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2006 DIGILAW 2320 (DEL)

VIKAS JAIN v. STATE OF DELHI

2006-12-13

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THIS petition is directed against the order on charge as well as the formal charge framed on 10. 11. 2003. ( 2 ) THE petitioner (Vikas Jain) is aggrieved by the order on charge as well as the charge that was framed against him inasmuch as, according to his counsel, none of the offences, under which charges have been framed, appear to be made out even if the allegations contained in the charge-sheet as well as the statements of the victims recorded under section 161 and 164 Cr. P. C are taken at face value. To appreciate the contentions raised by the learned counsel for the petitioner, it would be necessary to set out the exact nature of the charge that the petitioner is facing. The charge framed reads as under:-"charge i Dinesh Dayal Additional Sessions Judge, Delhi charge your (1) Lalit aggarwal @ Mike @ Mikesh, (2) Syed Sadakat Ali @ Chico @ Chiku (3) Mohd. Mobin @ nurri (4) Afzal Baig (5) Atul Jain, (6) Vikas Jain (7) Vijay Goel (8) Naresh kumar, as follows:-That you all, during November 2001, entered into a criminal conspiracy at jaipur and Delhi to an illegal act to extort money from Jolie Clark and Joana hoff by wrongfully confining, abducting, intimating, assaulting and threatening them and by preparing forged documents and using the forged documents. And that you Syed Sadakat Ali @ Chico @ Chiku befriended Jolie Clark and joana Hoff on 15th or 16th November 2001 and took them to the shop of Lalit aggarwal in Jaipur where they were detained for 6 to 7 hours, they were intimated and forged documents, to wit, a receipt of QUALAS GEM of Chandni Chowk delhi showing sale of Gems worth Rs. 13. 90 Lacs was prepared when no such shop is in existence. A parcel of coloured stones was prepared and Jolie Clark and joana Hoff were made to write their name and passport numbers etc. They were then brought to Delhi. The parcel was posted to Main Post Office, London from gole Dak Khana, Delhi and they were kept in Arpit Palace Hotel without making any record of their stay. They were told that the parcel has been intercepted by the Customs department and threatened that they may be arrested by the customs department. They were then brought to Delhi. The parcel was posted to Main Post Office, London from gole Dak Khana, Delhi and they were kept in Arpit Palace Hotel without making any record of their stay. They were told that the parcel has been intercepted by the Customs department and threatened that they may be arrested by the customs department. The victims were taken to the shops of jewelers at Karol bagh where money was drawn by using their credit cards. Jolie Clark was asked to get more money from her husband while Joana Hoff was asked to get money from her father. They were assaulted during their stay at Delhi and guard was kept on them. Gesture and act to insult the modesty of Jolie Clark were made. Thus a sum of nearly 14 lacs was extorted from them before they were put on the flight to London on 20th November, 2001. You, all thereby committed the offence punishable under section 120-B read with sections 347/354/365/384/467/471 of the Indian Penal Code, within my cognizance. "the learned counsel appearing on behalf of the petitioner (Vikas Jain) submitted that a reading of the aforesaid charge itself indicates that the role of the petitioner does not appear at all till the stage the shops of jewellers at Karol bagh are mentioned. The only allegation in the aforesaid charge is that the victims were taken to the shops of Jewellers at Karol Bagh where moneys were drawn by using their credit cards. ( 3 ) THIS allegation is further elaborated in the statements of Joelie clark recorded both under Section 164 and 161 of the Code. The allegation in the Section 161 statement with regard to the petitioner is contained in the following extract:-"the man took me to a jewellery shop named 'popular Jewellery Mart' located in the Citi Bank building. In Popular Jewellery Mart, I was asked to fill one form mentioning my name, Passport No. , Driving Licence No. , permanent address and my present address of stay. At Popular Jewellery Mart, they tried to debit Rs. 2 lakhs from my Credit Card, but they same was not approved by my bank. Thereafter, I and the man who had accompanied me, returned back to Jain jewellers and informed Mike @ Mikesh about the same. At Popular Jewellery Mart, they tried to debit Rs. 2 lakhs from my Credit Card, but they same was not approved by my bank. Thereafter, I and the man who had accompanied me, returned back to Jain jewellers and informed Mike @ Mikesh about the same. Mike @ Mikesh asked me to again go back to the same shop and he instructed the man to try for a lesser amount. I again went back with the same man to Popular Jewellery Mart where I was asked to fill the same form again. At Popular Jewellery Mart, they first tried for Rs. 1 lakh and again with Rs. 50,000/- which were approved by my bank. The man behind the counter at Popular Jewellery Mart handed over the Credit card, Passport etc and large stack of bills along with money to the person who had accompanied me on the direction of Mike @ Mikesh. " ( 4 ) INSOFAR as the statement under Section 164 of the Code is concerned, the relevant passage reads as under:-"they first took Joana's Passport and Credit Card, and then at about 3 pm took me to a jewellery shop bearing name Jain Jewels where my Credit Card was taken but the machine was not in proper condition and so they took me to another shop of the name "popular Jewels". There, again my Credit Card was used to the tune of Rs. 2,00,000/- but the bank did not approve, so they again tried with rs. 1,00,000/- and then again with Rs. 50,000/- which were approved by my bank. " ( 5 ) THE learned counsel for the petitioner contended that even if the aforesaid statements are taken at face value, none of the offences mentioned in the charge can be said to be made out against the petitioner. First of all, it was submitted by him that had the credit card machine at Jain Jewellers functioned, then the victims would not have been brought to the petitioner's shop, i. e. , Popular Jewellery Mart. Therefore, prior to the stage of malfunction of the credit card machine at Jain Jewellers, no role can be ascribed, whatsoever, to the petitioner. Clearly, the petitioner was not part of any conspiracy prior to that. Therefore, prior to the stage of malfunction of the credit card machine at Jain Jewellers, no role can be ascribed, whatsoever, to the petitioner. Clearly, the petitioner was not part of any conspiracy prior to that. He further submitted that insofar as the transaction at Popular Jewellery Mart is concerned, according to him, as per the documents recovered by the investigating agency itself, there is a sale bill of popular Jewellery Mart in the name of Ms Joelie Clark of an amount of rs. 1,50,000/-, which includes a sales tax element of Rs. 1485/ -. He further submits that as part of the documents submitted by the investigating agency, there are visa card transaction slips which show purchase of some items having a total value of Rs. 1,50,000/ -. So, according to the learned counsel for the petitioner, even as per the documents filed by the investigating agency, there was a legitimate transaction which the petitioner had undertaken. And it is not as if the petitioner has produced these documents in defence. ( 6 ) MR. Tiwari, the learned counsel appearing on behalf of the CBI, submitted a brief written summary, as he usually does, and along with it he submitted all the necessary documents to show the larger conspiracy and the offences that have been made out according to him. He went through the summary as well as the statements and other documents in an attempt to show that the charges against the present petitioner have been appropriately framed. ( 7 ) AFTER having considered the arguments advanced by the counsel for the parties, I am in agreement with the submissions made by the learned counsel for the petitioner that the charges framed under Sections 347, 354, 365, 384, 467, 471 read with Section 120 IPC are clearly not made out, in view of the ingredients of these provisions. Section 347 IPC pertains to wrongful confinement to extort property, or constrain to do an illegal act. No such allegation against the petitioner is made in the charge-sheet or in the material in support thereof. The same is the position with regard to the offence under section 354 IPC which pertains to assault or criminal force to a woman with intent to outrage her modesty. Section 365 IPC pertains to kidnapping or abducting with intent secretly and wrongfully to confine a person. The same is the position with regard to the offence under section 354 IPC which pertains to assault or criminal force to a woman with intent to outrage her modesty. Section 365 IPC pertains to kidnapping or abducting with intent secretly and wrongfully to confine a person. There is no allegation of abduction or confinement at least insofar as the petitioner is concerned and, it must be remembered, that the petitioner did not come into the picture, even as per the allegations contained in the charge-sheet, till the malfunction of the credit card machine at the shop of Jain Jewellers. By that time the alleged victims were, supposedly, already within the control of the co-accused. Even the ingredients of the offence punishable under Section 384 IPC are not made out as there are no allegations of extortion on the part of the petitioner. Section 467 IPC pertains to forgery of a valuable security, will etc. There is no allegation of such forgery on the part of the petitioner. According to Mr Tiwari, the valuable security was the credit card but, Mr Tiwari forgets that the credit card was a genuine one and, therefore, there is no question of any forgery of the credit card. The same is the position with regard to the offence punishable under Section 471 IPC. This takes care of all the offences for which the petitioner has been charged and it is clear that the petitioner's case does not fall in any one of them. Since Section 120-B IPC has not been imposed substantively but only as being read with these offences, that also goes, for the time being. ( 8 ) FINALLY, Mr Tiwari, the learned counsel appearing on behalf of the cbi, submitted that there may be other provisions under which the petitioner could be charged inasmuch as the credit card was used in his shop and there is the allegation that no goods were purchased. He, therefore, requested that this court should not foreclose the entire issue and only restrict itself to the charges already framed. ( 9 ) HAVING regard to the discussion above, I am of the view that the petitioner cannot be charged for the offences mentioned in the impugned charge. The same, as regards the petitioner, stand set aside. He, therefore, requested that this court should not foreclose the entire issue and only restrict itself to the charges already framed. ( 9 ) HAVING regard to the discussion above, I am of the view that the petitioner cannot be charged for the offences mentioned in the impugned charge. The same, as regards the petitioner, stand set aside. To enable the learned counsel for the CBI to advance further arguments with regard to any other offence, that may be made out on the basis of the material on record, this matter is remanded to the trial court for a consideration on this aspect alone after hearing counsel for the parties. This revision petition stands disposed of.