Delhi District Court
State vs Zafar @ Samit on 6 March, 2025
IN THE COURT OF
JUDICIAL MAGISTRATE-01
EAST DISTRICT, KKD COURTS, DELHI.
TITLE: : State v. Zafar & Anr.
FIR No. : 198/2001
CNR No. : DLET020003322003
P.S. : Gandhi Nagar
Date of commission of offence : 28.01.2001
Name of Informant/complainant : Manish Jain
Name of accused : (1) Zafar (2) Mukesh Sharma
Offence/s complained of : s. 420/467/468/471/34 IPC
Cognizance under section/s : s. 420/467/468/471/34 IPC
Charges framed under section/s : s. 420/467/468/471/34 IPC & 174A IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 01-03-2025
Date of pronouncement : 06-03-2025
Final Order : Convicted u/s 420/471/34 IPC
For the Prosecution : Ld. APP
For the accused. : Mr. Vinod Sharma and Sh. I. A. Rehmani
Present : Pritu Raj
J.M. F.C.-01,
KKD Courts, Delhi.
FIR No. 198/2001 State vs. Zafar & Anr. Page 1 / 25
JUDGEMENT
1. The accused Zafar and Mukesh Sharma are facing trial for offences u/s.
420/467/468/471/34 & 174A Indian Penal Code, 1860. (Hereinafter ‘IPC‘).
2. Stated succinctly, the facts germane for the prosecution of the case is that the
complainant claims to be in the business of selling clothes at IX/3430, Sundar
Chowk, Mahavir Gali, Gandhi Nagar, Delhi-31. He claims that on 28.07.2001,
one Mukesh Sharma and his friend Rakesh Mittal came to his shop and bought
goods of Rs. 70,000/-. As payment, Rs. 30,000/- was given in cash and two De-
mand Drafts of Rs. 19,940/-, each, bearing No. 842164 and 842170 payable at
UCO Bank, Mumbai was given. Complainant states that he gave both the drafts
as payment with one of the drafts being given to one Om Prakash Gupta. Com-
plainant states that on 29.08.2001, Om Prakash Gupta gave him the Parchi of the
draft and stated that draft no. 842164 is fake. Subsequently, complainant called
Mukesh Sharma to his shop while making a call to the Police Station, leading to
the present case.
3. On the written application of the complainant, Gandhi Nagar P.S. registered in
relation to the above incident FIR no. 198/2001 on 29.08.2001 and, after investi-
gation, submitted the charge sheet on 14.02.2003 against the accused persons u/
s. 420/467/468/471/34 IPC. Cognizance was taken vide order dated 14.02.2003.
FIR No. 198/2001 State vs. Zafar & Anr. Page 2 / 25
Accused Zafar had entered appearance on 30.06.2003 whereas accused Mukesh
was declared PO on 08.02.2006. He was subsequently arrested and admitted to
bail on 17.05.2006. Proceedings u/s. 207 were complied qua accused Mukesh
Sharma on 30.05.2006 whereas copies were supplied to accused Zafar on
13.04.2006.
4. Charges u/s. 420/467/468/471/34 IPC were framed against accused persons
12.09.2007 whereas additional charge u/s. 174A IPC was framed against accused
Mukesh Sharma on 09.09.2020 and read over to the accused, in Hindi, to which
they claimed to be not guilty.
5. The prosecution, in order to prove the case beyond all reasonable doubt, exam-
ined fourteen witnesses.
6. PW-01 Rajesh Kumar deposed that he has a shop Rishabh Fabrics at 9/6631 main
Nehru Gali, Gandhi Nagar, Delhi. On 13.06.2001, accused Mukesh Sharma,
owner of Keshav Textiles, came to his shop for purchasing clothes for the value
of Rs. 870662 and gave him three drafts and one cheque and the witness further
forwarded these drafts and cheque to his party. When the draft was deposited by
the party, he came to the witness and stated that the aforesaid cheque and drafts
were fake. Mukesh Sharma had handed over fake drafts and cheque. Thereafter,
this witness tried to search Mukesh Sharma and got to know that many other per-
FIR No. 198/2001 State vs. Zafar & Anr. Page 3 / 25
sons had been cheated in the same manner. He alongwith other merchant in-
formed the police and his statement was recorded. This witness correctly identi-
fied accused Mukesh in court.
7. PW-02, Har Charan Singh deposed that he has a business of Textiles at 26 & 27
Main Road, Gandhi Nagar, Delhi. On 22.08.2001 and 24.08.2001, accused
Rakesh Mittal and Mukesh Sharma came to his shop and purchased clothes of Rs.
1,20,000/- and paid 06 drafts of Rs. 19940, each. He stated that he took one draft
and went to Syndicate Bank, Chandni Chowk, where he came to know that the
draft was fake. The draft was impounded by the Bank and photocopy of the same
given to the witness who then came to know that he was cheated. The remaining
drafts had already been forwarded to other parties by the witness. The fake drafts
were handed over to this witness by Mukesh Sharma and Rakesh Mittal and PW
Manish Jain informed this witness that Mukesh Sharma had been apprehended.
This witness went to the Police Station and handed over the photocopy of fake
draft and his statement was recorded. This witness correctly identified accused
Mukesh Sharma and Zafar @ Rakesh Mittal @ Sameer.
8. PW-03, Manish Jain deposed that he has a shop of textiles at IX/3430, Sundar
Chowk, Mahavir Gali, Gandhi Nagar, Delhi. On 28.07.2001, accused Mukesh
Sharma, owner of Keshav Textile, and his friend Rakesh Mittal came to his shop
and purchased clothes of Rs. 70,000/-. Rs. 30,000/- was given in cash and two
FIR No. 198/2001 State vs. Zafar & Anr. Page 4 / 25
drafts of Rs 19940/- each, bearing no. 842164 and 842170 payment at UCO
Bank, Mumbai was given and accused Mukesh Sharma had also signed on the
slip. Draft bearing no. 842164 was exhibited as Ex. PW3/A. This witness for-
warded these drafts for payment to other party and one draft was given to Om
Prakash Gupta who, on the next date, informed him that the draft was fake. Om
Prakash Gupta returned the aforesaid draft no. 842164. This witness called ac-
cused Mukesh Sharma at his shop and also informed the police who came to the
shop after some time. Accused and Bank slip were handed over to the police who
recorded his statement. Statement is Ex. PW 3/B. Disclosure statement of ac-
cused was recorded and the same is Ex. PW3/C. Accused was arrested and per-
sonally searched vide personal search memo Ex. PW 3/D. The bank slip handed
over to Police is Ex. PW3/E. This witness correctly identified both the accused
persons.
9. PW-04, Harish Kumar deposed that he has a shop of ready-made garments at
216, Main Road, Gandhi Nagar, Delhi in the name and style of Jayanti Fabrics.
He did not remember the exact date. On that date, accused Mukesh Sharma and
accused Zafar came to his shop and purchased clothes of approximately Rs.
100,000/- and paid by draft. This witness came to know through bank that the
said draft was fake. The accused persons were handed over to the police and this
witness had correctly identified them. Upon cross examination by Ld. APP, this
witness stated that it is correct that accused had purchased clothes of Rs.1.10 lacs
FIR No. 198/2001 State vs. Zafar & Anr. Page 5 / 25
and that some drafts were forwarded for payment by him and some were with this
witness. He stated that on 29.08.2001, the accused persons came to his shop for
purchase cloth of amount of Rs. 70,000/- and handed over three drafts of State-
ment Bank of Mysore payable from Bombay of Rs. 19940/- each and one draft of
Rs. 9960/- of State Bank of Hyderabad, issued by DVG Road, Gohawati which is
Ex. PW4/A. He stated that he was informed by the bank that there was no branch
of Syndicate bank at DVG Road, Gohawati. The drafts which were handed over
to the accused were Ex. PW 4/B to Ex. PW4/D.
10. PW-05, Ms. Sarita Kulkarni deposed that on 09.08.2001, she was posted as As-
sistant Bank manager, UCO Bank (1735) Service Branch, MG Road, Mumbai.
She had given the return memo (already Ex. PW 3/E) dated 09.08.2001 to OBC
Bank of DD No. 842164 for an amount of Rs 19940/- in return for the reason as it
was a fake DD.
11. PW-06, Sh. Ritesh Kumar deposed that he was working with the State Bank of
Mysore, Surat main branch, Gujarat since October 2010 and had been authorized
to attend the court by the Manager of the Branch. He deposed that there is no
branch of State Bank of Mysore at Kota, Rajasthan and that there was no branch
of State Bank at Mysore in 2001 and the Demand Drafts bearing no. 705165,
705163 and 705164 all dated 09.08.2001 and each for Rs. 19940/- allegedly is-
sued from State Bank of Mysore, Kota Main Rajasthan Branch are fake and were
FIR No. 198/2001 State vs. Zafar & Anr. Page 6 / 25
never issued from the alleged branch as State Bank of Mysore never had any
branch in Kota Main Rajasthan. The aforesaid drafts were Mark A, Mark B and
Mark C. This witness identified the signatures of S.Rao deputed as Manager at
Surat Branch of State Bank of Mysore in the year 2002 on the basis of record
available with the Surat Branch of the Bank. One letter dated 20.04.2002 written
by the then Branch Manager S. Rao to SI Kailash Singh Bisht (exhibited as Ex
PW6/A) bears the signature of S. Rao at point A.
12. PW-07 Sh. Satish Kumar, AGM, Oriental Bank of Commerce, Kalba Devi,
Mumbai, deposed that as per record available in the aforesaid branch of OBC,
draft no. 842164 dated 13.07.2001 of Rs. 19940/- in favour of Pradeep Jain
drawn on UCO Bank, Mumbai Branch (Code 1739) was deposited and the same
was forwarded by UCO Bank, Service Branch, MG Road, Mumbai for encash-
ment. The said draft was returned back by the said UCO Bank bearing remark
that it is fake “DD: at serial no. 17. Memo is already Ex. PW 3/E. Thereafter, a
memo dated 18.08.2001 was issued by the OBC with the remarks fraudulent DD.
The memo is Ex. PW 7/A.
13. PW-08, retired SI Suraj Bhan deposed that on 19.08.2001, he was posted as HC
at PS Gandhi Nagar. On that date, he joined the investigation of the present case
alongwith SI Kailash Singh Bisht. He alongwith the IO visited the shop no.
9/3430, Mahavir Gali, Sundar Chowk Gandhi Nagar, Delhi in connection with
FIR No. 198/2001 State vs. Zafar & Anr. Page 7 / 25
the apprehension of a person who used to give forged drafts. One Manish Jain
met them there who produced the accused namely Mukesh Sharma alongwith
some documents. Accused Mukesh Sharma was correctly identified by this wit-
ness. Manish Jain made his statement to the IO on which he made his endorse-
ment and handed over the same to the witness for registration of FIR which was
duly registered. Subsequently, the IO arrested accused Mukesh Sharma in the
presence of this witness and his personal search was conducted. Accused was in-
terrogated in presence of this witness and his disclosure statement was recorded.
Subsequently, the IO recorded the statement of this witness.
14. PW-09 ASI Suresh Chand was the duty officer and he deposed about the registra-
tion of FIR.
15. PW-10, Ct. Devender Sharma deposed that on 10.01.2002, he was posted at PS
Gandhi Nagar as Ct and on that day, he alongwith SI Kailash Singh Bisht and Ct.
Tehjeeb Haider had joined the investigation of the case. On that day, he along-
with the IO went to West Rohtash Nagar and arrested accused Zafar at instance
of informer. This witness correctly identified accused Zafar in court. Accused
was formally arrested and personally searched and later on IO recorded the state-
ment of this witness.
FIR No. 198/2001 State vs. Zafar & Anr. Page 8 / 25
16. PW-11 Inspector Kailash Singh Bisht deposed that on 29.08.2001, he was posted
at PS Gandhi Nagar and on that day, he received DD No. 28A regarding a call
from Manish Jain on receipt of DD entry, he alongwith HC Suraj Bhan reached at
the spot where he met Manish Jain who handed over accused Mukesh Sharma to
this witness alongwith one draft of UCO Bank and gave his statement (Ex. PW
3/B). Subsequently, this witness endorsed the rukka (Ex. PW 11/A) and handed
over the same to HC Suraj Bhan for registration of FIR and the FIR was regis-
tered. This witness interrogated accused Mukesh Sharma, arrested him and con-
ducted his personal search while also recording his disclosure statement. During
investigation, this witness recorded the statement of other witnesses u/s. 161
Cr.PC and took the seven drafts of various banks from witnesses. This witness
deposed that accused Mukesh Sharma revealed that he used to take draft from
one Zafar @ Rakesh Mittal. On 10.01.2002, on secret information, this witness
arrested accused Zafar from PS Gandhi Nagar vide arrest memo Ex .PW 11/E
and his personal search was conducted vide personal search memo Ex. PW 11/B.
This witness recorded disclosure statement of accused Zafar Ex. PW 11/C. Ac-
cused Zafar had refused to participate in TIP Proceedings. This witness sent dif-
ferent drafts collected from the witnesses for its verification to the concerned
bank and received report from the same. Reports are already Ex. PW 6/A, Ex.
PW 3/E and Ex. PW 7/A. This witness correctly identified accused Zafar and the
identity of accused Mukesh Sharma was not disputed by the counsel for said ac-
cused.
FIR No. 198/2001 State vs. Zafar & Anr. Page 9 / 25
17. PW -12, ASI Subhash Chand deposed that on 18.04.00 he was posted at PS
Gandhi Nagar and about 08.30 pm, he was on patrolling duty alongwith HC
Virender, Ct. Governor and Ct. Tehjeeb Haider in area of PS Gandhi Nagar
where a secret informer met HC Virender and informed him that one accused
who has been declared proclaimed offender in one case of PS gandhi Nagar is
present at Mahila Colony road and if raided can be apprehended. Accordingly,
they all moved to Mahila Colony Road at the instance of secret informer appre-
hended accused Mukesh. On interrogation, accused Mukesh accepted that he had
been declared PO in one case registered at PS Gandhi Nagar. Thereafter, HC
Virender made inquiry from the PS regarding the involvement of accused and
found that he has been declared as absconding in the present case. HC Virender
formally arrested the accused and conducted his personal search. The accused
was medically examined and put in lock-up and produced before the court on
next day. The identity of accused was not disputed by the accused.
18. PW-13, retired SI Birender Singh deposed that on 18.04.2006, he was posted as
HC at PS Gandhi Nagar. On that day, he was on patrolling duty alongwithCt.
Governor and Ct. Tehjeeb Haider in area of PS Gandhi Nagar where a secret in-
former met him and informed him that accused Mukesh Sharma was standing at
main road and he is absconder in the present FIR. Accordingly, they immediately
went to the spot and apprehended the accused present. The accused was arrested,
his personal search was conducted and this witness got entered the information
FIR No. 198/2001 State vs. Zafar & Anr. Page 10 / 25
vide DD No. 40A datdd 18.06.2004, PS Gandhi Nagar (Ex. PW13/B) and pre-
pared a kalandra u/s 41(1) Cr.PC (Ex. PW 13/C). Accused was produced before
the court and sent to JC.
19. PW-14, SI Tehjeeb Haider deposed that on 18.04.2006, he was posted as Ct. at
PS Gandhi Nagar. On that day, he was on patrolling duty alongwith HC Biren-
der, Ct. Governor and Ct. Subhash in area of PS Gandhi Nagar. At around 08.30
pm, HC Birender received information that one person namely Mukesh Sharma
was standing at main road and he is absconder in the present FIR. HC Birender
narrated the information. They immediately went to the spot and apprehended the
accused. This witness correctly identified accused Mukesh Sharma. IO arrested
the accused and conducted his personal search and entered the information vide
DD No. 40A dated 18.04.2006, PS Gandhi Nagar and prepared a kalandra u/s
41(1) Cr.PC.
20. PW-15, ASI Governor Singh deposed that on 18.04.2006, he was posted as Ct at
PS Gandhi Nagar. On that day, he was on patrolling duty alongwith Ct. Tehjeeb
Haider, HC Birender and Ct. Subhash in area of PS Gandhi Nagar. At around
08.30 pm, HC Birender received information that one person namely Mukesh
Sharma was standing at main road and he is absconder in the present FIR. HC
Birender narrated the information. They immediately went to the spot and appre-
hended the accused. This witness correctly identified accused Mukesh Sharma.
FIR No. 198/2001 State vs. Zafar & Anr. Page 11 / 25
IO arrested the accused and conducted his personal search and entered the infor-
mation vide DD No. 40A dated 18.04.2006, PS Gandhi Nagar and prepared a
kalandra u/s 41(1) Cr.PC.
21. Evidence on behalf of the prosecution was closed on 18.10.2018 and SA of ac-
cused persons was recorded on 25.01.2019, wherein accused Mukesh Sharma
chose to lead DE.
22. D.W. 1, Ashok Verma deposed that the incident had taken place in the year 2001
in summer time. On that day, one Jain Sahab came to the office of Mukesh Pandit
Ji at Subhash Road, Delhi regarding the lain-dain of Rs 40,000/-. Meanwhile,
Jain Sahab called police and stated to the police that the above mentioned
Mukesh Pandit Ji is a Asami and to extort money from him. Thereafter, police
came and took Mukesh Pandit Ji to PS Gandhi Nagar.
23. Subsequently, it was by the observed by the Ld. Predecessor that on 04.09.2023
that neither the formal charge u/s. 174A IPC was framed against the accused nor
any witness was examined by the prosecution. Subsequently, additional charge
u/s. 174A IPC was framed against the accused and PW -12, 13, 14 and 15 were
examined by the prosecution. PE was again closed on 16.08.2023 and matter was
fixed for final arguments vide order dated 11.09.2023.
FIR No. 198/2001 State vs. Zafar & Anr. Page 12 / 25
24. Final arguments were heard on behalf of both sides and the matter was fixed for
judgment.
APPRECIATION OF EVIDENCE
25. In criminal proceedings, the case of the prosecution must be proved beyond all
reasonable doubt. Suspicion, however strong, cannot take the place of reasonable
doubt and an accused is innocent unless proved guilty. (Raja Naykar v. State of
Chattisgarh 2024 INSC 56). With this backdrop, this Court will proceed to
examine whether the prosecution has proved it’s case against the accused beyond
all reasonable doubt.
Determination qua s. 420/34 I.P.C.
26. s. 420 I.P.C. provides the punishment for cheating and dishonestly inducing
delivery of property. It states that 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 valuable security, or anything, which is signed
or sealed, and which is capable of being converted into a valuable security, shall
be liable to be punished for a term which may extend to seven years and shall
also be liable to fine. The offence of cheating has been defined in section 415
I.P.C. as an act of fraudulent or dishonest intention intended to induce a person
and the person so deceived delivers any property to any person, or consents that
any person shall retain any property, causing damage or harm to that person.
FIR No. 198/2001 State vs. Zafar & Anr. Page 13 / 25
27. The essentials required to be proved for bringing home the charge u/s. 420 IPC,
as held in N. Raghavender v. State of A.P., (2021) 18 SCC 70, are as follows:-
It is paramount that in order to attract the provisions of Section 420IPC,
the prosecution has to not only prove that the accused has cheated
someone but also that by doing so, he has dishonestly induced the person
who is cheated to deliver property. There are, thus, three components of
this offence i.e. (i) deception of any person, (ii) fraudulently or dishonestly
inducing that person to deliver any property to any person, and (iii) mens
rea of the accused at the time of making the inducement. It goes without
saying that for the offence of cheating, fraudulent and dishonest intention
must exist from the inception when the promise or representation was made
28. Hence, the prosecution must prove that (i) the accused had fraudulently or
dishonestly deceived the complainant; (ii) complainant was induced with
dishonest intention; (iii) such inducement was for the delivery of any property or
valuable security; and (iv) as a result of such an act, complainant has suffered
some damage or injury.
Deception of complainant with dishonest intention
29. The first requirement is that the accused had fraudulently or dishonestly deceived
the complainant. The term ‘deception’ has been defined in the Merriam-Webster
dictionary as ‘the act of causing someone to accept as true or valid what is false
or invalid.’ The term fraudulently has been defined in s. 25 IPC as ‘A person is
said to do a thing fraudulently if he does that thing with intent to defraud but not
otherwise. The term dishonestly has been defined in s. 24 IPC as the doing of an
act with the intention of causing wrongful gain to one person or wrongful loss to
another person.
FIR No. 198/2001 State vs. Zafar & Anr. Page 14 / 25
30. The allegation against the accused persons is that they induced the complainant to
deliver clothes of worth Rs. 70,000/- by giving two forged bank drafts bearing
no. 842164 and 842170 payable at UCO bank, Mumbai. The fact that the accused
persons had given the demand draft no 842164 as part payment to the
complainant has been categorically deposed by the complainant who has been
examined as PW-3. He has deposed that both the accused persons came to his
shop on 28.08.2021, purchased clothes of Rs. 70,000/- and gave the aforesaid
drafts. This witness was not cross-examined on this aspect at all by either of the
accused persons. No question or suggestion to rebut this contention was put to the
complainant during his lengthy cross-examination. Hence, the fact that the
demand draft no. 842164 had been given by the accused to the complainant has
been duly proved. Further, the claim of the prosecution that the demand draft
bearing no. bearing no. 842164, exhibited as Ex. PW3/A, was fake/forged
demand draft is duly proved from the testimony of testimony of PW-5 who was
the Assistant Manager, UCO Bank, the bank issuing the return memo, exhibited
as Ex. PW3/E, wherein the reason for return of DD was stated to be ‘Fake DD’.
Despite opportunity, this witness had not been cross-examined by the accused
persons. There is no reason to disbelieve the testimony of this witness and no
cross examination makes the averment made in the testimony of this witness
liable to be accepted.
FIR No. 198/2001 State vs. Zafar & Anr. Page 15 / 25
31. As the prosecution has been able to prove the fact that the accused persons had
entered the shop and handed over a forged demand draft to the complainant
knowing it to be forged, the factum of deception has been proved by the
prosecution. A person handing over a forged demand draft for payment of goods
bought by him knowing the same to be forged would be said to
deceiving/defrauding the said person. Hence deception with intention to defraud
stands proved.
Inducement for the delivery of any property or valuable security
32. The second requirement is that the inducement practised was for the purpose of
delivery of any property or valuable property. For this, the testimony of PW-3
again assumes importance, particularly his claim that the accused persons had
come to his shop, bought clothes for an amount of Rs. 70,000/- and made part
apyment through a demand draft. [Ex. PW3/A]. As was the case earlier, he has
not been cross-examined at all on this averment by either of the accused persons.
It has been argued on behalf of the accused that no bill of sale for the alleged
purchase had been produced by the prosecution and hence the accused are
entitled to be acquitted. The aforesaid contention of the accused must be rejected.
It would be appropriate to reproduce s. 5 Sale of Goods Act, 1930 here.
5. Contract of sale how made.–(1) A contract of sale is made by an offer
to buy or sell goods for a price and the acceptance of such offer. The
contract may provide for the immediate delivery of the goods or immediate
payment of the price or both, or for the delivery or payment by instalments,
or that the delivery or payment or both shall be postponed. (2) Subject to
FIR No. 198/2001 State vs. Zafar & Anr. Page 16 / 25
the provisions of any law for the time being in force, a contract of sale may
be made in writing or by word of mouth, or partly in writing and partly by
word of mouth or may be implied from the conduct of the parties.
33. The aforesaid provision makes it amply clear that a sale can be done either by
word of mouth or in writing or both. It is not an imperative requirement of law
that every sale would required to be accompanied with a bill or invoice. Similar
would be the fate of the objection of the accused that no ledger had been
maintained or produced by the prosecution to corroborate the claim of sale.
Damage or injury to the complainant
34. This requirement is self-explanatory. It has been duly proved that the accused
persons had fraudulently deceived the complainant by handing over a forged
demand draft as part payment for supply of clothes. Handing over goods/clothes
in lieu of a forged demand draft would certainly cause financial damage to the
complainant.
Determination qua s. 34 IPC
35. s. 34 IPC provides for joint liability. It does not create a substantive offence, but a
rule of liability. In Surendra Chhauhan s. State of MP, (2000) 4 SCC 110 it was
held that s. 34 is simultaneous consensus of the minds of persons participating in
the criminal action to bring about a particular result. Such consensus can be
developed at the spot and thereby intended by all of them. In this regard, it would
be opportune to refer to the decision of Hon’ble Apex Court in Rajesh Kumar v.
FIR No. 198/2001 State vs. Zafar & Anr. Page 17 / 25
State of Himachal Pradesh, (2008) 15 SCC 705 where, while dealing with the
concept of common intention, it was held:
“13. Section 34 has been enacted on the principle of joint liability in the
doing of a criminal act. The Section is only a rule of evidence and does not
create a substantive offence. The distinctive feature of the Section is the
element of participation in action. The liability of one person for an offence
committed by another in the course of criminal act perpetrated by several
persons arises under Section 34 if such criminal act is done in furtherance
of a common intention of the persons who join in committing the crime.
Direct proof of common intention is seldom available and, therefore, such
intention can only be inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances. In order to bring
home the charge of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was plan or meeting
of mind of all the accused persons to commit the offence for which they are
charged with the aid of Section 34, be it pre-arranged or on the spur of
moment; but it must necessarily be before the commission of the crime. The
true contents of the Section are that if two or more persons intentionally do
an act jointly, the position in law is just the same as if each of them has
done it individually by himself. As observed in Ashok Kumar v. State of
Punjab (AIR 1977 SC 109), the existence of a common intention amongst
the participants in a crime is the essential element for application of this
Section. It is not necessary that the acts of the several persons charged
with commission of an offence jointly must be the same or identically
similar. The acts may be different in character, but must have been actuated
by one and the same common intention in order to attract the provision.”
36. In the present case upon applying the aforesaid ratio, it is clear from the
testimony of the complainant who has unequivocally deposed that both the
accused persons, with accused Rakesh Mittal being the friend of accused Mukesh
Sharma, had come to his shop for buying clothes. He has also deposed that after
buying clothes, a demand draft had been handed over by the accused persons to
the complainant which was found to be fake. The complainant has not been
cross-examined by the accused persons on these averments at all and hence his
FIR No. 198/2001 State vs. Zafar & Anr. Page 18 / 25
veracity remains unscathed. The circumstances under which the demand draft had
been handed over by the accused persons to the complainant coupled with the
fact that the accused persons had jointly come to the shop for buying clothes
shows that they had come to the shop of the complainant with a pre-meditated
plan to defraud the complainant by handing him a forged bank draft so as to cheat
him. As held above, there is seldom direct evidence of a pre-meditated plan and
the same has to be deduced from the proved facts of the case and proved
circumstances, which in the present case is duly made out from the aforesaid
facts. Hence the prosecution has been able to prove that the accused persons had
acted in the furtherance of a common intention to defraud the complainant.
Objection as to identity of accused Zafar
37. During course of arguments, it was argued by Ld. Counsel for
Zafar@Samir@Rakesh Mittal that the identity of this accused as the perpetrator
of the crime has not been established since nothing has come on record to show
that Zafar and Rakesh Mittal are the same. The offence occurred on 28.07.2001
and accused Zafar was arrested on 10-01-2002. Be that as it may, after accused
was arrested in this case, he was put to TIP but he refused to participate in the
TIP. Indubitably, his refusal to participate in TIP, if no plausible reason is offered,
would be sufficient to draw an adverse inference against him that had he
participated in the TIP he would have been identified by the witnesses. However,
in case justifiable and plausible explanation is offered by the accused, no such
adverse inference can be drawn. NO such explanation is forthcoming. The
FIR No. 198/2001 State vs. Zafar & Anr. Page 19 / 25
accused has been duly identified by the complainant in Court. There is no reason
to disbelieve his testimony. Hence, the objection stands rejected.
38. Hence, in light of the aforesaid observations, this Court holds that the prosecution
has been able to prove the charge u/s 420/34 IPC against the accused persons
beyond all reasonable doubt.
DETERMINATION QUA S. 467/468/34 IPC
39. The accused has been charged of forging two drafts bearing no. 842164 and
842170 purporting to be a valuable security while also intending that it should be
used for the purpose of cheating, attracting charges u/s 467/468 IPC.
40. S. 467 IPC reads as follows:
467. Forgery of valuable security, will, etc.–
Whoever forges a document which purports to be a valuable security or a
will, or an authority to adopt a son, or which purports to give authority to
any person to make or transfer any valuable security, or to receive the
principal, interest or dividends thereon, or to receive or deliver any money,
movable property, or valuable security, or any document purporting to be
an acquittance or receipt acknowledging the payment of money, or an
acquittance or receipt for the delivery of any movable property or valuable
security, shall be punished with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years, and shall
also be liable to fine.
41. s. 468 IPC reads as follows:
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
FIR No. 198/2001 State vs. Zafar & Anr. Page 20 / 25
imprisonment of either de-scription for a term which may extend to seven
years, and shall also be liable to fine.
42. The term forgery has been defined in s. 463 IPC. It reads as follows:
463. Forgery.–
Whoever makes any false documents or false electronic record or part of a
document or electronic record, with intent to cause damage or injury, to the
public or to any person, or to support any claim or title, or to cause any
person to part with property, or to enter into any express or implied
contract, or with intent to commit fraud or that fraud may be committed,
commits forgery.
43. The common thread running through the offences u/s 467/468 IPC is the element
of forgery, which as defined above, is the making of any false document/
electronic record with intent to cause injury to the public or for fraud. The
prosecution must prove that it was the accused who committed forgery of the
documents in question for the aforesaid purpose. However, no such evidence has
been led by the prosecution in this regard. Non of the witnesses examined by the
prosecution have deposed that they had seen the accused put his signature on the
forged demand draft. For reasons best known to the prosecution, the signatures of
the accused were never obtained for obtaining the report of a
handwriting/signature expert. Hence the accused is acquitted of the offence u/s
467/468 IPC.
DETERMINATION QUA 471/34 IPC
44. S. 471 IPC reads as follows:
FIR No. 198/2001 State vs. Zafar & Anr. Page 21 / 25
471. Using as genuine a forged document or electronic record.–
Whoever fraudulently or dishonestly uses as genuine any document or
electronic record which he knows or has reason to believe to be a forged
document or electronic record, shall be punished in the same manner as if
he had forged such document or electronic record.
45. For successfully proving a charge u/s 471 IPC, the first requirement is that the
accused must have the knowledge or reason to believe that the document is
forged. It would appropriate to state here that a document may be forged by
someone else and be used by someone else. This someone else can be someone
who is in possession of the said document. Section 471 IPC creates a legal fiction
by stipulating that regardless who had forged the document or electronic record,
if such a document is used by someone who has either the knowledge or reason
to believe that the document being used by him is forged, he would be liable in
the same manner as if he had forged the document. The mens rea required would,
therefore, be either ‘knowledge’ or ‘reason to believe’.The term ‘knowledge’
implies being aware that a particular fact is true whereas the term ‘reason to
believe’, as defined in s. 26 IPC, would be when a person has sufficient cause to
believe that thing.
46. In the present case, it has been alleged that accused persons had handed over a
fake demand draft to to the complainant knowing it was fake. In order to prove
the mens rea i.e. knowledge, that the accused persons had the knowledge that the
same was fake, the prosecution has examined the complainant who has deposed
FIR No. 198/2001 State vs. Zafar & Anr. Page 22 / 25
that the demand draft handed over by the complainant was fake. Apart from the
complainant, other public witnesses have also been examined by the prosecuiton
including PW-2 who has deposed that the accused persons had come to his shop
on 22.08.2001 and 24.08.2001 and handed over six fake drafts. PW-1 has also
deposed on the same line regarding the accused Mukesh Sharma coming to his
shop and handing over fake drafts. Nothing untoward has come in the cross-
examination of PW-1qua the fact that these drafts were not in the possession of
the accused persons. In the considered opinion of this Court, the fact that apart
from Ex. PW3/A i.e. the fake demand draft, the accused persons had been in
possession of other forged bank drafts shows that they had the knowledge that the
present demand draft was forged. The factum of possession of other fake demand
drafts becomes a relevant fact to show the state of mind of the accused regarding
knowledge that Ex. PW3/A was forged. Further, the factum of the Ex. PW3/A
being fake is also duly proved form the testimony of PW-5 who, being a bank
official qua which the draft had been made, has categorically deposed that the
same was fake and has not been cross-examined despite opportunity being
granted to the accused persons. Hence, the fact that the accused persons were
having knowledge that the demand draft was forged.
47. The other other requirement to be proved for a charge u/s 471 IPC is that the
accused had fraudulently and dishonestly used the forged document. The fact that
FIR No. 198/2001 State vs. Zafar & Anr. Page 23 / 25
the accused had fraudulently/dishonestly used the demand draft is already
discusssed above since a person handing over a forged demand draft for payment
of goods bought by him knowing the same to be forged would be said to
deceiving/defrauding the said person. Hence both the requirements i.e. having
knowledge that the deed was forged and the usage of it have been duly proved
beyond all reasonable doubt by the prosecution. The existence of a common
intention between the accused persons has already been proved in the discussion
above.
48. The accused are hereby held guilty of the offence u/s 471/34 IPC.
DETERMINATION QUA S. 174 A IPC
49. As regards the charge u/s 174A IPC, the accused Mukesh Sharma was declared
PO by order dated 08-02-2006 as he failed to appear on 31-05-2004. The section
174A IPC came into force from 23-06-2006. The declaration of proclaimed
offender was not an offence u/s 174A IPC at that point of time. Hence the
accused Mukesh Sharma cannot be held guilty u/s 174A by virtue of Article
20(1), Constitution of India, 1950 which expressly lays down:
(1) No person shall be convicted of any offence except for violation of the law in
force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence.
50. Hence, the accused Mukesh Sharma is acquitted of the charge u/s 174A IPC.
FIR No. 198/2001 State vs. Zafar & Anr. Page 24 / 25
DECISION
51. in light of the aforesaid discussion, the Zafar@ Rakesh Mittal @Samir and
Mukesh Sharma are hereby convicted of the offence punishable under Section
420/471/34. They are however acquitted of the offence u/s 467/468/34 IPC and
accused Mukesh Sharma is acquitted of the offence u/s 174A IPC.
52. Let the convicts be heard separately on the quantum of sentence.
Digitally
signed by
53. Copy of this judgment be given free of cost to the convicts. PRITU PRITU RAJ
Date:
RAJ 2025.03.10
09:55:54
+0200
Announced in open Court (PRITU RAJ)
On 6th of March, 2025 Judicial Magistrate-01
East, KKD Courts, Delhi.
FIR No. 198/2001 State vs. Zafar & Anr. Page 25 / 25