Delhi District Court
State vs S.J.N. Murti on 30 April, 2014
IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE, DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI.
STATE VERSUS S.J.N. Murti
FIR No. 574/1993
U/s 420/468/471 IPC
P. S. Sriniwas Puri (Crime Branch)
Date of filing of the charge sheet : 25021994
Date of reserving order : Not reserved.
Date of pronouncement : 31032014
JUDGEMENT
(a) Computer Generated Number of the : 02403R0004001994 case
(b) The date of the commission of the : January1993 to May1993. offence
(c) The name of the complainant : Sh. Devender Kumar Srivastava S/o Ganga Sahai Srivastva, R/o 1/20A, Sarai Julena, Okhla, New Delhi.
(d) The name of the accused person, his i. S.J.N. Murti Ayyer S/o Sh. parentage and residential address Jagdishan, R/o N82, Saurab Vihar, Jaitpur, New Delhi.
(e) The offence complained of : Section 420/467/471 IPC (f) The plea of the accused : Pleaded not guilty (g) The final order : Convicted (h)The date of the order : 30042014 FIR No.574/1993 State Vs. SNJ Murti 1/24 PROSECUTION CASE:
1. In the present case, the charge sheet was filed U/s 420/467/471 IPC by the Crime Branch of Delhi Police, on the basis of complaint of one Sh. Devender Kumar Srivastava who stated in his complaint dated 11.10.1993 that he was known to accused as at that point of time, they were neighbours of each other in Sarai Jullena area. It is alleged that accused used to claim that he has worked with Smt. Indira Gandhi, the earlier Prime Minister of India and because of this he knows various senior officers. It is also alleged that accused had also given one letter of MP written to SDM in relation to some altercation between complainant and his village Pradhan. It is alleged that when complainant spoke to him regarding the recruitment of his brother namely Dharmender Kumar, Ashok Kumar and Rajesh Kumar and his nephew Manoj Kumar. On this accused assured him that he will get them recruited in Government departments but it will cost them some money. He got the forms of staff selection filled from them and after some time, he brought appointment letters dated 12.01.1993 from MEA for Ashok Kumar and Dharmender Kumar and appointment letter dated 16.01.1993 of MEA for Rajesh Kumar and appointment letter dated 16.01.1993 of Rashtpati Bhawan for Manoj. After some time they also received telegrams for duty joining on 15.01.1993 and he took Rs. 13,000/ from the complainant on 25.01.1993 against a cheque (as security). Thereafter he also brought the gate passes for them issued by Office Superintendent. Thereafter on 09.02.1993, he took Rs. 21,000/ from the complainant on the pretext that without paying money they FIR No.574/1993 State Vs. SNJ Murti 2/24 will not be given jobs. He also gave one recommendation letter from Sh. R.K. Dhawan to Sh. Dinesh, Minister of External Affairs for giving them duty on 01.03.1993. Thereafter he also brought transfer letters of Dharmender Kumar, Manoj Kumar and Rajesh Kumar from MEA, Lok Sabha which is on the Lok Sabha House letter head and purportedly has been issued on 04.01.1993 and he took Rs. 150 / from each and also alongwith salary cash voucher and he took further Rs 46,000/ against a security cheque. On suspicion, when all documents got verified by the complainant, they all found forged and fabricated. Thereafter case was registered and after investigation, the present charge sheet was filed.
2. Cognizance of the offence was taken by the Ld. Predecessor of this court vide order dated 25021994 against the accused person and copies of charge sheet supplied to accused. Charge was framed against the accused person for an offence U/s 420/467/471 IPC on 03011995 to which accused person had pleaded not guilty and claimed trial.
3. The prosecution in order to prove its case had examined 11 witnesses namely PW1 Devender Kumar Srivastav, PW2 Rajesh Kumar, PW3 Manoj Kumar, PW4 HC Harish Chander, PW5 Dharmender Kumar, PW6 SI Balwan Singh, PW& Sh. Vijay Khanduja, PW8 Ashok Kumar, PW9 Dhan Singh, PW10 Mahipal Yadav and PW11 Sh. V.K. Khanna.
4. Complainant was examined as PW1. He reiterated the contents of his complaint and proved on record various documents such as his statement recorded by the police as Ex.PW1/A, letter to which he wrote to PM as Ex.PW1/B, the seizure memo dated 11.10.1993 as Ex.PW1/C, the appointment FIR No.574/1993 State Vs. SNJ Murti 3/24 letter is given by the accused to him as Ex.A1 to Ex.A4, the telegrams received by them Ex.A5 to Ex.A8, letter of Sh. R. K. Dhawan Ex.A9, three transfer letters Ex.A10 to Ex.A11, ten vouchers as Ex.A12/1 to 10, three transfer receipts as Ex.A13/1 to 3, four bank receipts as Ex.A14/1 to 4, four identity cards. Various gate passes and letter pad of ONGC were seized vide memo Ex.PW1/D and various papers Ex.P1 to Ex.P74 which were allegedly recovered from the house of the accused in his presence were seized vide memo Ex.PW1/D. During his cross examination, he stated that at the relevant time, he was working with shop of kabadi on the remuneration of Rs. 3,000/ per month and his brothers were staying with him. He stated that he brought Rs. 46,000/ by pledging his property in his village and he borrowed Rs. 21,000/ from his employer and remaining Rs. 13,000/ was pooled by all the brothers. He stated that he did not issue any receipts to his employers for said Rs. 21,000/. He stated that first installment which was given was of Rs. 13,000/, the second installment was of Rs. 21,000/ and the third and final installment was of Rs. 46,000/. He stated that he does not remember the exact date of payment to the accused and he did not accompany the police to the house of the accused. He stated that he does not remember that the cheque issued by the accused to him were of which bank. He further stated that at the time of raid at the house, he was also called.
5. Sh. Rajesh Kumar was examined as PW2. He in his statement stated that they all had given Rs. 20,000/ each to the accused for service and accused got filled up the form from all of them and gave them appointment FIR No.574/1993 State Vs. SNJ Murti 4/24 letters. He stated that he used to go inside the Shastri Bhawan and Parliament House and leaving them outside and on his return he used to say that concern officer is on leave.
6. Sh. Manoj Kumar was examined as PW3. He also made similar statement to the statement of PW2.
7. PW4 HC Harish Chander deposed that in his presence on 11.10.1993, specimen handwriting of accused was taken by IO SI Sh. Balwan Singh, same is Ex.PW4/A1 to A30 and he had also taken into possession the specimen sealed impression of the seal seized from the house of the accused i.e Ex.PW4/A31 to Ex.PW4/A46. He was not cross examined.
8. PW5 Sh. Dharmender Kumar also made a similar statement to that of PW2 and PW3.
9. PW6 SI Balwan Singh deposed about the investigation part but his testimony could not be completed and his examination in chief was deferred. Therefore, his statement cannot be read in evidence.
10. PW8 Sh. Ashok Kumar also made a similar statement to that of PW2 and PW3.
11. PW9 SI Dhan Singh was a formal witness of investigation and he stated that it was accused who had given a letter to the complainant on the letter head of Mr. D. Pandian, MP signing it himself.
12. The statement of PW10 Mahipal Yadav was recorded on 19122012 and statement of PW V.K. Khanna was recorded on 3042013. He, in his examinationinchief deposed that he came before the court to depose on behalf of Sh. P.K. Mishra (Retired Additional Director General, BSF and FIR No.574/1993 State Vs. SNJ Murti 5/24 Former Joint Director) vide letter no. Pers/PKM/Misc/2011/75758 dated 13.10.2011, same is Ex. PW 10/A (OSR). The letter Ex. PW 10/B written to Sh. Maxwell Pareira, Deputy Commissioner of Police, Crime and Railways bears the signatures of Sh. P.K. Mishra. PW10 further stated that can identify the signatures of Sh. P.K. Mishra as he had seen the signatures of Mr. P.K. Mishra. It is deposed by PW10 that letter Ex. PW 10/A bears the signatures of Sh. P.K. Mishra at point A. During his cross examination PW10 admitted that he had never worked with Mr. P.K. Mishra. He further admitted that he does not have personal knowledge of the contents of the letters vide memo Ex. PW 10/B. PW10 also admitted that he had not seen Mr. P.K. Mishra while writing or signing any document.
13. PW 10 Shri V. K. Khanna, deposed that he had retired as Principal Scientific Officer and Incharge (document Division), Central Forensic Science Laboratory, CBI, New Delhi on 30.11.2007. During my tenure, he received documents Q1 to Q116 alongwith specimen handwriting and signatures S1 to S 20 and S31 to S46 containing specimen seal impressions vide letter No. 219 dated 09.11.1993 sent by Inspector Crime Branch, Section 5, PHQ, New Delhi. He further stated that the documents of this case were examined carefully by him with scientific aids and gave his detailed report Ex. PW 10/A (consisting of eight pages) bearing his signatures at every page at point A.
14. The statement of accused were also recorded on 04032013 & 19082013 in which he stated that he has been falsely framed. He preferred not to adduce any DE.
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15. The present case was decided by the Ld. ACMM (predecessor of this court) vide judgment dated 20.12.2011 whereby the accused J.N. Murty was acquitted of the charges framed for the offenses u/s 420/467/471 IPC. Subsequently, the state preferred an appeal against the said acquittal by way of Appeal No. 72 / 2012 before the Hon'ble Session Judge. The said appeal of the state was allowed and the matter was remanded back to this court with certain observations etc.
16. The FIR on the basis of which the charge sheet was laid was registered on the complaint of Devender Kumar Srivastav (Ex.PW1/A) made on 11.10.1993. The allegations levelled against the respondent herein primarily were that during the period January, 1993 to May, 1993, he had cheated the first informant by inducing him to deliver in different instalments amount of Rs.80,000/on the basis of false promise to secure Government jobs for his relatives, namely Dharmender, Ashok and Rajesh. It was alleged that the respondent had forged and fabricated certain documents in the nature of appointment letters, transfer orders, vouchers of salary, identity card, gate pass etc. These documents are alleged to have been used as genuine by the respondent with knowledge that the same were forged.
17. In the charge sheet, the investigating agency listed 14 witnesses which would include the first informant and other persons cheated namely PW2 Rajesh Kumar, PW3 Manoj Kumar and PW4 Ashok Kumar. The specimen handwriting of the respondent was also collected and the questioned FIR No.574/1993 State Vs. SNJ Murti 7/24 documents alongwith the specimen handwriting were sent to Central Forensic Science Laboratory (CFSL) for comparison and opinion. A report based on the said examination by Sh. V.K. Khanna, Senior Scientific Officer, Grade1 (Documents) of CFSL bearing date 17.08.1994 was also submitted on record with covering letter dated 24.08.1994 of the Director, CFSL.
18. The charge had been framed on 03.01.1995, the prosecution was called upon to adduce evidence. In the course of the said proceedings, prosecution led evidence by examining 9 witnesses. Thereafter, the statement of the accused was recorded and after hearing the parties, the judgment dated 20.12.2011 was rendered acquitting the respondent. The acquittal was primarily based on the failure of the prosecution to prove the connection between the accused and the authorship of the questioned documents.
19. The Hon'ble Session Judge while dealing with the appeal of the state had observed thus:
"9. On perusal of the record, it is noted that summons were not sent even once to the handwriting expert of CFSL. Both parties have confirmed this fact on the basis of Trial Court record. In these circumstances, it seems most unfair to the State to disbelieve it case on the reasoning that prosecution had not proved the connection of the respondent with the authorship of the documents which seemingly appear to be highly incriminating.
FIR No.574/1993 State Vs. SNJ Murti 8/24
...
11. The handwriting expert of CFSL was a material witness on whose evidence the fate of the charge framed against the respondent, particularly the charge for offences u/s. 467/471 IPC rested..."
20. The matter was remanded to this court on 05.11.2012 and the orders of the Hon'ble Session Court was complied with. The remaining P.E. were summoned through the DCP (Crime) for the next date. Consequently, PW10 Sh. Mahipal Yadav (SSA Lok Sabha Secretariat) was examined / cross examined and discharged. The other PWs namely Ibrahim and Sunil Sharma were still unserved despite the efforts of the office of the DCP (Crime). Last opportunity was thus granted for all the remaining PWs. On the subsequent date no PW was present. This court had no option other than closing the PE. The accused was further examined under S.313 Cr.P.C. in the wake of the examination of PW10. The accused did not want to lead any DE. Thus the DE was also closed.
21. The matter was thereafter fixed for the Final Arguments for 11.03.2013. However, the State moved an application under S.311 Cr.P.C. The said application was disposed of in terms that only one opportunity was granted to the state for recalling PW2 and PW3. An opportunity was also granted to the prosecution to call Mr. V.K. Khanna from the CFSL for his examination. On the subsequent date, Sh. V.K. Khanna from the CFSL was examined and discharged. However, the PW2 and PW3 were not present as the process was FIR No.574/1993 State Vs. SNJ Murti 9/24 not issued. In the interest of justice the process was issued for the witnesses PW1 & PW3 only. However, the said two witnesses could not be served with the summons as they had left the given address. The P.E. stood closed. The accused was further examined under S.313 Cr.P.C. on 19.08.2013 and the matter was fixed for Final Arguments on 19.09.2013. Thereafter, the matter was adjourned due to the accused or the prosecution.
Whether the offense under S.420 IPC is made out (YES)
22. The definition of cheating is given in S.415 IPC:
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do 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, is said to "cheat".
16.A cursory perusal of the above provision would make it clear that there are atleast three essential ingredients constituting an offence of cheating which should be made out from the materials available on record. They are as follows: (1)Deception of any person;
(2) Fraudulently or dishonestly inducing that person
(i)to deliver any property to any person or;
FIR No.574/1993 State Vs. SNJ Murti 10/24
(ii) to consent that any person shall retain any property, or and (3) Intentionally inducing that person 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.
23. I rely on a judgment of the Hon'ble Supreme Court in G.V.Rao v. L.H.V Prasad and others (2000 93) SCC 693) wherein, it has been held that S. 415 has two parts. While in the first part, the person must 'dishonestly' or' fraudulentl' induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As also observed 'Jaswantrai Manilal Akhaney v. State of Bombay (1956 AIR 575, 1956 SCR 483) 'a guilty intention is an essential ingredient of the offence of cheating'.bIn order, therefore, to secure conviction of a person for the offence of cheating, 'mens rea' on the part of that person, must be established. The intention to deceive should be in existence at the time when the inducement was offered. Thus, so far as the second part of Section 415 is concerned, 'property', at no stage, is involved. Here it is the doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act or omission to do an act as a result of which the person concerned should FIR No.574/1993 State Vs. SNJ Murti 11/24 have suffered or was likely to suffer damage or harm in body, mind reputation or property.
24. Applying the above principles to the facts of the present case, which was registered on the complaint of Devender Kumar Srivastav (Ex.PW1/A) made on 11.10.1993. The allegations levelled against the respondent herein primarily were that during the period January, 1993 to May, 1993, he had cheated the first informant by inducing him to deliver in different instalments amount of Rs.80,000/on the basis of false promise to secure Government jobs for his relatives, namely Dharmender, Ashok and Rajesh. It was alleged that the respondent had forged and fabricated certain documents in the nature of appointment letters, transfer orders, vouchers of salary, identity card, gate pass etc. These documents are alleged to have been used as genuine by the respondent with knowledge that the same were forged.
25. Sh. Rajesh Kumar was examined as PW2. He in his statement stated that they all had given Rs. 20,000/ each to the accused for service and accused got filled up the form from all of them and gave them appointment letters. He stated that he used to go inside the Shastri Bhawan and Parliament House and leaving them outside and on his return he used to say that concern officer is on leave. Sh. Manoj Kumar was examined as PW3. He also made similar statement to the statement of PW2.
26. Considering the conspectus of the evidence of the 'victims' (PW, PW4 etc.) I find the evidence 'unshaken'. The accused has not been able establish his FIR No.574/1993 State Vs. SNJ Murti 12/24 defence as to how the said victims have framed him. The accused had the intention of deceiving the victims from the beginning and deceived them by inducing them to part with their money. Accordingly, I hold the accused guilty of the offence under S.420 IPC.
Whether the accusedherein can be connected to the authorship of the forged documents (YES)
27. S.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, of which purports to give authority to any person to make or transfger 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 of 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."
28. Section 463 : Whoever makes any false document or part of a document 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.
FIR No.574/1993 State Vs. SNJ Murti 13/24
29. Section 464 : A person is said to make a false document FirstWhich dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document/or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, scaled or executed; or
30. The definition of "false document" is a part of the definition of "forgery". Both must be read together. If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows , (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority ; (2) making of such a document with an intention to commit fraud or that fraud may be committed. In the two definitions, both mens rea described in s.464 i. e., "fradulently" and the intention to commit fraud in s. 463 have the same meaning. This redundancy has perhaps become necessary as the element of fraud is not the ingredient of other in tentions mentioned in s. 463. The idea of deceit is a necessary ingredient of fraud, but it does not exhaust it; an additional element is implicit in the expression. The scope of that something more is the subject of may decisions. We shall consider that question at a later stage in the light of the decisions bearing on the subject. The second thing to be noticed is that in s. 464 two adverbs, FIR No.574/1993 State Vs. SNJ Murti 14/24 "dishonestly" and "fraudulently" are used alternatively indicating thereby that one excludes the other. That means they are not tautological and must be given different meanings.
31. Section 24 of the Penal Code defines "dishonestly" thus : "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly".
32. "Fraudulently" is defined in s. 25 thus: " A perosn is said to do a thing fraudulently if he does that thing with intent to defrand but not otherwise".
33. The word "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently". The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further) the juxtaposition of the two expressions "'dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary enough. So too, if the expresssion "fraudulently' were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss.
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34. It would be seen from this passage that "'fraud" is made up of two ingredients, deceit and injury. The learned author also realizes that the principal object of every fraudulent person in nearly every case is to derive some advantage though such advantage has a corresponding loss or risk of loss to another. It may also be noted in this connection that the word "'injury" as defined in s. 44, Penal Code, is very wide as denoting "any harm whatever, illegally caused to any person, in body, mind, reputation or property.
35. In the present case the accused prepared the documents and he handed then over to victims. Sh. Vijay Khanduja, SO (Vig.) MEA was examined as PW7. PW7 deposed regarding the appointment letters stating that they are not issued by MEA. He proved on record his department's letter in this regard as Ex.PW7/A and he stated that it bears the signature of Sh. Vivek Katju and stated that he can depose regarding the signature of Sh. Vivek Katju because he has seen him signing and writing in official course of business.
36. The expert Sh. V.K. Khanna proved the report PW10/A (consisting of 8 pages). The crux of the report appears on the last sentence in which the expert Sh. V.K. Khanna (Senior Scientific Officer) opined that the questioned and the specimen writings have been executed with an ink which could have been originated from the same source.
37. The report Ex. PW10/A was categorised into four segments :
1. The 'Writing' on the questioned and the specimen writings;
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2. The 'rubber seal impression' on the questioned and the specimen documents;
3. The 'dates' on the questioned and the specimen documents;
4. Microscopic & Ultraviolet examination of the questioned and the specimen writing;
The 'writings' on the questioned and the specimen writings:
38. As far as the writing is concerned the report Ex. PW10/A mentioned that both the questioned and the specimen English writings agree with each other in general writing characteristics such as movement (mainly forearm), slant, spacing, alignment, relative size and the proportion of the letters. The skill and the line quality of the questioned writings were found consistent with these qualities of the specimen English writings. Both the questioned and the specimen English writings also agreed in individual writing characteristics without any material divergence. The report illustrated in detail, the said similarities etc. The expert Sh. V.K. Khanna vide his report Ex. PW10/A did not find any fundamental difference between the questioned document and the specimen writing. According to him the cumulative consideration of the various points of similarity of the writings (questioned and the specimen) ruled out the accidental coincidence. The expertherein was of the opinion that such intricate similarities in the handwritings are not practically possible when 'two different persons' wrote. Therefore, the expert was of firm pinion that FIR No.574/1993 State Vs. SNJ Murti 17/24 the writer of the questioned documents and the specimen writing was the same person i.e. the accusedherein.
The 'rubber seal impression' on the questioned and the specimen documents:
39. As per the report (Ex.PW10/A) on superimposition under VSCIV, the questioned English Rubber Seal impression (marked as per the report) agree with the specimen English Rubber Seal impressions. However, in view of the lack of individual characteristics due to wear and tear, it was not possible to say definitely that the questioned rubber seal impressions were affixed from the same seal from which the specimen rubber seal impressions were affixed. Here, we see that the opinion of the expert is not a firm opinion. The 'dates' on the questioned and the specimen documents
40. As per the report (Ex.PW10/A) on superimposition the questioned English dates (marked as per the report) agree with the Rubber Seal impressions. (when compared similar dates respectively) in general size, design and arrangement of matter. However, in view of the lack of individual characteristics due to wear and tear, it was not possible to say definitely that the questioned dates impressions were affixed from the same seal from which the specimen rubber seal impressions were affixed. Here, we see that the opinion of the expert is not a firm opinion.
Microscopic & Ultraviolet examination of the questioned and the specimen writing;
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41. Microscopic examination of the questioned and the specimen writing reveal that both the writings written in 'green' ink had similar shades. The ultraviolet examination of the questioned and the specimen writing reveal that both the writings gave similar fluorescence.
42. The expert opinion can be read against the accusedherein only insofar the element of 'writing' is concerned.
43. The question for consideration is whether the accusedherein can be now convicted in view of the expert evidence. An expert really means a person who by reason of his training or experience is qualified to express an opinion whereas an ordinary witness is not competent to do so. His evidence is only opinion evidence which is based on his special skill or experience. In view of the language of Section 45 of Evidence Act it is necessary that before a person can be characterized as an expert, there must be some material on the record to show that he is one who is skilled in that particular science and is possessed of peculiar knowledge concerning the same. He must have made special study of the subject or acquired special experience therein. Thus before the testimony of a witness becomes admissible, his competency as an expert must be shown may be by showing that he was possessed of necessary qualification or that he has acquired special skill therein by experience. Apart form the question that the report of a handwriting expert may be read in evidence, what is necessary is that the expert should be subjected to crossexamination because an expert like any other witness is fallible and the value of his FIR No.574/1993 State Vs. SNJ Murti 19/24 evidence consists in the rightful inferences which he draws from what he merely surmises. The expert's evidence is only a piece of evidence and the weight to be given to it has to be judged along with other evidence as evidence of this nature is ordinarily not conclusive. Such evidence, therefore, cannot be taken as substantive piece of evidence but is there in corroborate the other evidence.
44. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by the Hon'ble Supreme Court in Ram Chandra v. State of U.P. (AIR 1957 SC 381) that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. It was again pointed out in Ishwari Prasad Mishra v. Md. Isa (AIR 1963 SC 1728) that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) where it was pointed out that expert evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.
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45. The Hon'ble Supreme Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. (AIR 1967 SC 1326) and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Langlands (1822, 5 B and Ald
330) and Matter of Alfred Foster's Will (34 Mich 21). The Supreme Court of Michigan pointed out in the last mentioned case :
Everyone knows how very unsafe it is t0 rely upon any one's opinion considering the niceties of penmanship Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil.
46. Though it is unsafe to convict an accused solely on the basis of handwriting evidence, if the surrounding evidence point towards the complicity of the accused, the conviction would be proper. The defence taken by the accused is that he cannot be connected with the crime because the documents alleged to be forged were given by the complainant to the police. I find less force in such an assertion because many blank documents, letter heads etc. were recovered from the premises of the accused.
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47. The oral evidence that reiterates the expert handwriting evidence is the consistent testimony of the persons cheated namely PW2 (Rajesh Kumar), PW3 (Manoj Kumar) and PW4 (Ashok Kumar).
48. The prosecution has been able to prove that the forged appointment letters etc. were written by none other than the accused and that the accused had the intention to commit the fraud after obtaining money from the complainant.
49. In this context it is, perhaps, equally well to recall that forgery is a serious public crime in the Indian law from the very beginning, and, in particular, since the enforcement of the Indian Penal Code, 1860, for now more than a century and a quarter. Chapter XVIII of the said Code deals with crimes of this nature. Both forgery under Section 463 and the making of a false document under Section 464 are couched in the widest terms. Equally well it is to recall the earlier definition of 'valuable security' in Section 30 of the said Code. This wide ranging definition denoting it, (which is important for our purpose) as a document, whereby any legal right is created, extended, transferred, extinguished or relinquished, is again framed so broadly that a letter of appointment creating a legal right to the post would come within its ambit. (Rita Mishra vs Director, Primary Education, ... AIR 1988 Pat 26 : 1988 (36) BLJR 1)
50. During his cross examination PW V.K. Khanna stated that his report is an opinion and is based on scientific examination and comparison. It is further stated by him that it is quite possible that other expert might have different FIR No.574/1993 State Vs. SNJ Murti 22/24 opinion on the same issue. He further stated that two honest and competent experts shall never differ on the same data or issue before them in rendering their opinion on the same. He denied the suggestion that he has not given the correct opinion. That, however, does not merit the rejection of his expert opinion.
51. The evidence of the handwriting expert and PW7 read alongwith the entire evidence of the witnesses PW1 to PW4 point out towards the complicity of the accusedherein. I therefore hold him guilty under S.467 IPC. Whetehr offence under s.471 is made out (NO)
52. Section 471 in The Indian Penal Code :: 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 1[document or electronic record]..
53. Ingredients of Section 471 IPC . Under this Section there must be
(i) Fraudulent or dishonest use of a document as genuine.
(ii) Knowledge or reasonable belief on the part of the person using the document that it is a forged one."
FIR No.574/1993 State Vs. SNJ Murti 23/24
54. In the present case the accused handed over the documents to the victims. This cannot be said to 'used' by the accused. If the victims had presented the said documents to the authorities after knowing that such documents were 'forged' a case was made out against them because they had 'used' the documents'. Hence an offence under S.471 IPC is not made out against the accusedherein.
55. In view of the aforementioned reasons and discussion, the prosecution has succeeded in establishing its case beyound the reasonable doubts, Hence, the accusedherein is convicted for the offence u/s 420 and S.467 IPC. Case be put up for argument on sentence on 05052014.
ANNOUNCED IN THE OPEN COURT ( VEENA RANI) TODAY ON 30042014 CMM/SE/SAKET COURT/ND. FIR No.574/1993 State Vs. SNJ Murti 24/24