Delhi District Court
State vs Kunal Kapoor on 14 August, 2024
IN THE COURT OF Ms. VIJAYSHREE RATHORE, JUDICIAL
MAGISTRATE FIRST CLASS, SOUTH DISTRICT, SAKET
COURTS, DELHI
STATE VS. Kunal Kapoor
FIR No. : 149/2010
PS : Hauz Khas
U/s : 419/420/467/468/471 IPC
JUDGMENT
A. Sl. No. of the Case 2033270/2016 DLST020004342011 B. Date of Commission of offence 26.04.2010 C. Date of FIR 27.04.2010 D. Date of charge-sheet 09.06.2011 E. Name of the complainant Monicka Y Dutt F. Name of the accused persons, their Kunal Kapoor S/o Vinod Kapoor, R/o D-
parentage and residence 64/6, Vasundhra Apartment, Dilshad Garden Delhi.
G. Offence complained of or proved 419/420/467/468/471 IPC
H. Date of framing of charges 16.10.2015
I. Date of commencement of evidence 09.01.2023
J. Plea of the accused Pleaded not guilty
K. Date on which judgment is reserved 26.07.2024
State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas
U/s 419/420/467/468/471 IPC Page no.1 of 24
L. Final Order Conviction
M. Date of Judgment 14.08.2024
Brief facts of the present case
1. The case of the prosecution arises out of complaint dt. 26.04.2010 regarding fraudulent withdrawal of cash from SBI, Shahpur Jat by forged cheque. On 22.04.2010 one person called complainant naming himself as Manish from HDFC Bank and said that HDFC bank is offering zero balance current account with Over Draft facility for business establishment based on last 3 month bank statement. On 23.04.2010 he visited her office and after discussion he collected documents listed at Appx A which he wrote in his own hand writing. He collected one canceled cheque SBI Chequee no. 207663 which according to him was required for signature verification as a normal banking procedure. The cheque was canceled in his presence by Manish using his own pen. Later on, at 05.00 pm same day he called up to say that all papers are clear but since there is negligible balance in account, they must deposit some money upto Rs. 50,000/- in the bank to establish cash credibility. On 24.04.2010 at about 11.30 am she deposited Rs. 40,000/- in her bank and Manish was informed. He confirmed that soft approval have been granted and the representatives for field verification had already left and will complete their formalities before 01.00 pm and he will give the approval by hand by 5 pm. No person visited for State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.2 of 24 verification and when she sent her company person to draw cash from bank, she was shocked to know that one Kunal had already withdrawn Rs. 37,500/- from her account using the same cheque no. 207663 which had been canceled. When she visited bank, she was surprised that the cancellation line drawn across the cheque were not existed. The payee name Kunal and amount Rs. 37,500/- were written in somebody else's handwriting. On the said complaint, the FIR was registerd in the case.
2. During investigation, notice u/ 91 Cr.P.C. was issued to bank Manager, State Bank of India, Asian Village Complex Hauz Khas 118, Shahpur Jat, New Delhi. Original cheque bearig no. 207663 in favor of Kunal for Rs. 37,500/- dt. 23.04.2010 account no. CA30393289396 SBI, Asian Games Village was seized vide seizure memo dt. 30.04.2010. Notice u/s 91 Cr.P.C. was also given for production of bank statement of account CA30393289396 and CCTV footage was also obtained from SBI in the form of CD. On secret information a raid was conducted in the house of accused Kunal Kapoor. He was duly interrogated in regard with the offence and after formal interrogation he confessed commission of crime. He was arrested and his disclosure statement was also recorded. Application for TIP was moved, however he refused to participate in the TIP. During the PC remand magic pen was recovered from the house of accused. CAF details of mobile number 9650418513 was also obtained and seized and CDR was collected. The SIM was State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.3 of 24 issued in the name of Harsimran Kaur and she was also examined who disclosed that accused had also cheated her and had taken photocopy of voter ID, PAN card, one canceled cheque, bank statement, passport size photo etc from her in lieu of opening the account. In this regard she had already filed complaint in PS Rajinder Nagar and the same was also collected. The CAF of mobile no. 9811574548 was also obtained which was found in the name of the accused. In the CCTV footage accused could be seen presenting the cheque and collecting the cash from cashier. Specimen signatures of accused were obtained. FSL report was collected. After completing the investigation, charge-sheet was filed against accused. Cognizance of the same was taken.
Framing of charge
3. After compliance of Section 207 Cr.P.C., vide order dated 16.10.2015 charge were framed against accused Kunal Kapoor for the offence u/s 419/420/467/468/471 IPC to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence
4. In support of its case, the prosecution had examined 9 witnesses. PW1 is Dheeraj Bhargav, PW2 is ASI Ashok Kumar, PW3 is Monika Dutta, PW4 is Insp. Ramesh Kalsan, PW5 is Hanuman Singh Senior Associate SBI, PW6 is Ajay Kumar Bharti State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.4 of 24 Airtel, PW7 is Jai Ram Alternate Nodal Officer Vodafone Idea Ltd, PW8 is Insp. Pawan Yadav, PW9 is Deepti Bhandari Laboratory Assistant RFSL.
5. PW3 Monika Dutta deposed in her testimony that around 13 years ago a person came to her portraying as HDFC Bank Executive as she applied for a loan at HDFC bank. She had further deposed that the said person took cross blank cheque from her. She had further deposed that the person had crossed the cheque using his own pen. On the next day when she went to the Bank she got to know that amount of Rs. 40,000/- had been withdrawn from her account and she gave a written complaint at PS Hauz Khas vide Ex.PW3/A. She had further deposed that she had also stated that the person identified himself as Manish visited her office and asked her to deposit Rs. 50,000/- in her bank account. Rs. 37,500/- were withdrawn using the said blank cheque. The witness had correctly identified the cheque in question as PW3/B.
6. PW1 Dheeraj Bhargav had deposed in his testimony that on 04.06.2011 he was posted as Branch Manager in HDFC Bank, Ansal Arcad, Noida. He had further deposed that he received a call regarding employment of accused Kunal Kapoor and of Manish Sharma. He had further deposed that thereafter he checked the record and gave the reply to IO that accused Kunal Kapoor and Manish Sharma had never worked in their branch as they were not State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.5 of 24 the employee ever in HDFC Noida Branch and his report is Ex.PW1/A.
7. PW2 ASI Ashok Kumar had deposed in his testimony that on 28.04.2010 he was posted as DO at PS Hauz Khas and at 09.30 pm IO Insp. Ramesh Kalsan came to him and gave rukka and thereafter he endorsed the same which is Ex.PW2/A. He had further deposed that he also lodged the FIR on the basis same which is Ex.PW2/B.
8. PW5 Hanuman Singh Senior Associate SBI Asean Games Village had deposed in his testimony that he had brought the statement of account no. 30393289396 from 22.04.2010 to 30.04.2010 which is Ex.PW5/A.
9. PW6 Ajay Kumar Bharti Airtel deposed in his testimony that the mobile no. 9650418513 was issued in the name of Harsimran Kaur by Bharti Airtel Ltd. The call details of said mobile number was provided to IO for the period 22.04.2010 to 28.04.2010 and the call details is Ex.PW6/A. He had further deposed that their company had also provided original CAF form to IO which is Ex.PW6/B.
10. PW7 Jai Ram Alternate Nodal Officer Vodafone Idea Ltd had deposed in his testimony that mobile no. 9811574548 was State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.6 of 24 issued in your name by Vodafone. He had further deposed that the call details alongwith certificate u/s 65B was provided to IO for the period 22.04.2010 to 28.04.2010. The said call detail is Ex.PW7/A and certificate u/s 65B is Ex.PW7/B. He had further deposed that the subscriber detail of said number is Ex.PW7/C.
11. PW9 Deepti Bhandari Laboratory Assistant RFSL had deposed in her testimony that she is working in RFSL since 16.06.2016 with Anurag Sharma. She had further deposed that she had seen him sign on multiple occasions. The witness had correctly identified the signature of Mr. Anurag Sharma on report no. F.S.L. 2011/D-2471 dt. 16.05.2013 Ex.PW9/A.
12. PW4 Insp. Ramesh Kalsan deposed in his testimony that on 28.04.2010 he was posted as ATO at PS Hauz Khas and on that day complaint Ex.PW3/A was marked to him by ACP Hauz Khas and he endorsed the same and sent it to DO for registration of FIR. He had further deposed that after registration of the FIR he started investigation in the case and served notice to SBI Bank, Asean Games VIllage complex, Hauz Khas regarding original cheque. He had further deposed that he received the cheque from the bank and seized the same vide seizure memo Ex.PW4/A. He had further deposed that he also received CCTV footage of the bank and seized the same vide seizure memo Ex.PW4/B. He had further deposed that he recorded the statement of witnesses u/s 161 Cr.P.C.
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U/s 419/420/467/468/471 IPC Page no.7 of 24
13. PW8 Insp. Pawan Yadav deposed in his testimony that on 11.04.2011 he received information that accused can be found at Dilshad Colony. He had further deposed that thereafter on the directions of the SHO a team was formed containing HC Vinay and other police officials and thereafter they went to the spot. He had further deposed that there at an apartment namely Anupam Apartment where they found accused. He had further deposed that upon interrogation accused admitted his involvement in the present case. He had further deposed that thereafter accused was arrested vide arrest memo Ex.PW8/A and personal search was conducted vide Ex.PW8/B. He had further deposed that accused was sent to JC after producing before the concerned Court. He had further deposed that he also recorded disclosure statement of accused vide Ex.PW8/C. He had further deposed that during the custody accused disclosed that he had accomplice namely Jai Pal. He had further deposed that accused Jai Pal was arrested at instance of accused Kunal Kapoor vide arrest memo Ex.PW8/D and personal search was conducted vide Ex.PW8/E. He had further deposed that during the remand at accused's instance a magic pen was recovered and the same was seized vide Ex.PW8/F. The said pen was used during the time of alleged offence. He had further deposed that the Election ID card of accused Jai Pal was seized vide Ex.PW8/G. He had further deposed that a paper containing handwriting of accused was given by complainant and same was seized vide Ex.PW8/H. He had State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.8 of 24 further deposed that the complainant provided with the mobile number of the accused. When the CAF & CDR was obtained of the said mobile number, the same was in the name of Harsimran Kaur, R/o Rajinder Nagar, Delhi. He had further deposed that upon examining Harsimran it came out that a person had taken copy of ID card and a cheque from her alongwith other documents and thereafter misused the said cheque by withdrawing the amount. He had further deposed that the said cheque was taken for the purpose of increasing the over draft facility. He had further deposed that Harsimran Kaur had filed a complaint before PS Rajinder Nagar and the same is Mark A. He had further deposed that during investigation another mobile number of accused came out and when the CAF & CDR of the same was obtained, the same showed address of accused of Lucknow where accused never resided. He had further deposed that handwriting and signature specimen of accused were obtained in the court and same are Ex.PW8/I (colly). He had further deposed that the alleged cheque alongwith the other documents with the aforesaid sample handwriting and signatures were sent to FSL for examination. He had further deposed that he had seized the aforesaid CAF which belonged to Harsimran Kaur vide Ex.PW8/J. He recorded the statement of witnesses. Witness had correctly identified the case property which is Ex.P2.
Statement of accused
State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas
U/s 419/420/467/468/471 IPC Page no.9 of 24
14. The examination of accused u/s 313 r/w 281 Cr.P.C. was recorded in which he stated that this is a false case registered against him. He had never met with complainant Monika Dutta, nor he have withdrawn any amount from the account of complainant and nothing has been recovered from him or from his instance. He is innocent.
15. Accused did not lead defence evidence. Thereafter matter was fixed for final arguments.
16. Final arguments addressed by the Ld. APP for State and Ld. Counsel for accused were heard and case file was perused.
17. It is argued by the Ld. APP for the State that there is sufficient material available against the accused Kunal Kapoor that he impersonated as Manish and he had cheated the complainant. Further he had also forged the cheque no. 207663 provided by the complainant and had withdrawn Rs. 37,500/-. Thus, it is a fit case of conviction.
18. It is argued by Ld. counsel for the accused that initially the matter was settled but quashing could not be filed. Nine witnesses are examined in the case. The complainant had partly turned hostile. The CCTV footage is not proved in the case. The nodal officer of Vodafone Idea ltd had admitted that not a single call State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.10 of 24 was made between the accused and the complainant on the date of incident. He had further argued that the person who prepared the FSL did not come before the Court and the person who came to depose did not have ID or authority while deposition. How can his statement be relied upon. Thus, prosecution has failed ot prove its case.
19. Before proceeding with the appreciation of evidence, I shall deal with the relevant laws involved in the case.
Section 419 IPC reads as, "Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
Section 420 Indian Penal Code deals with Cheating and dishonestly inducing delivery of property. The provision reads as -
"Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
20. Forgery is defined under Section 463 of Indian Penal State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.11 of 24 Code. The section reads as "Whosoever makes any fake document or incorrect electronic record or part of a document with an intention 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 share with property, or to enter into any express or implied contract, or with purpose to commit fraud or that fraud may be accomplished, commits forgery."
In order to constitute forgery, the first essential is that-
a. the accused should have made a false document.
b. And secondly, the false document must be made with an intention to cause harm or injury to the public or to any class of society or to any community.
21. 'False document' is dealt under section 464 IPC. The definition of "false document" is a part of the definition of "forgery". Both must be read together. An analysis of section 464 of Indian Penal Code shows that it divides false documents into three categories:
1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.12 of 24 by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
22. Section 467 IPC provides punishment for 'forgery of valuable security, Will etc'. As per the Section 'Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer 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 or 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."
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23. Section 468 IPC provides punishment for "forgery for the purpose of cheating". As per the Section, "whoever commits forgery intending that the document or electronic record forged shall be used for the purpose of cheating shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine".
24. Section 471 IPC prescribes punishment for 'using forged document'. According to the said section using a forged document as genuine is a cognizable offence. It states that 'whoever fraudulently or dishonestly accepts as the genuine document which he knows or has ground to believe to be a forged document, shall be punished in the corresponding manner as if he had forged such document.'
25. Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.
26. The case of the prosecution is that accused Kunal Kapoor had impersonated himself as Manish from HDFC bank and offered the complainant Monica Dutt for opening zero balance current account with Over Draft facility and he also collected documents of complainant alongwith one SBI cheque no. 207663 State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.14 of 24 which he canceled with magic pen. Further, he also induced complainant to deposit Rs. 50,000/- in his bank to establish cash credibility. On his assurance complainant deposited Rs. 40,000/- out of which Rs. 37,500/- were withdrawn by him by filling his details in the cheque.
27. In this regard complainant had duly corroborated the allegations mentioned in the complaint dt. 26.04.2010. She had specifically deposed that a person came to her portraying as HDFC executive as she had applied for the loan at HDFC bank. The said person had taken a crossed bank cheque from her which he crossed using his own pen. On the next date when she visited the bank, she got to know that amount of Rs. 40,000/- had been withdrawn from her account. She had duly proved her written complaint dt. 26.04.2010 which is Ex.PW3/A. On asking leading question by Ld. APP, the witness had admitted that the said person who identified himself as Manish had visited her office and asked her to deposit Rs. 50,000/- in the bank account. She had also admitted that Rs. 37,500/- were withdrawn using the said blank cheque. She had identified the cheque which she handed over to the person named Manish and the same is Ex.PW3/B and bearing her signature at point A. The version of complainant had remained consistent even in cross-examination that she had handed over cheque Ex.PW3/B to person named Manish. Thus, her version makes it clear that cheque Ex. PW-3/B must handed over by her to the accused for the purpose State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.15 of 24 of opening zero balance saving account and obtaining overdraft facility. Her version also shows that cheque Ex. PW-3/B was merely signed by her, other particulars were not filled by her and the cheque was crossed by accused in her presence. It is also clear from her version that amount of Rs. 37,500/- was withdrawn from her account using cheque Ex.PW3/B.
28. It is the contention of Ld. Counsel for the accused that the complainant had turned partly hostile and therefore her version is unreliable. In this regard, it is worth mentioning that complainant had come to depose before the Court after more than 13 years of incident. Probably, due to the long passage of time and also due to her age, she may not be able to recall each and every minute particulars of the complaint. This cannot be ground for discarding her testimony which is otherwise wholly reliable.
29. In support of the testimony of complainant PW3 Monica Dutt, the bank official from SBI Asian Game Village was summoned in the case. PW5 Hanuman Singh Senior Associate SBI, Asian Game Village had proved the account statement of account no. 30393289396 from 22.04.2010 to 30.04.2010. Perusal of the bank statement Ex.PW5/A shows that amount of Rs. 40,000/- was deposited by complainant in her account of SBI Asian Game Village Complex on 24.04.2010 and subsequent to that vide cheque no. 207663 cash was withdrawn vide cheque no. 6096 as paid to person State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.16 of 24 named "Kunal".
30. Perusal of the cheque Ex.PW3/B shows that in the name of payee "Kunal" is written and the amount of Rs. 37,500/- is written in words and in numeric which appears to be in the same handwriting. The handwriting at point Q1, Q2, Q3 and Q4 are similar and appears to have been written by the same person. However, the signatures in the cheque differs from the writing in other particulars. This corroborates the version of complainant that she had merely signed the cheque in her own handwriting. Other particulars were not filled up by her.
31. Perusal of the cheque Ex.PW3/B further shows that the phone number 9811574548 is mentioned at the backside of the cheque. According to IO PW8 Insp. Pawan Yadav, he obtained the CAF and CDR of the said number which was found in the name of accused Kunal Kapoor. PW7 Jai Ram Alternate Nodal Officer Vodafone Idea Ltd was examined in the case who deposed that mobile number 9811574548 was issued in the name of accused Kunal Kapoor by Vodafone. The call detail record Ex.PW7/A for the period 22.04.2010 to 28.04.2010 is proved in the case. Further, he had also proved the subscriber details of the said number which is Ex.PW7/C. In his cross-examination, PW7 Jai Ram had admitted that the mobile number 9811574548 was deactivated on 24.04.2010. He also admitted that the call details provided by Vodafone Idea Ltd State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.17 of 24 for the period 22.04.2010 to 28.04.2010 was nill. He also admitted that the meaning of "Nil" is "no call was made during the period as per CDR". Though, no call record was found for the period between 22.04.2010 to 28.04.2010 between the complainant and accused, however the fact that the sim bearing no. 9811574548 was issued in the name of accused Kunal and also the fact that the same number is mentioned at the back of cheque Ex.PW3/B and also that the amount of Rs. 37,500/- was debited from complainant's account in the name of accused Kunal, shows that he was involved in the forging of the cheque.
32. PW8 IO Insp. Pawan Yadav had deposed that paper containing handwriting of accused Kunal Kapoor was given by the complainant and same was seized vide Ex.PW8/H. Further, handwriting and specimen signature of accused Kunal Kapoor was obtained in the Court which are Ex.PW8/I and the cheque alongwith other documents and sample signatures and handwriting were sent to FSL for examination. Perusal fo the sample signatures Ex.PW8/I shows that sample handwriting from S1 to S35 were collected by the IO during investigation. In the FSL report Ex.PW9/A it is observed that, "there is no diversion observed between question and specimen writings and signatures and the aforesaid similarities in the writing habit are significant and sufficient and cannot be attributed to accidental co-incidence....". It is also observed in the FSL report that the person who wrote the writings and signatures State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.18 of 24 from S1 to S35 also wrote the question writing and signature from Q1 to Q8. Thus, the FSL report corroborates the fact that the question writings and signatures in cheque Ex.PW3/B is of accused Kunal Kapoor himself as the same is matched with his sample, writings and signatures S1 to S35. It implies that accused Kunal Kapoor had himself filled the details in the cheque Ex.PW3/B.
33. In Murari Lal v. State of M.P., (1980) 1 SCC 704 it was observed by Hon'ble Supreme Court of India that:
"A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.19 of 24 corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the court has to decide in each case on its own merits what weight it should attach to the opinion of the expert."
34. Careful perusal of the FSL report Ex.PW9/A also shows that in the cheque Ex.PW3/B some secret/erased covert writings were observed beneath the existing writings marked Q1 to Q4. It is also observed in the FSL report that beside the marking between Q1 to Q4, other deciphered writings on exhibit marked 'X' could be write as 'canceled' executed diagonally on the exhibit. The testimony of FSL expert PW9 Deepti Bhandari corroborates the fact that 'magic pen' was used by the accused when he took the cheque from the complainant Monica and he canceled the cheque with his own pen and subsequently it was erased and particulars was filled by accused under the head of 'payee, amount in words and number' so as to withdraw Rs. 37,500/- for himself. The magic pen was duly recovered during investigation and was seized vide seizure memo Ex.PW8/F.
35. It is a contention of Ld. counsel for the accused that the FSL report is not reliable as a person who made the FSL report State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.20 of 24 Anurag Sharma is not examined in the case. He further submits that the persons who deposed on his behalf Deepti Bhandari did not had ID or authority for deposition. In this regard, it is worth mentioning that PW-9 Deepti Bhandari had duly identified the signatures of Anurag Sharma, scientific expert on FSL report dt. 16.05.2013. Thought the witness had not prepared the report Ex.PW9/A and she is not aware about the contents thereof but it is significant to mention here that Section 293 Cr.PC is very relevant in this regard. Section 293 provides that reports of scientific experts upon any matter duly submitted to him for examination or analysis and report in course of any proceedings maybe used as evidence in any inquiry, trial or other proceeding. Further Clause 3 of said section provides that when the expert is summoned by the court he can either appear personally or depute any responsible officer working with him to attend the court if the officer is conversant of the fact of the case. The witness had duly identified the signatures of Anurag Sharma and she had worked with her in the FSL Rohini. Thus in all probability she must be accustomed with the signatures of the witness Anurag Sharma. It goes on to prove that the FSL report Ex.PW9/A bears the signature of Anurag Sharma himself and was prepared by Anurag Sharma only. Though she had remained ignorant about the report but the said report is relevant under 293 CrPC and is very much admissible.
36. It is worth mentioning that accused refused to get the State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.21 of 24 TIP conducted in the case. This leads to adverse inference against the accused. Further, while the complainant PW3 Monica was being examined before the court, exemption application was moved on behalf of accused wherein he did not dispute his identity. The fact that the FSL results shows that accused Kunal Kapoor had filled the details/particulars in cheque Ex.PW3/B leads to the conclusion that he was the one who portrayed himself as 'Manish from HDFC' before the complainant and had induced her to open the zero balance saving account with overdraft facility. Further, it also leads to the conclusion that he was the same person to whom complainant had handed over the cheque Ex.PW3/B and he himself canceled the cheque with magic pen.
37. The testimony of PW1 Dheeraj Bhargav shows that IO inquired him regarding the employment of person namely Kunal Kapoor and Manish Sharma. After checking the record, he replied that Kunal Kapoor and Manish Sharma never worked in their branch and they were never employee in HDFC Noida Branch. The very fact that accused Kunal Kapoor portrayed himself as the official of HDFC Bank and had approached the complainant Monica to open the zero balance account with overdraft facility, proves that he had impersonated himself as HDFC official for committing 'cheating'. Further the fact that he had induced complainant to depoist Rs. 40,000/- in her account on the pretext of establishing cash credibility shows his dishonest intention and further the fact that he State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.22 of 24 withdrew Rs. 37,500/- on 24.04.2010 by using the canceled cheque in his favor which was obtained by accused for opening zero balance account and overdraft facility, shows that he had 'cheated' the complainant.
38. The very fact that the accused had initially canceled the cheque bearing no. 207663 with magic pen which was handed over to him for opening the zero balance account and further the fact that accused had filled his own particulars at point Q1 to Q7 in the said cheque for the purpose of withdrawing the amount proves that he had forged the cheque which is also a 'valuable security'. The said cheque was used as genuine for the purpose of cheating.
39. It is well settled that in a criminal trial the burden of proof is on the prosecution to prove its case beyond reasonable doubt. Any contradiction or iota of proof in favour of accused can completely dismantle the case of prosecution. In the present case there are cogent material on record to suggest accused had committed cheating by personation as he misrepresented himself as Manish from HDFC to the complainant. It is also proved that the accused had induced the complainant to deliver the cheque bearing no. 207663 and had dishonestly persuaded her to part with money Rs. 40,000/- and had thereby committed cheating of Rs. 37,500/-. It is also proved in the case that the accused had forged the cheque bearing 207663 by erasing the line made for crossing the cheque State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.23 of 24 and filling the particulars in the cheque in his own handwriting and had used the same as genuine for withdrawing the amount of Rs. 37,500/- from the account of complainant. Allegations against accused are duly proved in the case.
Conclusion & Decision
40. Considering the above discussion and material placed on record, I hold that the prosecution had prove its case against the accused beyond reasonable doubts. Accused Kunal Kapoor is accordingly convicted for offence u/s 419/420/467/468/471 IPC. Accused shall be heard on sentence separately.
Announced in the open court (VIJAYSHREE RAT HORE) In Delhi on 14.08.2024 JMFC-06,SOUTH/SAKET DELHI State Vs. Kunal Kapoor FIR No. : 149/2010 PS Hauz Khas U/s 419/420/467/468/471 IPC Page no.24 of 24