Delhi District Court
State vs . Madhu Kant Pandey on 1 September, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
FIR NO. : 256/00
PS : Preet Vihar
Offence complained of : 420/511 & 471 IPC
Date of commission of offence : 18.06.2000
Unique Case ID No. : 02402R0106572003
STATE Vs. Madhu Kant Pandey
S/o Sh. Shankar Dayal Pandey R/o E152, New Ashok Nagar, Delhi.
................. Accused
Sh. Sharad Sharma S/o Late Sh. Raj Narayan Sharma
R/o C9, Bharat Apartment, I.P. Extn., Plot No. 31, Delhi.
............. Complainant
Date of Institution : 05.09.2001
Plea of accused : Pleaded not guilty
Date of reserving judgment/ order : 23.08.2012
Date of pronouncement : 01.09.2012
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 18.06.2000 at about 10:45 AM
at Bank of Punjab, Cblock, Preet Vihar, Delhi, falling within the jurisdiction of Police
Station Preet Vihar, accused Madhu Kant Pandey was found in possession of a
forged cheque bearing No. 079610 dated 18.06.2000 of Rs.20,000/ of Bank of
Punjab drawn by Delhi Tents and Decorators and tried to encash from the bank.
Page No. 1 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E)
Thus, accused Madhu Kant Pandey is alleged to have committed an offence
punishable u/s 420/511 & 471 IPC.
FIR
On the basis of the said allegations and on the complaint of the
complainant Sharad Sharma, an FIR bearing number 256/00 under section
420/511/471IPC was lodged at Police Station Preet Vihar on 18.06.2000.
CHARGE After investigation, chargesheet under section 173 Cr.P.C was filed on 05.09.2001.
The accused was summoned to face trial and he was supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the chargesheet, a charge for the offence punishable under section 420/511 & 471 IPC was framed against accused Madhu Kant Pandey and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 01.08.2006.
LEGAL REQUIREMENT Accused Madhu Kant Pandey is alleged to have committed an offence punishable u/s 420/511 & 471 IPC.
In order to prove the allegations of offence punishable under section 420/511 IPC, the prosecution need to prove the following essential ingredients : (1)That there was deception of any person/complainant. (2)That the accused fraudulently or dishonestly induced that person/complainant to deliver any property to any person or to consent that any person shall retain any property OR The accused intentionally induced that person to do anything or to 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.
Page No. 2 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) The ingredients to prove the offence punishable under section 471 IPC are as follows: (1)Fraudulent or dishonest use of a document as genuine. (2)The person using it must have knowledge or reason to believe that the document is a forged one.
PROSECUTION EVIDENCE In order to prove the charges the prosecution cited 6 witnesses and during prosecution evidence six witnesses were examined, of which the complainant is PW2.
PW - 2 Sharad Sharma in his examinationinchief stated that on 18.06.2000 he was posted with Bank of Punjab, Preet Vihar as Manager and on that day he received a call at home at about 10:45 AM that he was urgently required in branch. He immediately rushed to the branch where Smt. Niharika Vajpayee (an employee of the bank) produced accused along with a cheque and informed him that accused was an impostor and he wanted to withdraw Rs.20,000/ with the help of bearer cheque of Delhi Tents & Decorators Company on which the signatures were forged. The witness further deposed that he also checked the signatures on the cheque and found it to be forged. After that police was called and verification was also made from representatives of Delhi Tents and Decorators Co. who was present in bank, who confirmed that the cheque was not issued by the company. After the police came to the branch, the accused was handed over to police and police recorded the statement of this witness which is Ex. PW2/A. This witness was crossexamined by Ld APP for the state with the permission of the court in which the witness admitted the recording of disclosure statement Ex. PW2/B, the personal search memo of accused Ex. PW2/C, the seizure memo of cheque Ex. PW2/D and the taking of specimen signatures and Page No. 3 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) writing of accused on eight pages Ex. PW2/E1 to Ex. PW2/E8.
Besides this witness, the only other nonpolice witness is PW6 Mahender Kumar Mittal, who was summoned after an application u/s 311 of Cr.P.C was moved by Ld. APP for the state. The said person was the owner of Delhi Tents and Decorators Co. in 2000 and he testified that the cheque Ex. P1 was never issued by him and does not bear his signature. The witness also admitted that his specimen signatures were taken by police and the specimen signature sheets are Ex. PW6/A to F. The remaining four prosecution witnesses are all police witnesses and they deposed as regards the investigation carried out by them.
PW - 5 ASI Rishi Pal was the first police official to reach the spot. He deposed that on 18.06.2000 upon receiving DD No. 17 B at about 10:50 to 11:00 AM he along with home guard Rajender, reached Bank of Punjab, Preet Vihar, on Government motorcycle where he met PW2 Sharad Sharma. He recorded statement of PW2 which is Ex. PW2/A and PW2 also produced the accused and cheque to this witness. He prepared tehrir on Ex. PW2/A which is Ex. PW5/A and handed over the same to PW3 Ct. Amrit Lal for registration of FIR. He went to PS and after registration of FIR he came back with PW4 SI Ashwani Kumar and further investigation was conducted by PW4. The cheque was signed by this witness vide memo Ex. PW2/D and this witness correctly identified the accused in court. The witness further deposed that he handed over the accused and seizure memo and cheque to SI Ashwani Kumar who arrested the accused and conducted his personal search vide memo Ex. PW2/C. PW - 3 HC Amrit Lal is the second police official who was called to the spot by PW5 through Home Guard Rajender. He was handed over tehrir Ex. PW 5/A for registration of FIR. He went to PS where FIR was registered by Duty Officer Page No. 4 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) PW - 1 Riaqub Ali, who handed over the FIR Ex. PW1/A to PW3 and PW3 along with PW4 SI Ashwani Kumar went to the spot where SI Ashwani Kumar arrested the accused and conducted his personal search vide memo Ex. PW2/C. The cheque was also seized vide memo Ex. PW2/D and disclosure of accused was recorded which is Ex. PW2/B. The witness correctly identified the accused and lastly deposed that IO also obtained the signature and specimen writing of accused which are Ex. PW2/E1 to 8.
PW - 4 SI Ashwani Kumar is the last police official to reach the spot as he was handed over the present FIR by PW1 for further investigation. This witness along with PW 3 went to the spot where PW5 ASI Rishi Pal handed over the accused, cheque and its seizure memo to this witness. PW4 thereafter conducted personal search of the accused vide memo Ex. PW2/C and recorded his disclosure statement Ex. PW2/B. Thereafter, the accused was arrested by him and intimation of arrest (Ex. PW4/A) was given. He also took specimen signature and hand writing of the accused on paper Ex. PW2/E1 to 8. He also took specimen writing of Mahender Kumar Mittal (PW6) on 20.12.2000 and sent the writings for comparison to FSL.
Besides all this evidence, there is one other piece of evidence against the accused which is the FSL report dated 28.11.2002 which is per se admissible u/s 293 of Cr.P.C and in which the handwriting in which the handwriting expert has opined with reason that the writing of word "Santosh Kumar Singh" on the back side of cheque Ex. P1 is in the handwriting of accused. Thus, the FSL report is an important piece of incriminating evidence against the accused.
On the basis of this evidence, the prosecution seeks conviction of accused under section 420/511 and 471 of IPC.
Statement of accused u/s 313 Cr.P.C recorded on 02.02.2012 wherein Page No. 5 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) he simply denied the allegations of prosecution and stated that he has been falsely implicated in the present case. Thereafter, on 05.07.2012 additional statement u/s 313 Cr.P.C of accused was recorded.
I have heard Ld. APP for the state and Ld. counsel for accused and have also carefully perused the entire records.
JUDICIAL RESOLOUTION As per the story of prosecution accused came to Bank of Punjab along with a forged cheque for its encashment and presented the same to Ms. Niharika Vajpayee, however, interestingly and for reasons unknown this witness has neither been cited by the prosecution in the list of witnesses, nor, she has been examined during course of prosecution evidence.
The only official who has been examined from the bank is Mr. Sharad Sharma the Manager of the bank on whose complaint the present FIR was lodged, the testimony of this witness has already been discussed above and from his evidence it is quite clear that he was not present in the bank at the time when the accused allegedly presented the forged cheque for encashment. Rather, this witness has himself stated that he was present at his home at 10:45 AM and only upon receiving a call as regards the incident he rushed to the bank where the entire incident was narrated to him by Smt. Niharika Vajpayee. Thus, it is clear that neither, the cheque was presented in the presence of this witness, nor, it was signed on the back side by the accused in the presence of this witness.
As per section 60 of the Indian Evidence Act oral evidence in all the cases must be direct i.e., if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it.
In the present case neither, PW2/ complainant saw the accused Page No. 6 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) presenting the cheque to any bank employee, nor, he heard the accused requesting any bank employee to encash the cheque in question. It may be noted here that this witness was handed over the cheque in question by Ms. Niharika Vajpayee, and this witness never saw the accused either in possession of the cheque or presenting the cheque for encashment.
Thus, the testimony of this witness as regards the fact that accused came to the bank along with a forged cheque and presented it for encashment is hearsay, hence, inadmissible u/s 60 of Indian Evidence Act. The logic behind this holding such evidence inadmissible has been beautifully explain in Best, 12 edition in following words : "Derivative or secondhand proofs are not receivable as evidence in causa........... Instead of stating as maxim that the law requires all evidence to be given on oath we should say that the law requires all evidence to be given under personal responsibility; i.e., every witness must give his testimony, under such circumstances as expose him to all the penalties of falsehood, which may be inflicted by any of the sanctions of truth........ The true principle therefore appears to be this - that all secondhand evidence, whether of the contents of a document or of the language of a third person, which is not connected by responsible testimony with the party against whom it is offered, is to be rejected".
Hence, the testimony of this witness with respect to whatever happened in the bank, prior to his reaching the bank, is all in admissible in evidence.
There is one other piece of evidence on which the prosecution is very strongly relied is the FSL report dated 28.11.2002 which is admissible u/s 293 Cr.P.C as per which the words 'Santosh Kumar Singh' written on the back side of the cheque is in the handwriting of accused Madhukant Pandey whose specimen signatures/ handwriting were taken on different sheets of paper by the IO on the Page No. 7 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) date of incident itself.
Though, it is correct that this piece of evidence is a highly incriminating piece of evidence against the accused as it relates the accused to the forged cheque and also gives indication towards the fact that the said cheque was attempted to be presented by accused for encashment.
However, perusal of record reveals that the specimen signature and handwriting of the accused were not taken by the IO after obtaining permission from the court, rather, the said specimen signature and handwriting were taken by the IO at the spot itself in the presence of complainant. Thus, the specimen handwriting of the accused was already taken before he was produced for the first time in the court. This fact is clear from the testimony of complainant PW2 and of IO PW4 SI Ashwani Kumar as both these witnesses state that specimen signature and handwriting of accused were obtained at the spot itself on 8 pages which are Ex. PW2/E1 to E8. The question that has arisen before the court in view of the manner in which specimen signature and handwriting of the accused were taken by the IO is whether the opinion of the handwriting expert on the basis of specimen signature / handwriting of the accused obtained in the aforesaid manner can be taken into consideration against the accused ?
This question has been answer by Hon'ble Supreme Court in Judgment titled Sukhvinder Singh Vs. State of Punjab (1994) 3 SCR 1061 and by Hon'ble Delhi Hight Court in judgment titled Rakesh Kumar Vs. State 109 (2004) DLT 826 and in both these judgments it has been observed that in case where specimen writing of the accused is obtained without obtaining prior permission from the court, such specimen hand writing of the accused cannot be made use of during the trial and the report of the handwriting expert on the basis of such specimen handwriting is thus rendered of no consequence at all and could not be Page No. 8 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) used against the accused to connect him with the crime.
The relevant para of the judgment in Rakesh Kumar (supra) is quoted below :
18.Moreover, the alleged specimen signatures/ handwriting/ thumb/ finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the i.e. without prior permission from the court. Facts in the case of Sukhvinder Singh and others Vs. State of Punjab MANU/ SC/0783/1994 : [1994] 3SCR 1061, were that specimen handwriting of the appellant were taken under the direction of the Executive Magistrate during the investigation when no inquiry or trial was pending in his court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime. In the present case the specimen signatures/ writing/ thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker looting than that of Sukhvinder Singh (supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (supra) it follows that the specimen writing/ thumb impression/ finger print impression of the appellant Sri Chand Chandra Shekhar could not be made use of during the trial. The report of the hand writing expert/ Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime.
Thus, this incriminating piece of evidence, because of technical reasons, cannot be read into evidence against the accused and cannot be used against him for connecting him with the offences alleged.
Consequently, the only incriminating evidence against the accused is Page No. 9 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E) the hearsay inadmissible testimony of complainant PW2 and inadmissible FSL report. All the remaining evidence against the accused is only with respect to the investigation carried out by the police agency and is not sufficient to connect the accused with the offences alleged us 420/511 & 471 IPC. Rather, prosecution has also failed to prove that the cheque was recovered from the possession of accused or that at some point of time it was in possession of accused as, prosecution failed to examine Niharika Vajpayee, the Bank Employee to whom the cheque was allegedly handed over by the accused for encashment.
CONCLUSION Thus, the prosecution in view of the above discussions has failed to prove that accused Madhu Kant Pandey has committed offences punishable u/s 420/511 IPC & 471 IPC and therefore accused Madhu Kant Pandey is acquitted therein.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 01.09.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 01.09.2012 Certified that this judgment contains 10 pages and each page bears my signature.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 01.09.2012 Page No. 10 / 10 FIR No. 256/00 State Vs.Madhukant Pandey S.P.S. Laler, MM06(E)