Delhi District Court
In Guru Bipin Singh vs . Chongtham Manihar Singh & Anr. on 28 November, 2011
FIR No. 287/07 1 P.S. Alipur
IN THE COURT OF SH. MANISH GUPTA, ADDL. CHIEF
METROPOLITAN MAGISTRATE (OUTER DISTRICT), ROHINI
COURTS , DELHI
FIR No. 287/07
Unique Case ID No. 02404R0699002007
Police Station Alipur
Under Section 420/468/471 IPC
State v. Shobh Raj @ Amardeep
JUDGEMENT
(a) Serial number of the case :1164/2
(b)Date of the commission of the offence :24.12.2005
(c)Name of the complainant :Man Singh S/o late Shri,
Bhagwan singh, R/o H.No.
47, Village Pooth Kalan,
Delhi.
(d)Name of the accused & address :Shobh Raj @ Amardeep
S/o Shri Chatar Singh,
R/o 884, Village
Bakhtawar Pur, Delhi.
(e)Charge against the accused :U/s 420/468/471 IPC
(f)Plea of the accused :Pleaded not guilty
Contd.....
FIR No. 287/07 2 P.S. Alipur
(g)Final order : Accused Convicted
(h)Date of such order :23.11.2011
Date of Institution :06.12.2007
Date on which arguments heard and
Judgment reserved. :22.11.2011
Date of Judgment :23.11.2011
BRIEF STATEMENT OF THE REASONS FOR DECISION
1. Challan in this case was filed on behalf of the state on 06.12.2007 and after taking cognizance of the offence copies were supplied to the accused.
2. That on 20.12.2007 the charge was framed against the accused after hearing the Ld. APP for state and the accused. The said charge against the accused is that on 28.10.2005 in the court of Shri N.K. Gupta, Ld. ASJ, Tis Hazari Courts, Delhi the accused fraudulently produced forged documents namely forged birth certificate which he knew or had reason to believe to be the forged document intending that it shall be used for the purpose of cheating and cheated the court by dishonestly inducing it to grant bail to him on the basis of that Contd.....
FIR No. 287/07 3 P.S. Alipur forged birth certificate and thus the accused committed an offence punishable u/s 420/471/468 IPC. The accused pleaded not guilty and claimed trial.
3. It is pertinent to mention here that on 28.6.2008 the charge was amended as there was some defect in the charge which was framed on 20.12.2007. Accordingly, the amended charge was framed on 28.06.2008 by the then Ld. M.M., Delhi. The amended charge dated 28.6.2008 against the accused Shobh Raj @ Amarjeet S/o Chattar Singh is that on 24.12.2005 in the court of Shri Rakesh Siddhartha, Ld. ASJ, Delhi the accused fraudulently produced forged document namely forged birth certificate which he knew or had reason to believe to be a forged document intending that it shall be used for the purpose of cheating and accused cheated the court by dishonestly inducing it to grant bail to him on the basis of that forged birth certificate and thus the accused committed an offence punishable u/s 420/468/471 IPC. The charge was read over and explained to the accused and the accused pleaded not guilty and claimed trial.
Contd.....
FIR No. 287/07 4 P.S. Alipur
4. The prosecution has cited 6 witnesses as per list of witnesses. In this case PW1 Sh. Maan Singh, PW2 Shri Suresh Kumar, SubRegistrar, Birth & Death, Narela Zone, Delhi, PW3 Shri Kailash Kushwaha, Asstt. Teacher, Sarvodaya Vidayalaya, Zor Bagh, New Delhi, PW4 Ct. Praveen Kumar, PW5 ASI Ajeet Singh and PW6 SI Dalbir Singh were examined on behalf of state.
5. I have heard final arguments and perused the record.
6. After closing of PE, the statement of accused was recorded in question answer form on 25.3.2008. Additional statement of accused Shobh Raj was also recorded u/s 313 Cr.P.C. on 28.6.2008 in view of the amendment of charge. The accused opted not to lead evidence in defence. It is pertinent to mention here that on 28.6.2008 amended charge was framed and on the said date itself additional statement of accused u/s 313 Cr.P.C. was recorded and the counsel of accused submitted that no prejudice shall be caused to the accused as he was well aware of the charge for which he was being tried.
7. I have perused the material on record, statements of prosecution witnesses and have also carefully heard arguments addressed by Ld. Contd.....
FIR No. 287/07 5 P.S. Alipur APP for state as well as Ld. Counsel appearing on behalf of accused. In the present case accused has been charged for committing offences punishable u/s 420/471/468 IPC. In order to prove the charges u/s 420 IPC framed against the accused, prosecution was supposed to prove that the accused has 1). Deceived any person and 2). Fraudulently or dishonestly induced the person so deceived to deliver any property to any person or to consent that any person shall retain any property or 3). Intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Whereas in order to prove the charge u/s 468/471 IPC prosecution was required to prove that 1). Accused had committed forgery in respect of a document (birth certificate) in present case. 2). The intention of the forger should be that the forged document is to be used for purpose of cheating and 3). The forgery should have been committed with particular intent. In respect of Section 471 IPC, prosecution was supposed to prove in addition to the above 1). That accused fraudulently or dishonestly used the document (birth certificate) as genuine and 2). That accused knew or had reasons to believe that the document (birth certificate) was forged one.
Contd.....
FIR No. 287/07 6 P.S. Alipur
8. Ld. Counsel for the accused has rebutted the case of the prosecution on the ground that prosecution has failed to prove that the accused was granted anticipatory bail vide order dated 24.12.2005 passed by Sh. Rakesh Siddharth, the then Ld. ASJ, Delhi on the sole ground that the accused was minor. Therefore, as per Ld. Counsel for the accused, no offence u/s 420 IPC can be stated to have been committed by the accused.
9. Ld. Counsel for the accused has further argued that prosecution has failed to prove that the accused had prepared the forged birth certificate in question. Ld. Counsel has drawn my attention towards the testimony of PW6 SI Dalbir Singh, the IO of the case who has clearly stated that he tried to trace out the person who had got prepared forged birth certificate for the accused but he could not succeed in tracing any such person. It has further been argued on behalf of the accused that prosecution has produced only a photocopy of the birth certificate which in itself is not sufficient to charge the accused for the offence punishable u/s 468/471 IPC. In support of his contentions to this effect, Ld. Counsel has referred to law laid down in Guru Bipin Singh Vs. Chongtham Manihar Singh & Anr.
Contd.....
FIR No. 287/07 7 P.S. Alipur (1996) 11 SCC 622. Ld. Counsel has further placed reliance on judgement cited as Jibrial Diwan Vs. State of Maharashtra (1997) 6 SCC 499 wherein it has been held that coaccused who allegedly forged the letters in question was acquitted and the allegations against the appellant was that he delivered those letters to the recipients. It was held, in the said case, that the act of the appellant cannot be said to have been done "dishonestly" or "fraudulently", hence, offence u/s 465/471 IPC not made out. It was further held that in absence of any harm to any person in body, mind or reputation, charge u/s 417 IPC is also misplaced. In support of his contentions, Ld. Counsel for accused has also relied upon case cited as 111 (2004) DLT Page No.
573. Ld. Counsel has further relied upon law laid down in Shashi Lata Khanna Vs. State of Delhi & Ors. cited as 121 (2005) DLT 522 wherein Hon'ble Delhi High Court has been pleased to hold that copy or photostat copy not sufficient in order to establish offence of forgery.
10.While rebutting the contentions put forth by Ld. Counsel for the accused, Ld. APP for state has submitted that the order dated 07.09.2007 passed by Sh. V.P. Vaish, the then Ld. ASJ, Delhi while Contd.....
FIR No. 287/07 8 P.S. Alipur cancelling the bail of the accused is self explanatory to show that the accused had on the basis of forged birth certificate claimed himself to be a juvenile and thereby took the liberty of bail. Ld. APP also argued that the order dated 07.09.2007 is final and binding and it was not challenged. I have perused the certified copy of the said order placed on record wherein Ld. ASJ has categorically observed that "As per the perusal of the order dated 24.12.2005 it is clear that the accused Shobh Raj was admitted to anticipatory bail on the ground that he was minor and his date of birth is 09.02.1988. The accused Shobh Raj was not admitted to bail on merits". It is further observed by Ld. ASJ in Page No. 5 of the said order that "The accused Amardeep Singh @ Shobh Raj was not admitted to bail on merits. The same goes to show that the accused Amardeep obtained the order of anticipatory bail by misrepresenting the fact that he was minor and had produced the copy of the birth certificate which has not been verified by the IO and has been found to be not genuine". It is pertinent to mention here that vide order dated 07.09.2007 Ld. ASJ has while cancelling the bail of the accused passed directions to accused to surrender forthwith and directions were simultaneously passed to the SHO PS Alipur for taking appropriate action against the accused in accordance with law with regard to the copy of birth Contd.....
FIR No. 287/07 9 P.S. Alipur certificate filed by the accused alongwith the bail application. It is further important to note here that during the hearing of his anticipatory bail application, juvenility of accused was pleaded specifically, as is evident from the order dated 24.12.2005, this itself satisfies the element of deception and intentional inducement on the part of the accused, consequent grant of bail is of secondary importance.
11.Ld. APP for state has further submitted that the testimony of PW2 & PW3 clearly proved that the date of birth of the accused was 09.02.1986 and not 09.02.1988. This fact substantiates the allegation of forgery in the said birth certificate. PW6 SI Dalbir Singh has stated that accused Shobh Raj had produced the copy of forged birth certificate, which is MarkX, in Sessions Court for getting anticipatory bail. It is further relevant to mention here that PW1 Sh. Maan Singh has stated that his youngest daughter Poonam was married to Arun Kumar S/o Sh. Chatar Singh, R/o Village Bakhtawar Pur, Delhi on 26.11.2001 and on 16.04.2005 the inlaws of Poonam gave her some poisonous substance due to which his daughter died at BJRM Hospital, Delhi and a case was registered against the inlaws of Poonam at PS Alipur and in said case accused Shobh Raj was also Contd.....
FIR No. 287/07 10 P.S. Alipur one of the accused who obtained anticipatory bail from Ld. Sessions Court by producing a forged birth certificate in which he was shown as a minor. It is relevant to note that the date of alleged production of the forged birth certificate by the accused before the Court is 24.12.2005. He further stated that he made an application before the Court mentioning therein that the birth certificate produced by accused Shobh Raj was forged and the court directed the police to verify the same and on verification it was found that the birth certificate was forged and fake and thereafter the anticipatory bail granted to accused Shobh Raj was cancelled by the Court of Sh. V.P. Vaish, Ld. ASJ, Delhi.
PW1 Sh. Maan Singh is the complainant in this case.
12. The statement of accused was recorded on 25.03.2008 in question answer form and additional statement of accused u/s 313 Cr.P.C was also recorded on 28.06.2008. Accused denied that on 24.12.2005 in the Court of Sh. Rakesh Siddharth, Ld. ASJ, Delhi, he (i.e the accused) fraudulently produced a forged document i.e birth certificate which he knew or had reasons to believe to be a forged document and used the same by dishonestly inducing the Court to grant him bail on the basis of the said document. Accused admitted that he was Contd.....
FIR No. 287/07 11 P.S. Alipur arrested in this case on 08.10.2007, however, he stated that he was arrested from his house and not from Subhash Chowk, Village Bakhtawar Pur. Accused denied that he made a disclosure statement Ex. PW4/C. Accused stated that the documents Ex. PW3/B and Ex. PW3/D are matter of record. Ex. PW3/B & Ex. PW3/D are the certificates issued by Sarvodaya Vidyalaya, Jor Bagh, New Delhi3 and both dated 17.08.2007. In the said certificate it is mentioned that the date of birth of Amardeep S/o Sh. Chatar Singh and Ram Rati is 09.02.1986 (Ninth February Nineteen Hundred Eighty Six) as per the school record. It is relevant to note that present chargesheet is against accused Shobh Raj @ Amardeep. Accused stated that he do not know that the photocopy of the forged birth certificate produced by him before Ld. Sessions Court is MarkX. He further stated that prosecution witnesses are false witnesses and it is a false case against him. He further stated that the copy produced by him before the Court at the time of grant of bail was the true copy and not a forged one. Accused opted not to lead any defence evidence and stated that he has been falsely implicated in this case at the instance of the complainant.
Contd.....
FIR No. 287/07 12 P.S. Alipur
13.Ld. APP for state has further argued that on the basis of forged birth certificate and misrepresentation on behalf of accused about his date of birth, accused has succeeded in getting anticipatory bail in a case u/s 304B/498A/34 of IPC. I find force in the arguments of Ld. APP for state that the misrepresentation exercised on behalf of the accused has resulted in influencing the judicial mind of Hon'ble Court while considering the bail plea of the accused and consequently he was directed to avail the liberty of bail. Accordingly, the act of the accused squarely falls within the ambit of Part II of Section 415 IPC punishable u/s 417 of IPC.
14. Ld. APP for state has further relied upon judgement passed in case titled as Budhu Ram Vs. State of Rajasthan passed by Hon'ble Supreme Court of India on 24.07.1962 wherein it has been held that use of copy of forged documents proved to be forged is covered u/s 471 IPC. In my considered view the contentions of Ld. APP for state to the effect that the prosecution has duly proved that the birth certificate filed by the accused at the time of his seeking bail was forged are having force. Nonproduction of the original document cannot be considered as a ground for absolving the accused from the penal provisions of Section 471 IPC. During the arguments Ld. APP Contd.....
FIR No. 287/07 13 P.S. Alipur for state has further rebutted the contentions raised by Ld. Counsel for the accused as regard to the law held in Shashi Lata Khanna's case (Supra) by drawing my attention towards the judgement titled as Nakul Kohli Vs. State reported in Manu/DE/1609/2010 and passed on 09.07.2010 wherein Hon'ble Delhi High Court has been pleased to differentiate the law laid down in Shashi Lata Khanna's case (Supra) by observing that excluding photocopying/printing from the ambit of a "false document" would be giving too narrow a meaning to the word "makes" as used in Section 464 IPC.
15. Ld. APP for state has further relied upon law laid down in case titled as Bank of India Vs. Yeturi Maredi Shanker Rao & Another cited as AIR 1987 SC 821 and submitted that on the basis of the law laid down in the said case it can be safely said that in a case where there is no evidence to establish as to who forged the document, the circumstances which indicate that the document was used exclusively for the benefit of the accused, infer that it is the accused who got the documents forged and, therefore, can be convicted for the offence of abetment of forgery. I have perused the copy of the cited judgement, in the said case the allegations against the accused were that he was Contd.....
FIR No. 287/07 14 P.S. Alipur having in his possession forged withdrawal form which he presented to the bank and pocketed the money. It was not established then as to who committed the forgery on the withdrawal form but Hon'ble Supreme Court has held that the circumstances spoke clearly about misappropriation of money by the accused. It was further observed that circumstancial evidence made case u/s 467/109 & 471 IPC beyond reasonable doubt.
16. In the present case the photocopy of the birth certificate filed on behalf of the accused was a forged document which was exclusively used for the benefit of the accused, accordingly, in my considered opinion accused cannot get himself absolved from the charges of abetment of forgery by merely pleading failure of prosecution to prove as to who forged the said certificate. Accused cannot further be permitted to take the plea that the original birth certificate was not produced because it was the accused who was supposed to explain about the existence and production of the said original certificate. Accordingly, accused is guilty of using, as genuine, copy of birth certificate (a document falling under the category of documents mentioned in Section 466 IPC) which was a forged document within his knowledge.
Contd.....
FIR No. 287/07 15 P.S. Alipur
17.In the light of aforesaid discussion and the referred laws I am of the considered opinion that accused Shobh Raj @ Amardeep is guilty of offences punishable u/s 417, 468 r/w Section 109 & Section 471 r/w Section 466 IPC. I accordingly, convict him for the said offences. Copy of the judgement be provided to the convict free of cost. PASSED & ANNOUNCED IN THE OPEN COURT TODAY i.e. 23.11.2011.
(MANISH GUPTA) ADDL. CHIEF METROPOLITAN MAGISTRATE (OUTER DISTRICT) ROHINI COURTS, DELHI Contd.....
FIR No. 287/07 16 P.S. Alipur IN THE COURT OF SH. MANISH GUPTA, ADDL. CHIEF METROPOLITAN MAGISTRATE (OUTER DISTRICT), ROHINI COURTS , DELHI FIR No. 287/2007 Unique Case ID No. 02404R0699002007 Police Station Alipur Under Section 420/468/471 of the Indian Penal Code State v. Shobh Raj @ Amardeep ORDER ON SENTENCE 28.11.2011 Present: Ld. APP for state.
Convict Shobh Raj @ Amardeep in person with Ms. Nisha Satyarthi, Advocate.
Arguments heard on the point of sentence. Record perused. The conviction in this case is for the offences punishable u/s 417, 468 IPC read with section 109 IPC and section 471 read with section 466 IPC.
The counsel for the convict has submitted that the convict is first time offender and is of young age and is having old parents. It is further submitted that he is unmarried and lenient view be taken. It is further submitted that the convict remained in custody in this case for a period of about five months earlier and is aged about 26 years. The counsel for the convict has also submitted that the convict has already Contd.....
FIR No. 287/07 17 P.S. Alipur appeared in 10th class examination from open school. The convict
submits that he is 8th class fail and he appeared in 8th class examination in the year 2001.
On the other hand Ld. APP for state has submitted that in the given facts and circumstances of the case the convict deserves severe punishment as provided under the law. It is further submitted by Ld. APP for the state that the convict produced forged document before court for seeking anticipatory bail in a case in which the convict was one of the accused and the said case was u/s 304B IPC.
In view of above detailed facts and circumstances, the convict Shobh Raj @ Amardeep is sentenced to undergo rigorous imprisonment for the period of one year for the offence punishable u/s 417 IPC and is further sentenced to undergo rigorous imprisonment for a period of two years and six months for the offence punishable u/s 468 IPC read with section 109 IPC and is also sentenced to deposit a fine of Rs. 5000/ failing which he has to undergo further rigorous imprisonment for a period of six months and the convict is further sentenced to undergo rigorous imprisonment for a period of two years and six months for the offence punishable u/s 471 IPC read with section 466 IPC and is also sentenced to deposit a fine of Rs. 3000/ failing which the convict shall undergo further rigorous imprisonment for a Contd.....
FIR No. 287/07 18 P.S. Alipur period of three months. All the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. shall be given to the convict.
Total fine of Rs. 8000/ deposited by the convict. At this stage an application u/s 389(3) Cr.P.C. filed on behalf of convict.
Heard. Perused.
The convict submits that he wants to file the Appeal and till filing of Appeal he may be admitted to bail and the sentence be suspended.
In the interest of justice convict Shobh Raj @ Amardeep is admitted to bail on furnishing the personal bond in the sum of Rs. 15,000/ with one surety of the like amount till 24.12.2011 (last working day of December, 2011).
Bail bond furnished and accepted till 24.12.2011. Till then the sentence of imprisonment shall be deemed to be suspended. Copy of order on sentence be provided to the convict free of cost. Copy of judgement dated 23.11.2011 has already been supplied to the convict.
File be consigned to record room after completing the necessary formalities.
Passed and announced in the open court today i.e. 28.11.2011 Contd.....
FIR No. 287/07 19 P.S. Alipur
(MANISH GUPTA)
ADDL. CHIEF METROPOLITAN
MAGISTRATE (OUTER DISTRICT)
ROHINI COURTS, DELHI
Contd.....