Sulekh Chand Jain vs State (Delhi Administration) on 5 December, 1991

Delhi High Court
Sulekh Chand Jain vs State (Delhi Administration) on 5 December, 1991
Equivalent citations: 43 (1991) DLT 136
Author: M Sharief-Ud-Din
Bench: M Sharief-Ud-Din


Malik Sharief-ud-Din, J.

(1) Even thought this case is no my board for a long time , the counsel for the parties have not put in any appearance. I, therefore proceed to decide this revision petition on merits.

(2) The petitioner along with Prem Shanker Shukla and Urmila Shukla was prosecuted under sections 419/420 Indian Penal Code with the aid of section 120-B IPC. Urmila Shukla was acquitted whereas the appellant and Prem Shanker Shukla were convicted and sentenced to rigorous imprisonment for three years on each count. The learned Additional Sessions Judge upheld the conviction and modified the sentence and reduced it to one year’s rigorous imprisonment. Both the sentences were made concurrent,

(3) NOW. briefly staling the facts as disclosed by Public Witness . 9 the Manager of Lepakshi Handicraft Emporium, New Delhi, which was being run by the Government of Andhra Pradesh, are that no 22nd/23rd April 1970 he received a telephone message from a person who named himself as P.S. Shukla. M.P., asking him whether tapestry cloth and silk material was available with the Emporium to which he replied in the affirmative. According to him, around 25th of the same month another telephone message was received sometime in the evening that a person will be coming for the purchase of material and he would require about 3-4 days’ time for making the payment of the bill. According to him, it was the practice of the Andhra Pradesh Government to sell goods on short term credit to VIPs. Further, according to him, Mr. Shukla Along with his Assistant one Mr. Gautam visited his Emporium, selected the material and Mr. Shukla authorised Mr. Gautam who was accompanying Mr. Shukla to take delivery of the material. He identified both Mr. Prem Shanker Shukla and the present petitioner as the persons who had visited the Emporium, impersonated and cheated them of their goods pursuant to a conspiracy. He further says that on 27th of April 1970 another telephone call was received around 10 O’clock asking him to expedite the dispatch of the material to Mavalankar Auditorium. According to him, the material was supplied to the petitioner who impersonated himself as Mr. Gautam on the entrance of the Emporium and the petitioner signed the packing slip. The amount of the bill was not received by the first week of May. He sent a letter on the address supplied for immediate payment but it was not received. He sent his typist to the Mavalankar Auditorium where he was told that there is no person nam.ed as Mr. Shukla connected with the Auditorium. He was thereafter informed by Kaveri Emporium that some Mr. Shukla. M.P” has also cheated them and the Emporium had made a report to the police.

(4) Now, the material witness examined by the prosecution in support of its case, in my view, is Public Witness . 3 S.S.Srihari Rao, Assistant Manager in the Andhra Pradesh Emporium, New Delhi. According to him, he was employed as a typist on the date of the incident and that it was Prem Shanker Shukla and the petitioner who impersonated himself as one Mr. Gautam who came to the Emporium and selected the material worth Rs. 2337.31 P and it was the petitioner who signed the bill. He proved the copy of the invoice Ex. Public Witness 3/A, copy of the slip Ex. Public Witness 3/B and packing slip Ex. Public Witness 3/C and stated that the originals of these documents are signed by the petitioner as Gautam. According to him, both the petitioner and his accomplice promised to make the payment within 3 days but never made the payment.

(5) The next witness is Public Witness . 9 the Manager and he has supported what he had mentioned in the Fir and has also identified the petitioner and his accomplice Mr. Prem Shanker Shukla in the dock.

(6) In my view, this revision petition is to be allowed on the ground that it is not the case of the prosecution that the petitioner and his accomplice were known to the witnesses. In fact, the introduction of Prem Shanker Shukla was on the telephone and he visited the Emporium once for the selection of the material. The delivery of the material was taken, according to the prosecution, by the petitioner at the entrance gate of the Emporium where Public Witness Rao made the delivery and took the signature of the petitioner on different documents including the delivery slip.

(7) According to the well settled law, it was necessary for the prosecution to carry out test identification parade of the petitioner before he could be sent up for trial. A person who is net known to the witnesses has necessarily to be put to the test identification parade so as to make sure that no innocent person gets involved in a criminal case. Dock identification of such a person for the first time by such witnesses is no identification in the eyes of law. This argument was also raised before the learned Additional Session Judge,but he seems to prove glossed over the matter by observing that the witnesses had seen the petitioner and his accomplice 2-4 times. This fact is not borne out by the record. In fAct the petitioner accompanied Shukla only once for selection of the material when the petitioner was introduced as assistant to Mr. Shukla. On the next day, the petitioner is stated to have gone with an authority letter and he only received the material at I he entrance gate. It cannot, therefore, be said that the petitioner was known to these witnesses and that he could be identified by them so easily after a long time. This belief of mine is strengthened by the fact that no attempt was made to take a specimen signature of the petitioner and to compare it with his alleged signatures on different documents which he is alleged to have signed. Why this was not done is any body’s guess. I am therefore, of the view that there is no legal evidence to connect the petitioner with the commission of this crime and the least that can be said is that his involvement in the commission of this crime on the basis of the aforesaid evidence is absolutely doubtful. The fact that some cloth of similar type was recovered pursuant to the disclosure statement of the petitioner is of no consequence as it is not the case of the prosecution that the complainant had monopoly of this cloth. The result is that the petition is to be allowed and I accordingly allow it and acquit the petitioner.

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