468/471/174A/34 IPC IPC
P.S. : Domestic Airport
1. CNR No. of the Case : DLSW020232032022
2. Date of commission of offence : 04.12.1985
3. Date of institution of the case : 13.05.2022
4. Name of the complainant : Major Singh
5. Name of accused, parentage & : Darshan Singh
address S/o Late Butta Singh
R/o WZ-139, Sant
Garh, Tilak Nagar,
Delhi.
6. Offence complained of : 420/468/471/174A/34
IPC
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 14.01.2025
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State
Mr. Tajinder Singh, Ld. Counsel for accused.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 1 of 24
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on unknown
date, time and place, accused in connivance with one Balvinder
Singh dishonestly induced complainant to deliver Rs.15,000/- on
the pretext that he would help him in clearing his passport
bearing no.Q9J8258 at the airport so as to enable him to board
the flight to Cairo, Egypt by putting a forged stamp of Protector
of Emigrants (POE) in his passport intending that the said
document shall be used to the purpose of cheating and accused in
connivance with Balvinder Singh dishonestly used the forged
Protector of Emigrants stamp as a genuine which they knew to be
a forged stamp and accused thereby committed the offence
punishable under section 420/468/471/34 IPC for which FIR
no.169/1985 was registered at the police station Domestic
Airport, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter
called as, “IO”) undertook investigation and on culmination of
the same, the chargesheet against the accused person was filed.
The Ld. Predecessor of this court took the cognizance against the
accused person and summons were issued to the accused. On his
appearance, a copy of the chargesheet was supplied to the
accused in terms of section 207 of the Code of Criminal
Procedure, 1973 (hereinafter, “CrPC“). Further, accused failed to
appear during the pendency of case and he was declared
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 2 of 24
proclaimed offender by the concerned court and file was
consigned to record room. Upon apprehension of accused on
13.05.2022, accused was produced before the concerned court
and the case file was revived. On finding a prima facie case
against the accused person, charge under Sections
420/468/471//34 IPC of IPC was framed against the accused on
01.06.2022 and under Section 174A IPC was framed on
16.09.2023. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and
documentary evidence against the accused to prove its case
beyond reasonable doubt:-
ORAL EVIDENCE
PW-1 Major Singh
PW-2 Retd. ACP Mahender Singh
PW-3 Retd. ACP Prakash Chandeer Mann
PW-4 Retd. SI Ram Gopal
PW-5 Devender Pratap Verma
PW-6 HC Jasbir Singh
DOCUMENTARY EVIDENCE
Ex.PW1/A Complaint
Ex.PW1/B Rukka
Ex.PW1/C Seizure memo
Ex.PW2/A Embarkation card and air ticket
Ex.PW3/A Personal search memo
Ex.PW3/B POE on stamp on 19.03.1986
Ex.PW5/A Certificate u/S 65 of Indian Evidence Act
Ex.PW6/A Arrest memo
Ex.PW6/B Personal search memo
Ex.PW6/C Kalandra
ADMITTED DOCUMENTS
Ex.PW1/B FIR no.169/1985 dated 04.12.1985FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 3 of 24
To prove its case, prosecution examined the following witnesses
before the file was consigned to record room under Section 299
Cr. P. C., the same are as follows:
4. PW1 ASI Gautam deposed that on 04.12.1985 on the receipt of
Rukka sent by SI Mohinder Singh he recorded the formal FIR
Ex.PW1/B, rukka Ex.PW1/A. He also seized the travel
documents Ex.P1 vide seizure memo Ex.PW1/C, photocopy of
the air ticket Ex.P2.
5. PW2 HC Gopi Chand stated that on 05.12.1985, accused Darshan
Singh made disclosure statement in his presence Ex.PW2/A.
6. PW3 SI P. C. Maan stated that on 04.12.1985, he received
complaint sent by SI Mohinder Singh (immigration) upon which
duty officer recorded the FIR Ex.PW1/B and HC Gautam
prepared the seizure memo Ex.PW1/C and he arrested accused
Darshan and conducted his personal search vide personal search
memo Ex.PW3/A. He also received the report of POE stamp on
19.03.1986 which is Ex.PW3/B.
The above witnesses PW1 to PW3 were examined under Section
299 Cr. P. C. only as accused was declared absconder whereafter
the case file was consigned to record room. After apprehension
of accused on 13.05.2022, he was produced before the concerned
court and the main case file was called from Record Room
Patiala House Court and matter was proceeded from the stage of
arguments on charge. In the prosecution evidence, following
witnesses were examined.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 4 of 24
7. PW1 Major Singh deposed that he got his passport registered
from Jalandhar in the year 1980-1981. He further stated that one
Balwinder Singh, who was a resident of a neighbouring village
Dotiyan which was about 5-6 Kilometres away from his village
who used to do the work of agent. There was one another person
namely Nirvair Singh, who also used to work as an agent with
Balwinder Singh. The said Balwinder Singh got introduced to
him with Nirvair Singh who was a resident of his neighbouring
village. They enticed him that they could arrange to send him to
abroad. He further stated that he gave about Rs.10,000/- to
Rs.15,000/- to them for arranging to send him abroad and he
gave them his passport so that they could arrange for his
departure. Thereafter, they arranged for sending him abroad and
he took the passport and went to the Delhi Airport where he was
apprehended by immigration officers and he was taken to the
police station. The police officials had informed him that the
immigration stamp was forged and hence he could not be allowed
to travel on the said passport. Thereafter, he took the police
officials to the quarter of Balwinder Singh and Nirvair Singh in
Delhi but they could not be found. Police had recorded his
statement and got his signatures on one or two documents. The
police seized his passport. PW1 correctly identified his passport
bearing no.Q9J8258 as Ex.P1 and accused Darshan Singh present
in the court. As PW1 did not support the case of prosecution on
certain facts, the Ld. APP was granted permission to put him
questions in the nature of cross-examination, wherein he stated
that accused Darshan Singh was his cousin brother. He denied
the suggestion that accused used to work as a sub-agent and used
to frequently visit Delhi and that he had given a sum of
Rs.15,000/- to accused Darshan Singh for arranging to send him
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 5 of 24
to Egypt. He further denied the suggestion that the forged POE
stamp was marked on his passport by accused Darshan Singh in
connivance with the said Balwinder Singh. He further denied the
suggestion that he had handed over his original passport to
accused Darshan Singh for immigration clearance and that he
was deposing falsely to save accused Darshan Singh as he was
his cousin brother. In the cross-examination, he stated that he did
not give any written complaint to the police. The police officials
had not read over his statement to him. PW1 further stated that
accused Darshan Singh used to work as a driver at the time of
incident and is still doing the same work as on today.
8. PW2 Retd. ACP Mahender Singh deposed that on 04.12.1985,
one Sardar Jagtar Singh came to his counter for immigration
clearance and presented his passport, boarding pass and air ticket.
Upon checking the passport, he noticed that the protector of
immigrant stamp affixed on the passport seemed to be fake.
Upon inquiry from Jagtar Singh, he said that the stamp had been
affixed by one Balwinder Singh who was introduced to him by
his cousin Darshan Singh. On this, a complaint was sent to SHO,
PS Palam Airport for registration of FIR, alongwith the accused
Jagtar Singh and passport, boarding pass and air ticket through
Ct. Ram Gopal. The witness correctly identified the complaint
Ex.PW1/A, passport of accused Major Singh and has pointed out
towards the fake stamp of protector of immigrants at page no.29
Ex.P1 (colly). The witness stated that the name of the accused
was Major Singh and he had mistakenly referred to him as Jagtar
Singh as about 37 years have elapsed since the incident. The
witness correctly identified the embarkation card and air ticket as
Ex.PW2/A (colly).
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 6 of 24
9. PW3 Retd. ACP Prakash Chander Mann deposed that on
04.12.1985, Ct. Ram Gopal came to the police station from
Immigration and brought one pax Major Singh alongwith his
passport, boarding pass, embarkation card and a tehrir written by
SI Mahender Singh and got the present FIR registered which was
thereafter handed over to him for investigation. During
investigation, it was found that the passport of Major Singh was
genuine. As no fault of Major Singh could be identified in the
initial investigation, hence he was discharged. During
investigation, the aforesaid documents were seized. He recorded
the statement of witnesses and got verified the POE stamp from
the office of Protector of Emigrants, Jaiselmer House, Delhi and
received their reply upon his request Ex.PW3/B itself that the
signatures and stamp of Protector of Emigrants, New Delhi at
page no.29 of the passport were forged. During investigation,
accused Darshan Singh, who was an agent, was arrested and
personally searched. During investigation, even after much
efforts the forged stamp which was used by the accused persons
could not be found and neither the co-accused Balwinder Singh
who was stated by accused Darshan Singh, to be the one who
affixed the same on the passport of Major Singh was not found.
As the investigation had already been completed, he prepared the
charge-sheet and filed before the court for adjudication. The
witness correctly identified accused Darshan Singh present in the
court. In the cross-examination, he stated that he recorded the
statement of Major Singh. He had written the same in his own
handwriting. He recorded the disclosure statement of accused
Darshan Singh in the day time, however, he did not remember
the exact time at which the same was recorded. He had gone
through the police file prior to the recording of his evidence as
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 7 of 24
the matter pertains to the year 1985 and he had investigated the
same about 37 years ago. The arrest memo of accused was not
on record. Nor any DD entry regarding the arrest of accused was
on record. Other than the statement of Major Singh, there was
nothing on record to establish that the accused Darshan Singh
was involved in the incident.
10. PW4 Retd. SI Ram Gopal, deposed that on 04.12.1985, he took a
tehrir handed over to him by SI Mahender Singh, Immigration
along with the custody of the accused Major Singh, one passport
bearing no. Q918258 which belong to Major Singh and upon it at
page no.29, one fake stamps protractor of immigrate was there he
also took the boarding card of flight no. 481, one Embarkation
card bearing No. ACNo. 0002809 and one ticket bearing no. 131-
9452-210-159 in the name of Major Singh and handed over the
same to duty officer Gautam, No. 35P. The documents were
seized. IO SI PC Mann recorded his statement and thereafter, he
was discharged. In the cross-examination, he stated that the case
is about 37 years old and he had mentioned the details after going
through the FIR.
11. PW5 Devender Pratap Verma deposed that he was appearing in
the court on behalf of Regional Passport Office, Jalandher,
Punjab. He produced the record (photocopy) of passport no.
Q918252 issued dated 07.07.1981 as per the record the above
said mentioned passport was issued in the name of Sh. Major
Singh S/o Sh. Sharwan Singh. The photocopy of the above said
record taken on record as Mark (colly) and certificate 65B of IEA
as Ex.PW5/A. In the cross-examination, he stated that at the time
of preparation of above said passport he was not present at the
office where the above said passport was made. He did not know
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 8 of 24
the name of the officer who issue/made the above said mentioned
passport and he did not know who made entry in PER register
regarding the passport at serial no.6078 PER at Point B.
12. PW6 HC Jasbir Singh deposed that on 13.05.2022, he received
secret information from secret informer regarding the PO
(accused). He also came to know that accused was declared PO
by the concerned court in FIR no.169/85 PS Domestic Airport on
02.04.1994. Thereafter, he and Ct. Rohtas alongwith secret
informer reached near Keshav Pur Subzi Mandi, Tilak Nagar.
After reaching there, secret informer correctly identified the
accused and pointed out towards him and thereafter, secret
informer left the spot. Ct. Rohtash apprehended the accused.
Thereafter, he arrested accused u/S 41.1 (c) Cr. P. C. vide arrest
memo Ex.PW6/A and conducted personal search of accused vide
personal search memo Ex.PW6/B. Thereafter, Ct. Rohtash Singh
alongwith accused went to Sanjay Gandhi Hospital, Mangol Puri
for medical examination of accused at his directions. After
medical examination of accused, Ct. Rohtash and accused
reached at PS Nangloi. Thereafter, he produced the accused
before concerned court and concerned court sent him to JC. He
also shared the information (arrest of accused) with DO, PS
Domestic Airport. He also prepared kalandra regarding the same
Ex.PW6/C. The witness correctly identified accused present in
court. In the cross-examination, he stated that he alongwith Ct.
Rohtash and secret informer reached at the spot at about 12:30
pm. When we reached at the spot, some public persons were also
present there at that time. He did not record statement of any
public person who were present at the spot at the time of arrest of
accused. He did not serve any notice upon the public persons for
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 9 of 24
not joining the investigation. He left the spot finally at about
01:00 pm.
13. On account of admission of accused u/s 294 Cr.P.C, remaining
witnesses in the prosecution list were dropped and the formal
proof of the documents sought to be proved by them was
dispensed with. No other PW was left to be examined, hence, PE
was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
14. Thereafter, before the start of defence evidence in order to allow
the accused person to personally explain the incriminating
circumstances appearing in evidence against him, the statement
of the accused person was recorded on 29.07.2024 without oath
under section 281 r/w 313 CrPC, wherein he has stated that
complainant was his cousine brother and one night prior to the
departure of complainant, complainant had stayed at his place.
Accused further stated that he had no knowledge as to how and
from whom complainant procured his travelling documents.
Accused further stated that he never met other person namely
Balwinder Singh and Nirvair Singh ever. Accused stated that he
was innocent and had falsely been implicated in the present case.
He further stated that he did not want to lead defence evidence.
FINAL ARGUMENTS
15. I have heard the Ld. APP for the State and Ld. Counsel for the
accused at length. I have also given my thoughtful consideration
to the material appearing on record.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 10 of 24
16. It is argued by the Ld. APP for the State that all the ingredients of
the offence are fulfilled in the present case. He has argued that
prosecution witnesses have categorically deposed about the
commission of offence and there is no ground to disbelieve their
testimony. He further contends that the documentary evidence
has proved the offence beyond reasonable doubt. As such, it is
prayed that the accused be punished for the said offences.
17. Per contra, the Ld. Counsel for the accused has argued that the
State has failed to establish its case beyond reasonable doubt.
The Ld. Counsel further argued that the entire case of the
prosecution is false and fabricated and the same is evident from
the material inconsistencies and contradictions borne out from
the material on record. It is argued that the identity of the accused
being the driver of the offending vehicle is not established and
prosecution has failed to discharge the burden cast upon it . As
such, it is prayed that the accused be acquitted for the said
offence.
INGREDIENTS OF THE OFFENCE
18. Accused has been charged under the following provisions which
are as follows:
Section 420. Whoever cheats and thereby dishonestly induces the person
deceived to deliver any property to any person, or to make, alter or destroy
the whole or any part of a valuable security, or anything which is signed or
sealed, and which is capable of being converted into a valuable security,
shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
Section 468. Forgery for purpose of cheating. –Whoever commits forgery,
intending that the [document or electronic record forged] shall be used for
the purpose of cheating, shall be punished with imprisonment of either de-
scription for a term which may extend to seven years, and shall also be
liable to fine.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 11 of 24
Section 471. Using as genuine a forged- 1[document or electronic record].
–Whoever fraudulently or dishonestly uses as genuine any 1[document or
electronic record] which he knows or has reason to believe to be a forged
1[document or electronic record], shall be punished in the same manner as if
he had forged such 1[document or electronic record].
“174A .Non-appearance in response to a proclamation under section 82 of
Act 2 of 1974.– Whoever fails to appear at the specified place and the
specified time as required by a proclamation published under sub-section
(1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished
with imprisonment for a term which may extend to three years or with fine
or with both, and where a declaration has been made under sub-section (4)
of that section pronouncing him as a proclaimed offender, he shall be
punished with imprisonment for a term which may extend to seven years
and shall also be liable to fine.”
19. The allegations levelled against the accused are segregated into
two parts, firstly pertaining to offences related to section
420/468/471/34 IPC and second pertaining to offence related to
section 174A IPC.
20. It is trite law that the burden always lies upon the prosecution to
prove its case beyond reasonable doubt on the basis of acceptable
evidence and that the law does not permit the Court to punish the
accused on the basis of moral conviction or on account of
suspicion alone. Also, it is well settled that accused is entitled to
the benefit of every reasonable doubt in the prosecution story and
such doubt entitles him to acquittal.
APPRECIATION OF EVIDENCE
21. The first set of allegations revolves around commission of offence
under Sections 420/468/471/34 IPC, in which prosecution has to
prove that the accused dishonestly induced the complainant
Major Singh to deliver him Rs.15,000/- on the pretext of getting
his passport cleared to enable the complainant to board the flight
to Cairo, Egypt by committing forgery of the Protector of
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 12 of 24
Emigrants (POE) stamp on the passport of complainant knowing
that the stamp used by the accused in connivance of other co-
accused was forged and despite the same used the said forged
stamp of POE as genuine.
22. According to Section 415 of the IPC, cheating is defined as
deceiving an individual fraudulently or dishonestly in order to
persuade that person to deliver or consent to keep the property.
That when a person fraudulently, dishonestly, or knowingly
encourages another person to do or omit something that he would
not have done if he hadn’t been misled, and the act causes
damage to that person’s body, mind, reputation, or property, that
individual is said to cheat. Literal meaning of the word cheating
is that it is done in order to gain profit or an advantage from
another person by using some deceitful means. The person who
deceives another knows for the fact that it would place the other
person in an unfair situation.
23. The section is divided into two distinct clauses. Under the first
clause, the person deceived must have been fraudulently or
dishonestly induced to deliver property. The second clause does
not require the inducement to be fraudulent or dishonest. But it
requires that by reason of the intentional inducement, damage or
harm in body and mind, reputation or property was caused to the
person deceived. Thus, cheating may be committed in either of
the two ways. Cheating is punishable under section 417 IPC.
24. For the purpose of proving the offence under Section 420 IPC,
prosecution was mandated to prove that the accused Darshan
Singh deceived the complainant Major Singh by inducing him to
deliver an amount of Rs.15,000/- for enabling the passport of the
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 13 of 24
complainant with stamp of POE for boarding the flight of Cairo,
Egypt.
25. As per the complainant / PW1, he got his passport registered from
Jalandhar in the year 1980-81 and he got into contact with one
Balwinder Singh resident of his neighboring village who
introduced him further with one Nirvair Singh as both worked as
an agent. PW1 categorically stated that they both induced him
stating that they would arrange for sending him abroad and
accordingly, PW1 gave Rs.10,000/- to Rs.15,000/- to them and
further gave his passport to both the said persons for arranging
his departure. PW1 further stated that thereafter he took his
passport to Delhi Airport where he was apprehended by the
immigration officers and he was taken to the police station where
police officials informed him that his immigration stamp was
forged. PW1 further stated that thereafter, he took the police
officials to the quarter of Balwinder Singh and Nirvair Singh in
Delhi where they both were residing but both of them were not
found there. Thereafter, police recorded his statement and seized
his passport. PW1 correctly identified his passport as Ex.P1 and
also identified accused Darshan Singh.
26. As complainant PW1 did not state anything against the accused,
accordingly Ld. APP was granted permission to cross-examine
him and in the cross-examination by Ld. APP, complainant
admitted that accused Darshan Singh is his cousin and further
denied all the suggestions put by Ld. APP implicating the
accused person. Perusal of the said testimony of PW1 clearly
reveals that he did not support the prosecution case on material
terms. Further, in the cross-examination by the Ld. Defence
Counsel PW1 stated that he did not give any written complaint to
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 14 of 24
the police and that the accused was working as a driver at the
time of incident.
27. At the outset, the entire narrative of prosecution case hinges upon
the testimony of PW1 being a victim of alleged cheating and
forgery done on his passport. Nevertheless, as noted hereinabove
PW1 did not make even a slight implication against the accused
person in his testimony as he did not make any imputation
against the accused or role played by the accused in the entire
process of him getting travel clearance for his departure to Egypt.
Accordingly, the deposition of PW1 accords no support to the
prosecution as far as indictment of accused person qua the
Section 420 IPC is concerned. This cast a fatal blow to the case
of prosecution as there is no other witness, either ocular /
documentary, direct or circumstantial on record to show
involvement of accused Darshan Singh in the alleged incident.
PW1 has not made any implication against the accused stating
that any wrongful loss or deception was played by the accused
against him.
28. Further, the offence of 468 IPC against the accused shall be
attracted by proving that accused committed forgery by putting
false stamp of Protector of Emigrants (POE) on the passport of
complainant intending the said document to be used for the
purpose of cheating whereas for Section 471 IPC it has to be
shown that accused in connivance with other co-accused
dishonestly used the forged POE stamp as genuine which he
knew to be a forged stamp.
29. The making of false documents by a person is defined u/s 464
IPC. As far Section 465 IPC is concerned, this provision lays
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 15 of 24
down the punishment for offence of forgery. The offence of
forgery has been defined u/s 463 IPC as making of any false
documents or electronic record or part thereof with an intent to
cause damage or injury to public or any person, or to support any
claim or title or to cause any person to part with the property or
to enter into any express or implied contract or with the in-tent to
commit fraud or that fraud may be committed.
30. The basic elements of forgery are:
(a) The making of a false document or part of it and;
(b) Such making should be with such intention as is specified in section,
viz.,
(i) To cause damage or infringe to the public or any person.
(ii) To support any claim or title.
(iii) To cause any person to part with any property.
(iv) To cause any person to enter into expressed or implied contract or;
(v) To commit fraud or that fraud may be committed.
31. A full bench of Supreme Court in Ram Narayan Popli v. CBI,
(2003) 3 SCC 641, had occasion to deal with the ingredients of
forgery and while dealing with this question, the court observed
as follows:-
“The first essential is that the accused should have made a
false document. The false document must be made with an
intent to cause damage or injury to the public or to any class
of public or to any communities.”
32. The court further observed that “the definition of the offence of
forgery declares the offence to be completed with a false
document is made with specified intention.
The questions are (I) is the document false, (ii) is it made
by the accused and (iii) is it made with an intent to defraud. If at
all the questions are answered in the affirmative, the accused is
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 16 of 24
guilty.” The aforesaid observations of the Supreme Court made it
amply clear that in order to constitute forgery, the first ingredient,
which requires to be established is making of a false document.
While dealing with question of making of false document,
Supreme Court in Mohd. Ibrahim & Ors. v. State of Bihar (2009)
8 SCC 751, held as under:-
“In short, a person is said to have made a false document, if (i)
he made or executed a document claiming to be someone else
or authorized by someone else; or (ii) he altered or tempered a
document; or (iii) he obtained a document by practicing
deception, or from a person not in control of his sense.”
33. The prosecution is relying on the testimony of PW3 Retired ACP
Prakash Chander Maan and PW5 Devender Pratap Verma for
proving the charges under Sections 468/471 IPC. PW3 stated that
on 04.12.1985 Ct. Ram Gopal came to the police station from
immigration along with one passenger Major Singh alongwith his
passport, boarding pass, embarkation card whereafter he got
registered the present FIR. PW3 further stated that during
investigation, he found that the passport of passenger Major
Singh was genuine. PW3 further stated that he got the POE stamp
verified from the office of Protector of Emigrants, Jaisalmer
House, Delhi whereafter he received their reply on his request
letter itself stating that page no.29 of the passport of
passenger/PW1 was forged, the said letter is Ex.PW3/B. PW3
further stated that thereafter he arrested accused Darshan Singh
as an agent. However, despite much efforts the forged stamp used
by the accused person was not found nor the other co-accused
person Balwinder Singh was traced. While PW5 testified
regarding the verification of the passport of complainant stating
that the passport no.Q918252 issued dated 07.07.1981 in the
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 17 of 24
name of Major Singh accordingly, passport was found to be
genuine.
Perusal of the testimony of both PW3 and PW5 reveals
that passport of passenger PW1 was found to be genuine.
However, upon verification the POE stamp on page no.29 of the
passport was found to be forged.
34. Further as per the prosecution, during investigation, the
documents that is the POE stamp as visible in the passport of the
complainant were verified from the office of Protector of
Emigrants, Jaisalmer House, Delhi and upon receiving their reply
that the said stamp was found to be forged. PW3 stated that he
sent the letter Ex.PW3/B upon which the reply was given.
Perusal of the same reveals that the reply was given by Protector
of Emigrants namely Anand Hari dated 19.03.1986. The said
witness was cited as a prosecution witness as per the prosecution
witness list. However, despite various efforts that said witness
was not served and traceable and the records pertaining to him as
well as the record qua the Protector of Stamp working on the date
mentioned at page no.29 of the passport could not be procured.
The said witness as mentioned at serial no. 7 of the prosecution
witness list could not be traced despite various correspondences
received from the concerned Ministry of the Government of India
and accordingly vide order sheet dated 30.04.2024 finally, the
said witness was dropped from the prosecution witness list as no
records or details were procured from the concerned ministry.
Therefore, there is no evidence on record establishing that the
POE stamp as visible on the page 29 of the passport of the
complainant as seized was forged.
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 18 of 24
35. Before proceeding ahead, it is to be mentioned that the Protectors
of Emigrants are responsible for granting emigration clearance to
the intending emigrants as per the procedure prescribed under the
Emigration Act, 1983. PGE under Ministry of External Affairs is
the authority responsible for protecting the interest of Indian
workers going abroad. PGE is also the registering authority to
issue Registration Certificate to the Recruiting Agents for
overseas manpower exporting business.
36. From the above discussion, it is evidently clear that the stamp of
Protector of Emigrants (POE) on the passport of complainant in
question was never issued by the Protector of Emigrant as per the
investigation however, prosecution failed to prove the same as
per the provisions of Evidence act as the relevant person and
record could not be brought before the Court and thereby not
establishing the fact that stamp of Protector of Emigrants (POE)
on the passport of complainant was a fake or forged document.
Furthermore, it does not exonerate the prosecution to prove that
same was recovered from accused Darshan Singh or that accused
prepared the same. There is no admissible evidence on record to
establish that the stamp of POE was false or that it was made by
the accused or the manner in which the accused forged the stamp
of POE.
37. Furthermore, to bring home an offence under section 471 of IPC
the prosecution is to prove that the document concerned was
forged and that accused used such document and that he knew or
had reason to believe that the same was forged and he
nevertheless used the same as genuine one fraudulently or
dishonestly. The allegations against accused are that he had
fraudulently or dishonestly used the forged stamp of Protector of
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 19 of 24
Emigrants (POE) on the passport of complainant as genuine
despite having the knowledge or reason to believe that it was a
forged document and had produced the same to the investigating
officer during the course of investigation of the present case.
38. The allegation of the prosecution regarding intentionally creation
of false document i.e. stamp of Protector of Emigrants (POE) on
the passport of complainant is not proved beyond reasonable
doubt as discussed in the preceeding paragraph thereby the
factum of use of said false document by the accused with the
knowledge of it being false does not arise as without concrete
evidence to demonstrate that the document is false, allegations
regarding its wrongful use lack a foundational basis. The initial
burden of proof by the prosecution has not been discharged
hence, the ingredients of section 471 are not made out.
Accordingly, accused Darshan Singh is acquitted for charge u/s
420/468/471 IPC.
39. The Second set of allegations which revolves around the accused
is commission of offence under Section 174A IPC.
Before proceeding further, it is relevant to produce the provision
of Section 82 Cr.PC. The same is as under:
“Proclamation for person absconding-
(1) If any Court has reason to believe (whether after taking evidence or not)
that any person against whom a warrant has been issued by it has absconded
or is concealing himself so that such warrant cannot be executed, such Court
may publish a written proclamation requiring him to appear at a specified
place and at a specified time not less than thirty days from the date of
publishing such proclamation.
(2) The proclamation shall be published as follows: –
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 20 of 24
(i)(a) it shall be publicly read in some conspicuous place of the
town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in
which such person ordinarily resides or to some conspicuous place of such
town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-
house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to
be published in a daily newspaper circulating in the place in which such
person ordinarily resides
(3) A statement in writing by the Court issuing the proclamation to the effect
that the proclamation was duly published on a specified day, in the manner
specified in clause (i) of sub- section (2), shall be conclusive evidence that
the requirements of this section have been complied with, and that the
proclamation was published on such day”.
40. PW6 is a formal witness examined by prosecution, who stated
that on 13.05.2022, he received secret information regarding PO
accused whereafter he arrested the accused vide arrest memo
vide Ex.PW6/A and produced the accused before the concerned
court. No other witnesses have been examined by the prosecution
except PW6 for establishing the charges under Section 174A
IPC.
41. After going through the case file and upon hearing the Ld. APP
for the State and the Ld. defence counsel, this Court has reached
to the conclusion that the prosecution has failed to duly prove its
case against the accused for commission of the offence
punishable under Section 174-A of Indian Penal Code on the
following grounds.
42. Declaring the accused as proclaimed person by the concerned Ld.
Court proves the satisfaction of the concerned court that the
accused has been avoiding service or concealing himself
deliberately and also that the proceedings under section 82 has
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 21 of 24
been satisfactorily been carried out. As per Section 82(3) of the
Cr.PC, the satisfaction of the concerned court is the conclusive
evidence that the requirements of this section have been
complied with and that the proclamation is published on such
date. However, once accused was declared P.O, prosecution of
the accused who was charged under section 174 A IPC was under
the bounden duty to prove each ingredient of the section 174A
IPC. For that examination of the process server who executed the
process under section 82 Cr. PC becomes an important and
relevant evidence and his examination is not only relevant for the
prosecution evidence, it is important for the accused as well so as
to afford him an opportunity for cross examination the process
server.
43. In the present case, before closing of the prosecution evidence,
Ld. APP stated that there was no document relating to the process
server who executed the process under section 82 Cr.PC and
accordingly prosecution evidence was closed.
Here, it needs to be highlighted that the case record was
requisitioned from Patiala House Court as the case file was
consigned to record room as accused was declared PO in the
present case FIR vide order dated 02.04.1994. Although the
statement of process server who executed the process under 82
Cr.PC must have been with the case file but the same are not.
Court is mindful of the fact that the matter relates to about 20
years back and it was the duty of the concerned official to
maintain such record. However accused cannot be burdened with
liability if the prosecution fails to establish the ingredients of the
applicable offence. This principle ensures that justice is not
derailed by procedural lapses or time gaps and that the focus
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 22 of 24
remains on the substantive merits of the case, protecting
individuals from wrongful convictions based on insufficient or
unsubstantiated claims.
44. In the criminal trial it is duty of the prosecution first to establish
its case, before the onus shifts on the accused. Prosecution is
supposed to stand on its own legs and it cannot derive any
benefits whatsoever from the weakness, if any, in the defence of
the accused. In the absence of the statement/ report of the Process
server who executed the process under section 82 Cr.PC and
without examining process server who executed the process
under section 82 Cr.PC against the accused which is not only
important for the prosecution case but it would have also
afforded an important opportunity to the accused to cross
examine him, accused lost a valuable right to test the testimony
of the said witness on the anvil of cross examination. The only
evidence led by the prosecution is PW6 who arrested the accused
later on. There is no evidence on record led by prosecution to
show that the process server went to the admitted address of the
accused person and thereafter duly executed the process under
Section 82 Cr.PC including the publication of proclamation.
Accordingly, there is no substantive evidence on record to show
that accused failed to adhere to the directions of proclamation
which was issued in accordance with Section 82 Cr. P.C.
CONCLUSION
45. The upshot of the discussion, and the surrounding circumstances
in which the accused Darshan Singh was apprehended and joined
in the investigation, prosecution has not been able to establish
beyond reasonable that accused Darshan Singh cheated
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 23 of 24
complainant by conniving with other co-accused by forging the
stamp of protector of emigrants in the passport of the
complainant for enabling him to board the flight to Cairo, Egypt.
Prosecution also failed to establish and prove against the accused
the offence under section 174A IPC.
46. Prosecution has the bounden duty to discharge the initial onus
before it can shift on to the other party. Several reasonable doubts
have emerged in the narrative put forth by prosecution as
analyzed hereinabove. The basic ingredient of Section
420/468/471/174A/34 IPC has not been proved and the
inescapable conclusion is that the accused Darshan Singh is
entitled to benefit of doubt.
47. Accordingly, this Court hereby accords the benefit of doubt to the
accused Darshan Singh for the offence punishable u/s
420/468/471/174A/34 IPC IPC and holds the accused not guilty
of commission of the said offence. Accused Darshan Singh s/o
Buta Singh is thus, acquitted of the offence u/s
420/468/471/174A/34 IPC.
Announced in the open court
on 14.01.2025 in the presence
of the accused.
(Abhinav Ahlawat)
Judicial Magistrate First Class-09,
Dwarka, Delhi/14.01.2025
Note:- This judgment contains 24 pages and each page has been
signed by me.
(Abhinav Ahlawat)
Judicial Magistrate First Class-09,
Dwarka, Delhi/14.01.2025
FIR No.169/1985, PS Domestic Airport State vs. Darshan Singh Page 24 of 24
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