Delhi District Court
In Re: State vs Sanjeev Kumar Etc. on 19 January, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE : SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS SANJEEV KUMAR ETC.
F.I.R. No: 375/93
U/s 420/511/34 IPC
P.S. Defence Colony
Date of Institution of Case : 13.05.1994
Judgment Reserved for : 19.01.2012
Date of Judgment : 19.01.2012
JUDGMENT:
(a) The serial no. of the case : 1133/2/94
(b) The date of commission of offence : 21.08.1993
(c) The name of complainant :Sh. T. Veerapan, Senior
Manager, Indian Overseas Bank,
Defence Colony, Moolchand
shopping cum office complex,
Defence Colony, Ring Road, New
Delhi.
(d) The name, parentage, of accused : 1) Sanjeev Kumar S/o
Sh. Kundan Lal, r/o RZ
84, Indira Park, Uttam
FIR No. 375/93 State vs. Sanjeev etc. 1/32
Nagar, New Delhi.
2) Devender Kumar S/o
Sh. Bhagwan Swaroop,
r/o A/113, Raju Park
Devli, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 420/511/34 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Both accused convicted u/s
420/511/34 IPC
(h) The date of such order : 19.01.2012
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 21.08.1993 at about 11.00 am at Indian Overseas Bank, Defence Colony, New Delhi within the jurisdiction of police station Defence Colony, accused Sanjeev Kumar and Devender Kumar in furtherance of their common intention fraudulently and dishonestly presented a cheque bearing no. 470561 dated 13.08.1993 for a sum of Rs. 26229/ issued by M/s Simplicity Engineering Ltd. drawn in favour of M/s Insulation House, to Indian Overseas Bank for encashment and thus thereby attempted to induce the Indian Overseas Bank to deliver the cash i.e. amount of the cheque and thus thereby both the accused persons committed offence punishable u/s 420/511/34 IPC.
FIR No. 375/93 State vs. Sanjeev etc. 2/32
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused persons were supplied the documents. Thereafter vide order dated 31.01.1996, charge u/s 420/511/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused persons, prosecution so far examined nine witnesses. After the PE was closed, statements of accused persons were recorded u/s 313 Cr.P.C. wherein they claimed themselves to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under:
4. PW 1 Sh. T. Virappan deposed that on 21.08.1993 while he was working as Sr. Manager in Defence Colony Branch, the accused persons came to the bank and presented a cheque of Rs. 26,269/ for encashment issued by Simplicity Engineers Pvt. Ltd. He deposed that clerk Mr. Sudesh Kumar issued a token no. 98 and got suspicious about the presenter and he informed the matter to Mr. H.B.S Rana, another clerk of the branch. He deposed that he inquired about the presenting of the cheque but they tried to run away however, both of them were overpowered by the bank staff and handed over to the police. He deposed that the police was called by Mr. Rana. He deposed that he was also FIR No. 375/93 State vs. Sanjeev etc. 3/32 present in the bank when all these things were happened. He deposed that when police came, he gave a written complaint to the police i.e. Ex.PW1/A and also handed over the cheque of Rs. 26,269/ i.e. Ex.PW1/B. He deposed that another cheque of Rs. 50,500/ was presented by one Satish Kumar on 18.8.1993. He deposed that when the cheque was presented, one employee of company Mr. Sugat Kaul was present in the back incidentally. He deposed that he used to come daily. He deposed that he suggested to pass the cheque presented by Satish Kumar and cheque was passed. He deposed that at about 4.00 PM after going to office, Mr. Sugat Kaul telephoned him and told that, that cheque presented by Satish Kumar was not made a bearer cheque. He deposed that he contacted the MD of the Company Mr. TR Ramesh and told him the incident, at that time he (MD of company) informed him that they had already issued one more cheque of Rs. 26,229/ which was also not a bearer of cheque and stated that it was sent by registered post. He also complained them that other cheque may also be presented to the bank. Thus the said cheque was presented on 21.8.1993 and he informed the Managing Director accordingly. Photocopy of cheque of Rs. 50,500/ is mark A. He further deposed that since he had been transferred from the concerned branch, Defence Colony in the year 1994 he cannot produce any document pertaining to any police case. He deposed that two of the staff members of the bank in question had brought the accused persons to him for necessary legal action and accordingly he made the complaint FIR No. 375/93 State vs. Sanjeev etc. 4/32 i.e. Ex.PW1/A and handed over the two cheques in question i.e. Mark A & B to the police. He deposed that the police arrested the accused persons and took them away.
5. During his cross examination he stated that name of one of the staff was Rana but he cannot tell the name of other staff. He stated that he does not remember the date when he made the complaint to the police at his bank. He stated that the cheque i.e Mark A was a photocopy. He stated that he handed over the photocopy of one cheque to the police. He stated that he does not remember that how many papers he had signed. He denied the suggestion that accused persons were not produced before him by the said staff members nor he handed over any documents or that he was deposing falsely.
6. PW2 Har Charan Singh deposed that on 21.8.1993 he was posted as PRO in Indian Overseas Bank, Defence Colony Branch. He deposed that at about 11.30 AM Counter Clerk Sudesh Kumar came to him and told that some suspicious person had come to present a cheque bearing No. 470561. He deposed that he told him that he had issued a token also. The said suspected person was caught, who disclosed his name as Devender Kumar. On inquiry Devender told him that this cheque was given to him by one Sanjeev Kumar. He deposed that immediately he shut the counter door and Sanjeev Kumar who was FIR No. 375/93 State vs. Sanjeev etc. 5/32 also present in the Bank was nabbed by them. He deposed that he immediately called the police and handed over both the persons to the police. He deposed that FIR was got lodged by Senior Manager. He deposed that police had taken the token into possession vide Ex. PW2/A.
7. During his crossexamination he admitted that he was sitting on a separate counter far from the counter of Suresh Kumar. He stated that he does not remember whether his statement was recorded by the police. He stated that he does not remember whether police had obtained his signature on some paper or not. He stated that the police official had not recorded the statement of any witness nor any proceedings were conducted in his presence. He stated that he does not recognize or identify Devender Kumar and Sanjeev Kumar as it is a public place where so many persons visited daily in the Bank. He admitted that Devender Kumar was not apprehended in his presence. He stated that Sudesh Kumar might have issued token to the person, but he does not know about the presenting of cheque and issuance of token. He admitted that neither the token no. 98 of the bank was received by the police in his presence nor he know about the procedure of the same. He stated that police official had visited the premises of the bank but he does not know what proceeding were conducted by them. He stated that it is not in his knowledge whether police had inquired from any employee of the bank or obtained their signatures. He stated that no FIR No. 375/93 State vs. Sanjeev etc. 6/32 documentary work was done in the bank as per his knowledge. He stated that he never visited again in the Police Station nor he had been called. He stated that whenever the police officials had visited the bank, they had not met him. He voluntarily stated that he does not know whether they had visited the bank or not. He stated that it is not mandatory on their part to meet him.
8. PW3 W/SI Renuka deposed that on 21.8.1993 she was posted at PS Defence Colony and on that day on receipt of rukka brought by Const. Paras Ram, she lodged FIR No. 375/93 under Sections 468/471/420 IPC vide Ex. PW3/A.
9. PW4 Sudesh Kumar deposed that in the year 1993, he was posted at Indian Overseas Bank, Defence Colony Branch. He deposed that he does not remember the exact date but in the year 1993 one day he was working on current account counter. He deposed that accused Devender (correctly identified) produced a cheque i.e. Mark A before him and he handed over him a token but on doubt the accused was apprehended by the bank official and police was called. He deposed that the accused was handed over to the police. He deposed that he can identify the token given by him to the accused.
This witness correctly identified the token i.e. Ex. P1.
FIR No. 375/93 State vs. Sanjeev etc. 7/32
10. During his crossexamination, he stated that police officials never met him nor his statement was recorded by them. He admitted that bank is a public place where several persons visited for money transactions, he cannot identify each and every person. He stated that he had not mentioned the name of the person who presented the cheque for encashment in his examinationinchief. He stated that he had obtained the signature of the person who presented the cheque at the counter. He stated that he had issued the token only. He stated that police had not recorded the statement of any bank official in his presence. He stated that he was deposing falsely.
11. PW5 HC Tilakraj deposed that on 21.8.1993 he was posted as MHC(M) at PS Defence Colony and on that day the case property of the present case was deposited in the Malkhana by SI Sunil Kumar. He deposed that he made entry to this effect in register No. 19 vide entry No. 1219 i.e. Ex. PW5/A.
12. PW6 HC Parsu Ram deposed that on 21.8.1993 he was posted at PS Defence Colony. On that day he along with SI Sunil Kumar were on patrolling duty in the area of PS Defence Colony. When they reached DDA Complex, Manager of Indian Overseas Bank called SI Sunil Kumar and produced both accused persons (correctly identified) along with a complaint on which SI Sunil Kumar prepared rukka and handed over to him for registration of the case. He FIR No. 375/93 State vs. Sanjeev etc. 8/32 deposed that after getting the case registered he came back at the spot and handed over the copy of FIR and original Tehrir (rukka) to the IO. He deposed that SI Sunil Kumar seized token no. 98 and photocopy of the cheque. He deposed that both accused persons were arrested and their personal search were conducted vide Ex. PW6/A and PW6/B and thereafter they came back at the PS.
13. PW7 SI Sunil Kumar deposed that on 21.8.1993 he was posted at PS Defence Colony and on that day while he was on patrolling duty along with Const. Parsu Ram at DDA Complex, Defence Colony, they reached at Indian Overseas Bank. He deposed that they met T. Virappan, Sr. Manager of the bank who gave a written complaint Ex. PW1/A along with one cheque Ex. PW1/B and token to him. He deposed that he prepared rukka Ex. PW7/A on the complaint of Manager T. Virappan and same was sent to PS through Ct. Parsu Ram for registration of the case. Thereafter, Ct. Parsu Ram came back to the spot and handed over copy of FIR and original rukka to him. He deposed that T. Virappan, Sr. Manager also produced two persons namely Devender and Sanjeev (correctly identified) to him and he alleged that accused persons were trying to withdraw the cash of the cheque. He deposed that he recorded the statement of counter Clerk Sudesh Kumar and bank official H.B.S. Singh. He deposed that he seized the cheque and token vide Ex. PW7/B and Ex. PW2/A, respectively. He FIR No. 375/93 State vs. Sanjeev etc. 9/32 deposed that he seized one photocopy of cheque i.e. Mark A of the amount of Rs. 50,500/ and one original cheque Ex. PW1/B. He deposed that he interrogated both the accused persons and recorded their disclosure statements vide Ex. PW7/C and PW7/D. He deposed that he arrested both of them and conducted their personal search vide Ex. PW6/A and PW6/B. He deposed that he obtained the specimen signature of both the accused. He deposed that he also obtained the specimen signature of one Rohtash vide filing sheet Ex. PW7/E and specimen signature of Sanjeev vide filing sheet PW7/F. He deposed that he also obtained the specimen signature of employer of Simplicity Engineers Private Limited vide sheet Ex. PW7/G and H. He deposed that he also obtained specimen of rubber stamp of Simplicity Engineers Private Limited vide sheet Ex. PW7/I. He deposed that he sent the same to FSL for Expert opinion. He deposed that he also recorded the statement of PWs. He deposed that thereafter he was transferred and he had handed over case file to MHCR PS Defence Colony.
This witness also correctly identified token Ex. P1.
14. During his crossexamination he stated that on the day of occurrence at about 1.00 PM he reached at Indian Overseas Bank, Defence Colony, DDA Complex. They reached at Bank in routine checking. He stated that Const. Parsu Ram was with him. He stated that they reached at Bank on foot. He stated FIR No. 375/93 State vs. Sanjeev etc. 10/32 that one H.B.S. Rana Bank official informed him that they had caught hold two persons. He stated that thereafter he took him to Sr. Manager namely T. Virappan, who gave him a written complaint. He stated that accused persons were standing in the Chamber of the Sr. Manager, but they were not physically caught hold by anybody. He stated that he got lodged the FIR through Const. Parsu Ram at PS Defence Colony. He stated that he does not remember the exact time when Const. Parsu Ram had left the spot for the registration of FIR. He stated that he had not put any specific identification mark on the Token of the bill, nor it was sealed by him in any pulanda. He denied the suggestion that Token Ex. P1 was not produced by Sr. Manager to him. He denied the suggestion that he had planted the same on the accused persons. He stated that he does not remember as to whether any other police official had signed as a witness on the seizure memo or not. He stated that he recorded the disclosure statement of accused persons at PS but he does not remember name of the witnesses in whose presence accused persons had made their disclosure statement. He stated that he obtained the specimen signature of accused Sanjeev. He voluntarily stated that he does not remember on which he obtained the signatures. He stated that he also does not remember the name of the witnesses in whose presence he had taken the specimen signature of accused Sanjeev in PS. He denied the suggestion that he was deposing falsely or that he conducted all the proceedings at PS or that accused persons have been falsely FIR No. 375/93 State vs. Sanjeev etc. 11/32 implicated in this case.
15. PW8 Dr. S.C. Mittal deposed that in the present case, few question, specimen and admitted documents were referred to CFSL vide memo No. 1309/SHO/PS, dated 24.11.1993 for their scientific examination and opinion on them as per questionnaire. He deposed that the case was allotted to him for the examination and opinion. He had carefully and thoroughly examined all the documents with various scientific instruments and arrived at the following opinions.
I) the authorship of the questioned and signatures mark Q.1, A.2 and Q3 on Ex. PW1/B would not be connected with the writer of the standard English signatures Marked S3 to S12 on Ex. PW7/G, S13 on Ex. PW7/H and A1 on Ex. PW1/B. The detailed reasons for this opinion are given in my report which is Ex. PW8/A at pages 1 and 2.
II) It has not been possible to express any opinion regarding the authorship of the questioned English signatures marked Q.1 and Q.2 in comparison with the Standard English signatures marked S.1 to S.2 on Ex. PW7/E and F attributed to Rohtash due to the reasons that sufficient individual handwriting characteristic were not found common between the questioned and the specimen signatures to arrive at definite opinion. III) A careful microscopic examination and superimposition of the questioned FIR No. 375/93 State vs. Sanjeev etc. 12/32 rubber seal impression marked Q.3 on Ex. PW1/B and its comparison with the standard rubber seal impression marked S.14 on Ex. PW7/I and A1/I on Ex. PW1/B reveal differences in the design,, size and arrangement of letters and characters indicating that questioned rubber stamp mark Q.3 is not affixed from the rubber seal from which the specimen rubber seal impressions marked S.14 and A.1/1 have been taken. My opinion Ex. PW8/A bears my signatures at point A on both the typed pages which consists reasons for all the three above mentioned opinions. The corrections in the report are also in my hand which bear my short signatures. This report is based on the examination of the original documents with scientific instruments and no help of photographs is taken nor they were prepared in the case. This report is a correct report.
16. Sh. Gulshan Lal appeared in the witness box as PW9, but his testimony was not recorded as he was suffering from 'Parkinson disease'.
17. This so far is the prosecution evidence in the matter.
18. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP, have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in FIR No. 375/93 State vs. Sanjeev etc. 13/32 this case.
19. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against both the accused persons.
20. It stands duly established from the deposition of complainant (PW 1) duly corroborated by eye witnesses PW2 & 3 and the other material on record that on 21.08.1993 accused Devender and Sanjeev had presented cheque bearing no. 470561 at Indian Overseas Bank, Defence Colony Branch for its encashment and attempted to receive the payment of the cheque from the bank i.e. induce the bank to deliver to them the amount of the cheque, though, the cheque did not belong to them/was not issued to them.
21. The complainant Mr. T. Virappan on whose complaint the present prosecution was lodged was examined as PW1 and he categorically proved that on 21.08.1993 cheque bearing no. 470561 for a sum of Rs.26,269 was presented for encashment in their bank i.e. Indian Overseas Bank, Defence Colony Branch. He proved that after the cheque was presented Clerk Sudesh Kumar issued token no.98 however, on suspicion, he informed Mr. H.B.S. Rana, FIR No. 375/93 State vs. Sanjeev etc. 14/32 other Clerk of the bank and both the accused persons were apprehended. He proved that he gave his complaint Ex. PW1/A to the police along with the cheque in question i.e Ex. PW1/B and also handed over the accused persons to the police.
22. Testimony of this witness was duly corroborated by Sh. Har Charan Singh (PW2) and Sh. Sudesh Kumar (PW3). Sudesh Kumar (PW3) proved that after the cheque was presented he issued token no.98 to accused Devender against the presentment of the cheque. He also proved that on doubt, the accused was apprehended by bank official and handed over to the police. Sh. Har Charan Singh (PW2) lend further credence to the prosecution story when he corroborated the testimony of Sh. Sudesh Kumar as well as the complainant. He proved that after he was informed about the presentment of cheque by a suspicious person as well as issuance of token to him, both accused persons namely Devender and Sanjeev were apprehended/nabbed in the bank and the police was also called. He also proved that Senior Manager gave a complaint to the police and the token no.98 was also taken into possession.
23. PW6 HC Parsu Ram and IO/SI Sunil Kumar proved the arrest of the accused persons, recording of their disclosure statements, preparation of rukka upon the complaint of complainant Sh. T. Virappan, the seizure of the cheque FIR No. 375/93 State vs. Sanjeev etc. 15/32 and the token in question.
24. FIR was proved by W/SI Renuka vide Ex. PW3/A and MHC(M) HC Tilak Raj (PW5) proved the deposit of case property at the PS vide entry no.1219 as Ex. PW5/A.
25. During the course of arguments, Ld. Defence Counsel for accused Devender Kumar and Sanjeev Kumar vehemently argued that the prosecution has miserably failed to bring home the guilt against the accused persons. It was argued that the prosecution story suffers from various loopholes/lacuna. It was one of the arguments of the Ld. Defence Counsel that PW2 & 4 turned hostile and did not support the prosecution case and hence, the entire prosecution story was rendered unreliable. It was argued that prosecution failed to examine material witnesses i.e. the executor of the cheque or its beneficiary i.e. neither anybody from M/s Simplicity Engineering Pvt. Ltd. was examined nor any officials from M/s Insulation House was examined and their absence itself is fatal to the prosecution case. It was argued that prosecution failed to connect the accused persons with the cheque in question as the FSL report was against the prosecution story and accordingly accused persons deserve acquittal.
26. However, I do not agree with either contentions of the Ld. Defence FIR No. 375/93 State vs. Sanjeev etc. 16/32 Counsel.
27. In the case at hand, from the deposition of the complainant as well as the other bank officials it stands duly established that on 21.08.1993 the accused persons had indeed presented the cheque in question for its encashment knowing fully well that the cheque did not belong to them and they were not entitled to receive the payment thereof. The testimony of the bank officials is self sufficient to nail the accused persons. I have no reasons to disbelieve the complainant and the other bank witnesses i.e. PW1, 2 & 4. I find no reasons why they would depose falsely against the accused persons. No motive has been proved by the Ld. Defence counsel for false implication of accused persons. There is nothing on record to suggest that the complainant and the other bank witnesses or the investigating officer were inimical to the accused persons. In fact, there is nothing on record to suggest that the accused persons were known to anyone of them prior to the incident.
28. No doubt, the prosecution failed to examine any employee of either M/s Simplicity Engineering Pvt. Ltd. or M/s Insulation House however, that does not anyway render the testimony of the bank officials unreliable or unbelievable. In fact, the investigation and the way the charge sheet was filed in the court casts serious doubts upon the capability and intelligence of the police FIR No. 375/93 State vs. Sanjeev etc. 17/32 officials/investigating agency. The investigating agency lacked professionalism. I need not go into the depth of what kind of investigation should have been conducted however, it could and should have been much better. None the less, the law is well settled that an accused should not be allowed to scott free or the prosecution story disbelieved merely on account of defect in investigation. Reliance may be placed upon the law laid down in Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717).
29. Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies. Reliance may be placed upon law laid down in Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82, Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal) 231, Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660, (1999) 2 SCC 126; (1998) 4 SCC 517; AIR 2003 SC 1164; AIR 1996 SC 3035; 2000 SCC (Cri) 522; AIR 2002 SC 1937 and AIR 1996 SC 1393.
"To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective" (Karnel Singh v. State of M.P. AIR 1995 SC 2472) FIR No. 375/93 State vs. Sanjeev etc. 18/32
30. In the case at hand it stands unambiguously established from the deposition of PW1, 2 & 4 that the accused persons had come to the bank and presented the cheque in question. It was complainant T. Verappan's complaint i.e. Ex. PW1/A which formed the basis of the present prosecution. This complaint cannot be read in isolation or in piece meals. This complaint in fact goes onto explain as to under what circumstances the bank officials became suspicious about the accused persons and apprehended them. In the complaint, complainant T. Verappan while handing over the accused persons explained to SHO PS Defence Colony the circumstances in which the accused persons were apprehended. The jist of the complaint is that M/s Simplicity Engineers Pvt. Ltd. was maintaining an account with Indian Overseas Bank, Defence Colony Branch and on 18.08.1993 one Mr. Satish Kumar presented a cheque no. 470560 dated 13.08.1993 for Rs.50,500/ for encashment over the counter for payment of cash. The said cheque had the crossing "Payee A/c Only" cancelled. On the said day, Mr. Sugat Kaul, one of the employees of the company also presented another cheque for Rs.1 lac for payment and persuaded that both the cheques be encashed. However, at around 4.00 pm Mr. Sugat Kaul called the bank and informed that the cheque for Rs.50,500/ i.e. Cheque no. 470560 was not endorsed for bearer by their authorized signatory as it appeared on the cheque. In fact, the said cheque was sent by registered post to M/s Silicon Metal India at FIR No. 375/93 State vs. Sanjeev etc. 19/32 their Bombay address. Mr. Sugat Kaul further informed the bank that the company had also sent another cheque for Rs.26269/ bearing no. 470561(cheque in question) in favour of M/s Insulation House by way of registered post and he requested the bank to wait and watch and stop payment of the cheque no. 470561.
31. Now on 21.08.1993 the moment cheque no. 470561 for a sum of Rs. 26,269/ which is Ex. PW1/B was presented by the accused persons for encashment the bank became suspicious and apprehended the accused persons. This cheque too had the crossing "Payee A/c only" cancelled like the previous cheque as presented on 13.08.1993 i.e. Cheque no.470560. Both the cheques are on record and it is crystal clear that the A/c Payee were cancelled and the cheque was made a bearer cheque i.e. amount to be paid to the bearer of the cheque over the counter. Hence, this complaint proves and explains the exact sequence of events which led to the arrest of the accused persons. This complaint of Mr. T. Verappan was endorsed by the IO as Ex. PW7/A at 2.30 pm itself, prepared the rukka and got the FIR registered. This further puts to rest any questions of manipulations or the complaint being ante timed etc.
32. Moreover, if the accused persons were in deed innocent, had valid reasons to be in possession of the cheque or were never ever in possession of FIR No. 375/93 State vs. Sanjeev etc. 20/32 the cheque and never presented it as claimed by defence, then nothing stopped them from examining the employees of either M/s Simplicity Engineers Pvt. Ltd. or M/s Insulation House in their defence. They could have at least examined Mr. Sugat Kaul whose name appears in Ex. PW2/A to contradict the claims of complainant T. Verappan.
33. It was also one of the arguments of the Ld. Defence Counsel that during the cross examination both PW2 & 4 resiled/give contrary statements as against what was stated by them during their cross examination. For example, PW2 Har Charan Rana stated during his cross examination that he does not remember whether the police had obtained his signatures on some papers or not and went on to state that no proceedings were conducted in his presence. Further, he went onto state that he could not identified either of the accused and that he does not know anything about the presentment of the cheque or the issuance of the token and in fact, admitted that the token was not seized by the police in his presence. Similarly, PW4 stated that he does not remember whether his statement was recorded by the police or not and admitted that bank being a public place frequently visited by numerous persons it is difficult to identify each and every person. Furthermore, though PW2 & 4 claimed that the token was issued to accused Devender however, as per seizure memo Ex. PW2/A the token issued to have been recovered from accused Sajeev. It was argued that these contrary FIR No. 375/93 State vs. Sanjeev etc. 21/32 statements given by the witnesses cast serious doubts upon the demeanor of the witness and renders them unreliable.
34. However, I find no merits in the contentions of the Ld. Defence Counsel. The law is fairly well settled now in respect to the weightage to be attached to the testimony of a witness who has been declared hostile. Evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defence. ( Middolla Harijana Thimmaiah @ Thimmappa v. State of A.P., (A.P.) (FB) 2005(1) R.C.R.(Criminal) 873).
35. In Balu Sonba Shinde v. State of Maharashtra, 2003 SCC (Crl.) 112 the Hon'ble Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. Similar observations were made in case titled as Khujji v. State of Madhya Pradesh, 1992(3) RCR(Crl.) 158 (SC) : 1991 SCC(Crl.) 916, Jodhraj Singh v. State of Rajasthan, (SC) 2007(3) R.C.R.(Criminal) 172 and FIR No. 375/93 State vs. Sanjeev etc. 22/32 Radha Mohan Singh @ Lal Saheb v. State of U.P., (SC) 2006(1) R.C.R. (Criminal) 692.
36. In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was further held that these days it is not an uncommon practice that a witness is won over and he turned hostile.
37. Similarly in Nisar Khan @ Guddu v. State of Uttaranchal, (SC) 2006(1) Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab, (P&H) (D.B.) 2005(2) R.C.R. (Criminal) 813 and Swaran Singh v. State of Punjab, (SC) 2000(2) R.C.R. (Criminal) 762.
38. In Shankar Mangelal Lokhande v. State of Maharashtra, (Bombay) 2000(4) R.C.R.(Criminal) 229 the court observed while convicting the accused despite PWs turning hostile that experience showed that witnesses by lapse of time are won over and resile from their earlier statements.
FIR No. 375/93 State vs. Sanjeev etc. 23/32
39. In the case at hand, it is evident from the deposition of both PW2 & 4 that they did not turn hostile and in fact, what they had stated was a true account of the incident they had witnessed. No doubt, there were a few discrepancies but they were natural and bound to occur on account of passage of time and lapse of memory. Human memories are apt to blur with passage of time. The incident occurred in the year 1993 and the deposition of PW2 was recorded in the year 1997 and he was cross examined in the year 2004 i.e. after a gap of around 11 years. Similarly, the deposition of PW4 was recorded in the year 2003 i.e. after 10 years of the incident. After such a long time period a person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weightage/ due allowance.
40. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed FIR No. 375/93 State vs. Sanjeev etc. 24/32 up when interrogated later on. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Reliance may be placed upon the observations made by the Hon'ble Apex Court in case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
41. The law is well settled that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with un due importance. Trivial discrepancies ought not to obliterate an otherwise accept able evidence. One cannot come across a witness whose evidence does not contain some exaggeration or embellishments. Sometimes there could be even FIR No. 375/93 State vs. Sanjeev etc. 25/32 be a deliberate attempt to offer embellishment and sometime in their overanxiety they may give slightly exaggerated account. Court can sift the chaff from corn and find out truth from the testimony of witnesses. Evidence is to be considered from the point of trustworthiness. If this element is satisfied they ought to inspire confidence in mind of the court. Accordingly, I find no merits in the contentions of the Ld. Defence Counsel that though the token was issued to accused Devender but the fact that the same has shown to be recovered from accused Sanjeev it self proves that the prosecution story is false and concocted one. It is evident from the deposition of the bank officials as well as the other material on record that both the accused persons had visited the bank and both of them were appre hended. The disclosure statements of accused persons, recovery of the token and the admissions made by accused Sanjeev during his examination u/s 313 Cr.P.C. leaves no doubt that both of them were acting in furtherance of their common intention. They had a common intention to cheat the bank by presenting the cheque. Once, they were acting in furtherance of their common intention the token having exchanged hands in the bank between the accused persons is a great possibility and cannot be ruled out at all. Hence, it hardly matters as to from whom the token was recovered. Reliance may be placed upon the law laid down in section 34 IPC deals with the principle of vicarious liability in criminal jurispru dence. it punishes a person for acts done by him or the other in furtherance of the common intention shared by them. (Suresh v. State of U.P. AIR 2001 SC FIR No. 375/93 State vs. Sanjeev etc. 26/32 1344, Mithu Singh v. State of Punjab AIR 2001 SC 1929, Parasa Raja Manikyala Rao v. State of A.P. AIR 2004 SC 132, Girija Shankar v. State of U.P. AIR 2004 SC 1808, Nandu Rastogi @ Nandji Rastogi v. State of Bihar 2003, Krishnan v. State AIR 2003 SC 2978, Gopi Nath v. State of U.P. AIR 2001 SC 2493 and Lallan Rai v. State of Bihar AIR 2003 SC 333).
42. A careful scrutiny of the deposition of PW1,2 & 4 would revealed that they consistently deposed in terms of the prosecution story and supplemented/corrob orated each other on material particulars. Their testimony along with complaint Ex. PW1/A of complainant T. Verappan, seizure of the token i.e. Ex. PW2/A bearing the signature of PW2 Har Charan Singh Rana as well as seizure of cheuqe bearing no. 470561duly witnessed and signed by the complainant and PW4 Sudesh Kumar leaves no doubts about the presence of the accused per sons at the bank and the presentment of the cheuqe as well as the seizure of the token.
43. At this stage, I would like to highlight the answer given to question no.3 by accused Sanjeev during his examination u/s 313 Cr.P.C. The answer read as under: "I never presented any cheque for encashment. he is deposing falsely. In the year 1993, I used to work as a car mechanic. One Vinod FIR No. 375/93 State vs. Sanjeev etc. 27/32 KUmar got repaired his ambassador car from me. When I demanded my dues, he called me to Defence Colony market. at the market, I met Vinod and Devender. Devender went to the bank, I remained with Vinod and after some time Vinod asked me to got to the bank. When I reached the bank, Devender was already apprehended by the bank officials. Devender pointed out towards me and the bank officials apprehended me as well. I do not know what was my fault. They did not listen to me and instead started beating me. After some time, police came to the bank and arrested me in this case."
44. This answer is admissible in evidence against accused Sanjeev in view of sub clause 4 of section 313 Cr.P.C. as well as the law laid down in Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258 and State of H.P. V. Wazir Chand AIR 1978 SC 315 and it corroborates the claims of the bank witnesses regarding the presentment of the cheque and the arrest of the accused persons. It proves the presence of both the accused persons at the bank on the day of incident. Moreover, when read with the disclosure statement FIR No. 375/93 State vs. Sanjeev etc. 28/32 of accused Sanjeev as well as coaccused Devender it leaves no doubts regarding the crime committed by the accused persons.
45. As far as accused Devender is concerned, he gave evasive answers to the questions put to him during his examination u/s 313 Cr.P.C. he did not come up with any explanation to the incriminating material appearing against him. Even at the time the charge was framed he did not put up/disclose his defence and simply claimed he was innocent. The purpose of Section 313 Cr.P.C. is to afford the accused personally an opportunity of explaining any incriminating circumstances appearing in evidence against him and is based upon the most solitary principle of natural justice enshrined in the maxim audi alterem partum (B.R. Patil Vs. State of Karnartaka (2002) 8 SCC 740). When the accused fails to avail this opportunity, remains mum, it weakens his defence and forces the court to take up an adverse influence against him. (Bali Ram Prasad Vs. State of Mysore AIR 1973 SC 506, TP Divetia Vs. State of Gujarat AIR 1997 SC 2193).
46. How offence of attempt to cheat the bank was complete can be under stood by examining the relevant provisions of Section 415 and 511 IPC. Cheating has been defined U/s 415 IPC and the essential ingredients to bring a case with in the purview of Section 415 IPC are:
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1. Deception of any person.
2 (a) Fraudulently or dishonestly inducing that person:
(i) to deliver any property to any person or,
(ii) to consent that any person shall retain any property or
(b) 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.
47. Section 511 of IPC deals with attempt and it provides punishment for attempting to commit offences. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence. If it fails due to reason beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparation are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence (Abhayanand Mishra AIR 1961 SC 1698 and Koppula Venkat Rao AIR 2004 SC 1874).
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48. In Malkeet Singh Vs. State of Punjab, 1969 (1) SCC 157, a three judges bench of the Hon'ble Supreme Court on Section 511 IPC held that the test for determining whether the act of the appellant constituted an 'attempt' or 'preparation' is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless."
49. The term 'attempt' has not been defined in the Indian Penal Code. In the language of Stephen, an attempt to constitute a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. In other words, an attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but failing short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime, combined with the doing of some act adapted to, but failing short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted.
50. The moment the cheuqe was presented for encashment and token no.98 i.e. Ex. P1 issued against it the attempt to cheat the bank was complete. No further overt act was required on the part of the accused persons. They had done FIR No. 375/93 State vs. Sanjeev etc. 31/32 what all they were required to do for collecting the payment of cheque. Had the bank release the payment of the cheque to teh accused persons and the accused persons gone scott free from the bank the bank would have been cheated of the amount of the cheque. The drawer of the bank or the drawee would have claimed and recovered back the amount from the bank because the cheque was never mend to be a bearer cheque and it was a forged cheque. The Bank could not have escape its liability had the cheque been encashed so it was not only as if the drawer of the cheque i.e. M/s Simplicity Engineers Pvt. Ltd. or the drawee of the cheque i.e. M/s Insulation House was attempted to be cheated. Even the bank would have been the victim.
51. Hence, in view of my above discussion, I hold accused Sajeev and Devender Kumar guilty u/s 420 read with Section 511 IPC.
Announced in the open (Gaurav Rao)
Court on 19.01.2012 MM (SD)/Delhi
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