Delhi District Court
State vs . Sarvesh Pandey on 9 April, 2014
IN THE COURT OF MS. BHAVNA KALIA
METROPOLITAN MAGISTRATE06, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No.657/1992
P.S. Kalkaji
U/s 468/471/420 IPC
STATE VS. SARVESH PANDEY
JUDGMENT :
a. Sl. No. of the case : 67/2
b. Date of Institution : 12.05.1994
c. Date of Commission of Offence : 18.11.1992
d. Name of the complainant : Sh. Gurcharan Singh
Senior Manager
Punjab & Sindh Bank,
Nehru Place, New Delhi
e. Name of the accused and his : (1) Sarvesh Pandey)
parentage and address S/o Girish Pandey
R/o F220, Shakarpur J.J
Colony, Punjabi Bagh,
New Delhi
(2) S. S Rai
(Absconder)
f. Offence complained of : U/s 468/471/420 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 05.03.2014
i. Final Order : Acquitted
FIR NO. 657/1992 PAGE 1 OF PAGE 17
PS KALKAJI
j. Date of such order : 09.04.2014
At the outset it is stated that the present judgment is only with regard to accused Sarvesh Pandey and not with regard to accused S.S Rai who has been declared an absconder/ proclaimed offender. Case of the prosecution in brief:
It is the case of the prosecution that on 30.11.1992, Mr. Gurcharan Singh, Senior Manager, Punjab and Sind Bank, Nehru Place went to police post Nehru Place and gave a complaint to SI Raj Kumar against one Nagender Ray for cheating the Bank in a sum of Rs. 1,40,000/. The amount was misappropriated from the account of M/s Jasai Export Pvt. Ltd. opened with the said Bank and Branch. Mr. Nagender came to the Bank on 18.11.1992 and obtained a cheque book by forging the signatures of the managing director of M/s Jasai Export. He also withdrew a sum of Rs.
1,40,000/ on 18.11.1992, 19.11.1992, 20.11.1992 and 21.11.1992 by forging the signature of the managing director. This came to the notice of the Bank through a letter written by the managing director of the company stating that some unauthorised person has withdrawn the money. It was further stated that the person was unauthorised to take the cheque book and withdraw the cash on dates mentioned on the cheques. There was a request for investigation and tracing the culprits. SI Raj Kumar investigated the matter. He recorded statement of witnesses under section 161 Cr.PC and FIR NO. 657/1992 PAGE 2 OF PAGE 17 PS KALKAJI took specimen signature card from Bank, requisition slip through which the cheque book was issue and the four impugned cheques. During investigation, on 1.12.1992, Mr. Lekh Raj Chugh from the Bank stated that he had one friend, Mr. Raj Kumar, working as Manager with Andhra Bank, Asaf Ali Road who told him on the phone that in a similar incident in Andhra Bank, one boy was caught namely Nagender Ray who stated his name to be Sarvesh Pandey. He was identified by Bank officials. He was arrested. He made his disclosure in which he stated that he had gone to one person S.S Rai in Inglighment, Darya Gang, who met him for the purpose of employment but instead gave him bank requisition slips. He got the cheque book issued and cash on presentation of cheques which he handed over to S.S Rai and S.S Rai gave him money in return. He stated that he did not know the whereabouts of S.S Rai. S.S Rai could not be located/ traced even after detailed search because of incomplete address details. Specimen signatures/ handwriting of the accused was taken and sent to CFSL for examination and report was obtained on 24.3.1993. Challan was filed thereafter, with accused S.S Rai mentioned in coloumn no. 2. Charge:
Prima facie offence was made out against the accused and he was charged under section 468 IPC for forging requisition slip on 18.11.1992, for issuance of cheque book of A/c no. 1601 of Jasai Export and for forging cheque nos. 625209, 625214, 635212 and 625202 dated 19.11.1992, FIR NO. 657/1992 PAGE 3 OF PAGE 17 PS KALKAJI 20.11.1992 and 21.11.1992 amounting to Rs. 1,40,000/.
He was further charged for offence under section 471 IPC for fraudulently/ dishonestly using as genuine above stated documents which he knew to be false and forged.
He was further charged for committing offence under section 420 IPC for cheating Punjab and Sind Bank on the said date and time, to deliver Rs. 1,40,000/ to him from the account of Jasai Export on basis of forged documents.
Prosecution Evidence:
Prosecution examined nine witnesses to prove its case. PW1, Mr. Lekh Raj Chugh stated that on 18.11.1992 he was working as an officer at Punjab and Sind Bank, Nehru Place. On that day the acccused came and presented a requisition slip for issuance of cheque book stating his name to be Nagender Rai. The requisition slip at the back appeared to bear the signatures of Managing Director of M/s Jasai Exports which were later on found to be forged. However, PW1, after verifying the signatures from Bank's records, issued a cheque book to the accused. After that four cheques were presented in the month of November 1992 on 18/19/20/21 amounting to Rs. 20,000/, 30,000/, 40,000/ and 50,000/ respectively by the accused which were passed for payment after verifying the signatures of the Managing Director. Thereafter on 25.11.1992, the FIR NO. 657/1992 PAGE 4 OF PAGE 17 PS KALKAJI Managing Director called the Bank and said that he had not withdrawn any amount from the Bank. Thereafter, it was found that the signatures of the Managing Director were forged. PW1 discussed the matter with his friend Raj Kumar who was working as Branch Manager, Andhra Bank, Asaf Ali Road. After a few days, Mr. Raj Kumar called PW1 and told him that the same thing had happened at their Branch and they had caught the person red handed. PW1 reached that Branch and came to know that the person had been handed over to PS Kamla Market. He went to the police station and told the police that the boy was the same boy who had gone to their branch also. He roported the matter to his Bank and PS Kalkaji. He handed over the original requisition slip no. 622801 and 622850 Ex. PW1/A to the police which was seized vide memo Ex. PW1/B. He signed the seizure memo. He was cross examined at length and he stated that Jasai Export had a current account with the Bank and the MD or its employees used to come to the Bank for banking transactions. He stated that in normal practice cheque book used to be issued on a requisition slip authorised by a customer and in this case the same was attested by the MD. On the basis of the same cheque book was issued. He further stated in his cross examination it was presumed that Mr. Nagender Rai had come to their Branch for withdrawl getting cheque book issued and for withdrawl of money. Number of parties used to withdraw cash regularly for more than Rs. 40,000/. However, if the amount was for more than 20,000/, the cheque used to go for second scrutiny which scrutiny happened in this case. On second scrunity, the signatures were to be verified and he did not know if this was done. He stated on 18.11.1992 a FIR NO. 657/1992 PAGE 5 OF PAGE 17 PS KALKAJI call came to the branch which was transferred to him and a person from the other side said that he was S.P Singh calling from Jasai Exports and he had sent a representative for withdrawl of money. He had specimen signatures of Mr. S.P Singh and he checked the signatures before clearing the cheques. He stated that on 22.11.1992, he came to know that there was a cheque of such amount which did not meet the sufficient funds of the company and Mr. Chachi from the company and senior bank official, Mr. Gurcharan was informed. He denied the suggestion that the accused did not visit the Bank for issuance of cheque book or for withdrawl of any amount.
PW2 Mr. Anil Khanna, cashier Punjab and Sind Bank, Nehru Place, stated that on 18/20/21 November 1992, he received three cheques for 20,000/, 30,000/ and 50,000/ and he made payment to Mr. Nagender. On 25/26 November 1992 he came to know that the cheques were forged. He identified the accused in court and stated that he had signed the cheques in front of him. The police informed them that one person has been apprehended from Canara Bank, Asaf Ali Road and he and Mr. Chugh accompanied the police to PS Kamla Market. He was cross examined and he denied the suggestion that the accused never visited the branch for withdrawl of cash.
PW3 Pradeep Mishra, Clerk/Cashier Punjab and Sind Bank, Defence Colony stated that on 19.11.1992 he was posted at Nehru Place Branch and on that day one cheque belonging to Jasai Export for Rs. 30,000/ was presented for encashment and on the back of the cheque it bore the stamp of FIR NO. 657/1992 PAGE 6 OF PAGE 17 PS KALKAJI Jasai Export and he got it signed from the person who presented it and that person was Nagender Rai. He was cross examined and he stated that he had also gone to PS Kamla Market and accused was present at the police station. He denied the suggestion that no cheque was presented by the accused as aforesaid, for payment.
PW4 Sh. Amarjeet Singh, Computer operator at Punjab and Sind Bank, Nehru Place stated that on 18.11.1992, one cheque for Rs. 20,000/ was presented and in routine business he had checked the particulars of the said cheque. He stated that when he presented the cheque to the computer, it was rejected and when he checked he was told that the cheque book was issued on that day only. Thereafter he got the sign of the person who had presented the cheque on the back of the cheque and when it was again fed into the computer, it was accepted. He identified the accused as the person who had presented the cheque. Again on 19.11.1992 a cheque was presented for Rs. 30,000/, on 20.11.1992 a cheque was presented for 40,000/ and on 21.11.1992 a cheque was presented for Rs. 50,000/. All the cheques were presented by the accused. He stated in his cross examination that he had gone to PS Kamla Market to identify the accused and they were called at the PS at instance of Manager, Andhra Bank. He denied the suggestion that the accused never presented the said cheques.
PW5 Sh. S.L Mukhi, CFSL stated that he had examined the documents sent for examination to CFSL namely Ex. PW5/D (cheque FIR NO. 657/1992 PAGE 7 OF PAGE 17 PS KALKAJI bearing no. 625209), Ex.PW1/A (requisition slip for cheque book containing 25 leaves), Ex.PW5/L (Specimen signature slip with bank), PW5/H (cheque bearing no. 625214), Ex.PW5/F (cheque bearing no. 625212), PW5/E (cheque bearing no. 625202) and PW5/G (requisition slip for cheque book containing 25 leaves) to be compared with Ex. PW5/K (S1
- specimen signature of Sh. S.P Singh MD of Jasai Export) Ex. PW5/N (S2
- Specimen Stamp that was used by MD of Jasai Export), Ex. PW5/O (S3 - Specimen stamp used by Director of Jasai Export), Ex. PW5/A and PW5/B (S1 and S2 - Specimen signature of accused Sarvesh Pandey @ Nagender Rai in Hindi), S3 and S4 (Specimen signature of accused Sarvesh Pandey @ Nagender Rai in Hindi) and Ex. PW5/C (S5 Specimen signature of accused Sarvesh Pandey @ Nagender Rai in Hindi) and he had come to the following conclusion:
1.Specimen Signature of Nagender Rai matched the questioned signatures in hindi of Nagender Rai on the back of the cheques and requisition slip implying thereby that Nagender Rai wrote his name in hindi at the back of the cheques and on the requisiton slip.
2.Specimen signature of S.P Singh, MD, Jasai Export Ex.PW5/K were not the same as questioned signatures in English on the front and back of the cheques.
3.Specimen rubber seal imporession Ex. PW5/N and PW5/O did not tally with questioned rubber seal impression on the said cheques.
FIR NO. 657/1992 PAGE 8 OF PAGE 17 PS KALKAJI
4.Admitted rubber seal impression Mark A4 on Ex.PW1/A (requisition seal) did not tally with questioned rubber seal impression on the said cheques.
5.Admitted rubber seal impression Mark A5 and A6 on Ex.PW5/L (specimen signature slip with Bank) did not tally with questioned rubber seal impression on the said cheques.
PW5 denied the suggestion that the said report was not a conclusive report.
PW6 stated that he had received rukka through SI Rajkumar for registration of present FIR Ex. PW6/A. PW7 Gurcharan Singh Manager Punjab and Sind Bank, stated that in the year 1992 he was posted as Branch Manager Punjab and Sind Bank, Nehru Place. The accused forged requisition slipon basis of which he got issued one cheque book. The accused also cheated the Bank in the amount of Rs. 1,40,000 by encashing four cheques of M/s Jasai Exports by fraudulently forging the sign of MD of the said company. He came to know about this when the MD had filed a complaint. PW7 filed a complaint with PS Kalkaji Ex. PW7/A. He handed over to the police complaint from Jasai Export, speciment sign slip, card of Sh. S.P Singh, impugned requisition slip and four impugned cheques vide memo Ex. PW7/B. The complaint of FIR NO. 657/1992 PAGE 9 OF PAGE 17 PS KALKAJI Jasai Export is mark X. The imugned cheques are Ex. PW5/D, PW5/E, PW5/F, PW5/G and PW5/H. During his cross examination he stated that he himself had verified the signatures on the back of the cheque with the specimen signatures available with the Bank. He stated that he could not say whether the issuing cleak in connivance with some other officals of the Bank had actually procured the cheque book. He stated that the police had never interrogorated him. He stated that he had made inquiry from current account officer incharge and the person who had issued the cheque book and token book. The token book contained the account number, name of account holder and the person to whim said payemt of cash was made. The token book was being maintained by the current accounts officer. He stated that he did not know whether the token book was handed over to the police or not. He further stated that he had an experience of almost 27 years of working in a Bank and in his opinion the rewuisition slip was a genuine one. He could not state as to who had signed the requisition slip. He stated that he did not know the accused personally.
PW8 Raj Kumar, Ex. Manager Andhra Bank stated that in the year 1992 he was working as Manager at Andhra Bank. One of his friends Lekh Raj Chugh, was working as officer in Punjab and Sind Bank, Nehru Place had told him that one Nagender Rao had withdrawn some money from the Bank through a forged cheque. After a few days, same incident happened in Bank of PW8 and three cheques were used to withdraw Rs. 80,000/ from current account of one of the Bank's customers. He identified the accused as FIR NO. 657/1992 PAGE 10 OF PAGE 17 PS KALKAJI the person who had come to withdraw the money. The account holder had informed the Bank that that they had not issued any cheque to withdraw the money. The matter was investigated and the accused again came to the Bank to withdraw some more money and since there was no balance in that account, the accused was apprehended and taken to PS Kamla Market. He told his friend Lekh Raj who went to the police station with his colleagues who identified the accused. He stated in his cross examination that Lekh Raj was his friend from school and also his neighbor. He denied the suggestion that accused had never withdrawn any money from Andhra Bank on basis of forged cheque.
PW9 IO/ Insp. Raj Kumar stated that on 20.11.1992 he was posted at PS Kalkaji and on that day he received a complaint from Manager, Punjab and Sind Bank, Nehru Place and one FIR was registered. During investigation Lekh Raj Chugh informed him about similar incident at Andhra Bank and investigation there. He took PC remand of accused but nothing was recovered from the accused. He obtained specimen handwriting and signatures of the accused. He also collected speciment signatures of S.P Singh. All documents namely the cheques, requisition slip, specimen signature with Bank and specimen signatures collected by IO, were sent to FSL for examination. He recorded statement of witness and reported the matter to SHO. He stated in his cross examination that he had not taken court permission to take the specimen signatures of the accused and the same were taken at the police station. He stated that he did not know FIR NO. 657/1992 PAGE 11 OF PAGE 17 PS KALKAJI whether he interrogated Sh. S.P Singh or not and that he was informed by the Bank officials that the complaint had come from Sh. S.P Singh. He denied that the accused was falsely implicated in the case. He denied the suggestion that during the investigation he came to know that the accused had not forged the cheques.
During cross examination of all the witnesses, the counsel for the accused had tried to establish that accused has been falsely implicated in this case by asking witness about the happenings during investigation but the witness have mostly stated that they do not remember about most of the happenings during investigation.
Statement of the accused under section 313 Cr.PC:
The accused stated that he had been falsely implicated in this case and that he had not forged the requisition slip or the cheques. He stated that the investigation was unfair and documents which could have shown his innocence were not revealed.
Decision and Reasons:
The accused was charged under section 468 IPC for forging requisition slip on 18.11.1992, for issuance of cheque book of A/c no. 1601 of Jasai Export and for forging cheque nos. 625209, 625214, 635212 and 625202 dated 19.11.1992, 20.11.1992 and 21.11.1992 amounting to Rs. 1,40,000/. He was further charged for offence under section 471 IPC for FIR NO. 657/1992 PAGE 12 OF PAGE 17 PS KALKAJI fraudulently/ dishonestly using as genuine above stated documents which he knew to be false and forged.
He was further charged for committing offence under section 420 IPC for cheating Punjab and Sind Bank on the said date and time, to deliver Rs. 1,40,000/ to him from the account of Jasai Export on basis of forged documents.
Section 468 IPC provides punishment for using forged document for the purpose of cheating. Section 471 provides punishment for using as genuine a forged document. Thus for bringing an offence under both these sections, to establish forgery is mandatory.
Forgery is defined under section 463 IPC and is the making of a false document for the purpose of using it an genuine. In order to constitute forgery, the first essential is that the accused should have made a false document. The essential ingredients of the offence are:
1.making of a false document;
2.such making should be with the intent:
a. to cause damage or injury to the public or to any person; or
3.to support any claim or title; or
4.to cause any person to part with property; or
5.to cause any person to enter into any express or implied contract; or
6.to commit any fraud or that fraud may be committed.
FIR NO. 657/1992 PAGE 13 OF PAGE 17 PS KALKAJI
Thus, it is clear from above points that apart from making a false document the accused should intend to cause damage or injury to someone1.
To constitute that offence of forgery under this section it is not enough to prove that the person charged with the offence knew that the document might be damaging to another, it must also be proved that such was his intention2.
To prove the guilt under this section, three questions must be answered.
1.Is the document false?
2.Is it made by the accused?
3.Is it made with an intent to defraud?
If all the above are in the affirmative, the accused is guilty.3 In the present case, the first question is in the affirmative. The second in the negative. The third in the affirmative. Thus, all the three not being in affirmative, the offence is not established.
The accused has been identified by Bank witnesses and they have stated that he forged the requisition slip and cheques and withdrew money from the Bank . The established facts are:
1.As per the FSL report, there is no doubt that these documents were forged.
1 RR Diwaker v. B Gutal, (1974) 1 Kant LJ 328 2 Feda Hussain v. Empress, 10 CLR 184 3 Ram Narain Poply v. CBI, AIR 2003 SC 2748 FIR NO. 657/1992 PAGE 14 OF PAGE 17 PS KALKAJI
2.The signatures of S.P Singh and the stamp of Jasai export on the requisition slip and the cheques was not genuine.
3.It establishes that the requisition slip and cheques were forged and not issued by Jasai Export or its MD.
4.The said requisition slip and cheques were presented to the Bank by accused Sarvesh Pandey is also not disputed. The witnesses have deposed to this effect quite clearly.
5.Thus it implies that the accused Sarvesh Pandey presented forged requisition slip and forged cheques to the Bank.
6.Nothing was recovered from the accused - no money and no rubber stamps Relevant questions not answered:
1.Who stamped and signed on the requisition slip and cheques.
2.Why did Sarvesh Pandey present himself/sign with the name Narender Rai.
3.The intention or knowledge on part of the accused that the said documents were forged and being used as genuine.
For establishing the above stated offences, it has to be seen whether the said documents were forged, whether the accused knew that they were forged and whether he used the same knowing them to be forged. Hence, his knowledge and intention becomes important. The same has not been FIR NO. 657/1992 PAGE 15 OF PAGE 17 PS KALKAJI established by the prosecution. Further definition in section 463 IPC is to be read with section 464 IPC which provides that the act should be done dishonestly or fraudently to sustain a conviction for forgery4. The prosecution has failed to establish that the accused knew the document was forged and used the same as genuine. Thus, offences under section 468 IPC and 471 IPC are not made out.
The accused has also been charged under section 420 IPC for cheating the complainant. To constitute an offence under section 420 IPC there must essentially be the following:
1.Deceit, that is to say, dishonest or fradulent misrepresentation;
2.Inducing the person deceived to part with property.
There appears to be no inducement on part of the accused person to the Bank to deliver the property. The accused definitely showed a forged cheque to the Bank for taking money. But whether he did so with an intention to deceive the Bank is to be proved. His knowledge that the said document was forged has not been proved. His intention to use the forged document as genuine has not been proved. Thus, his intention use the forged document to induce the Bank to fraudently deliver property to him has not been proved by the prosecution. Moreover, nothing was recovered from the accused by the IO. He does not seem to have caused any wrongful gain to 4 Emperor v. Abdul Humid 46 Cr LJ 341 FIR NO. 657/1992 PAGE 16 OF PAGE 17 PS KALKAJI himself. His fraudently misrepresentation and his dishonest inducement has not been established. No witness has deposed to this effect. Though the documents speak for themselves, but the documents also do not show any forgery on part of the accused. His signatures at the back of the cheques prove that he signed the cheques as bearer of the cheques but merely this fact does not prove his dishonest intention.
In view of the above discussion, the accused Sarvesh Pandey is acquitted for the offences under section 420/468/471 IPC.
ANNOUNCED IN THE OPEN COURT (BHAVNA KALIA)
ON 09.04.2014 METROPOLITAN MAGISTRATE06
SOUTH EAST/SAKET COURTS
FIR NO. 657/1992 PAGE 17 OF PAGE 17
PS KALKAJI