Delhi District Court
State vs Yash Chibber on 15 February, 2013
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 473 OF 1998
POLICE STATION: CHANAKAYA PURI
U/S: 465/471/34 IPC
IN THE MATTER OF
STATE
VS
YASH CHIBBER
(i) Yash Chibber
S/o Mr. Suraj Prakash Chibber
R/o G144, Sector 4, Pushp Vihar, New Delhi
(ii) Vipul Kumar
S/o Mr. Rupender Pratap Gautam
R/o 925, Khair, District Aligarh, UP
At present: C17 G, Railway Colony, Lajpat Nagar
New Address: 37 G, Sector 8, Jasola Vihar, New Delhi
FIR NO.: 473 OF 1998
POLICE STATION: CHANAKAYA PURI
U/S: 465/471/34 IPC 1 of 18
Date of institution:22.01.2003
Date of reserving Judgement/Order:14.02.2013
Date of Pronouncement of Judgement/Order:15.02.2013
Brief statement of reasons for such decision :
1.The case of the prosecution in brief is that the accused Vipul Kumar alongwith co accused Yash Chibber (already declared PO) attempted to cheat the Embassy of Federal Republic of Germany, Chanakaya Puri by applying for business visa to the accused Yash Chibber on the basis of false and fabricated documents. It has been alleged further that it was the accused Vipul Kumar who has forged documents mark X2, X3 & X4 intending that the said documents shall be used for the purpose of cheating. On these allegations, present case was registered against both accused u/s 465/471/34 IPC.
2. After investigations, charge sheet in the matter was filed. Charge for the offences U/s 420/511/34 IPC, 468 IPC and 471 IPC was settled against the accused Vipul Kumar on 31.01.2008 by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3. The accused Yash Chibber was declared PO vide order dated 17.02.2006 passed by my Ld. Predecessor.
4. Thereafter, prosecution has examined as many as 6 witnesses to prove its case.
FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 2 of 18 (i) PW 1 ASI Sukhbir Singh has proved on record the copy of FIR as Ex.
PW 1/A and endorsement on rukka as Ex. Pw 1/B bearing his signatures at point A. In his crossexamination by Sh. R.C. Tiwari, Ld. Defence Counsel, he denied the suggestion that present FIR was anti time and fabricated.
(ii) PW 2 Devak Ram, Senior Scientific Officer (Documents) FSL Rohini deposed in his examination in chief that in this case the documents were received vide letter no. 317/SHO/Chanakaya Puri on 17.06.1999; the questioned documents which were received were marked from Q1 to Q11 and the specimen signatures were marked from S1 to S4 and admitted signatures were marked A1 and A2 of Yash Chibber. The specimen signature's S5 to S12 were of Sh. Vipul Kumar and sample computer print out were mark S13 to S15. He had examined the documents with the help of instruments in his laboratory and he gave his opinion running into 3 pages Ex. PW 2/A each page bearing his signature's at point A; the questioned documents and specimen hand writing which he had examined were Ex. P1 to P15 and Ex. S1 to S12.
In his crossexamination by Sh. Subhash Chand, Ld. Defence Counsel, he admitted that the letter was received from SHO PS Chanakaya Puri, Delhi. He denied the suggestion that he had prepared false report at the instance of SHO PS Chanakaya Puri.
(iii) PW 3 HC Ramesh deposed in his examination in chief that on 22.12.1998, he along with IO SI Manoj Kumar went to German Embassy on getting a DD Entry No. 7A regarding false documents produced by accused / applicant Yash Chibber (Since P.O.). There they met Mr. Jurgen Reinworth, Police Liaison Officer, who handed over a complaint, a passport and other documents alongwith accused to IO. Thereafter, IO prepared the rukka and handed over the same to him for the registration of the FIR. He FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 3 of 18 went to the PS and got the case FIR registered and came back at the spot along with original rukka and copy of FIR and handed over the same to the IO. The accused was arrested and personally searched vide personal search memo Ex. PW 3/A bearing his signature at point A. All the documents were seized from accused Yash Chibber vide memo Ex. PW 3/B bearing his signature at point A; thereafter, a disclosure statement of Yash Chibber was recorded vide Ex. PW 3/C bearing his signature at point A, wherein he has stated that all the forged documents were prepared by Mr. Vipul Kumar. The IO arrested the second accused Vipul Kumar and personally searched on 22.12.1998 vide memo Ex. PW 3/D bearing his signature at point A. Thereafter, the computer of Mr. Vipul was seized vide memo Ex. PW 3/E bearing his signature at point A and a disclosure statement of applicant Vipul Kumar was recorded vide memo Ex. PW 3/F bearing his signature at point A; thereafter, both the accused were brought to the PS Chanakaya Puri. The witness identified the accused Vipul Kumar in the Court; other co accused Yash Chibber was already declared PO.
In his crossexamination by Sh. R.C. Tiwari, Ld. Defence Counsel, he stated that the disclosure statement of accused Yash Chibber was recorded at German Embassy. There were some public persons present there. The signature of the complainant were not taken on the disclosure statement even though he was present there. All the documents related to Yash Chibber were prepared outside the German Embassy and he was arrested on the spot. PW 3 denied the suggestion that accused Yash Chibber did not give any disclosure statement and signature of accused Yash Chibber were taken on blank paper. He deposed that he could not recollect how many persons were present at 174, Defence Colony, Flyover Market, Defence Colony. However, 34 persons were present there. IO inquired about the owner of shop no. 174. He could not remember what answer was given in respect of ownership of the said shop. He could not say whether that shop was owned by Mr. Vipul Kumar. He could not remember whether IO asked the witness of the seizure memo of the computer. The disclosure statement of accused Vipul FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 4 of 18 Kumar was recorded at his shop. He could not remember whether IO had asked any person to be the witness of the disclosure statement of accused Vipul Kumar. He admitted that 34 persons were present in the shop at that time. The accused Vipul Kumar was arrested on the spot. He further admitted that no public person were the witness of the arrest of the accused Vipul Kumar. He doesn't knew whether IO enquired about the ownership of the computer and whether the shop and computer belonged to Mr. J.S. Rawat or not. Pw 3 denied the suggestion that accused Vipul Kumar was falsely implicated in this case or that accused Vipul Kumar has not given disclosure statement nor any computer was recovered at his instance.
(iv) PW 4 Satendra Singh deposed in his examination in chief that he had seen letters Ex. PW 4/A, 4/B and 4/C and he said that same were not bearing signatures of his sister namely Raminder Abrol at points Q2, Q5 and Q8.
In his crossexamination by Sh. R.C. Tiwari, Ld. Defence Counsel, he deposed that he had given his statement to the police in this regard; he could not remember whether he had seen Ex. PW 4/A to Ex. PW 4/C before the Police, probably one of them was shown to him when his statement was recorded by the police at the first place. He further deposed that he does not remember which document was shown to him by the police. He admitted that he had no original signatures of his sister as on date or on the date when police interrogated him. He denied the suggestion that he does not know about the signatures of his sister or that he is deposing falsely on the instance of IO or that he had no personal knowledge of his sister's signatures.
(v) PW 5 Smt. Aparna Gautam deposed in her examination in chief that she was the Director of M/s SIM Travels Pvt. Ltd and she is the superdar of the case property i.e. computer; she got the same released from the Court on superdari vide superdiginama Ex. PW 5/A bearing her signature at point A. She produced the case FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 5 of 18 property in the Court as Ex. P1.
In her crossexamination by Ld. APP for State, she admitted that she had given mark S13 to S15 later Ex. PW 5/B, C and D to the IO at his request, which are bearing her signatures at point A respectively. She further deposed that Ex. PW 5/B to 5/C were sized by the IO vide seizure memo Ex. PW 5/E bearing her signatures at point A. In her crossexamination by Sh. R.C. Tiwari, Ld. Defence Counsel, he deposed that Ex. PW 5/E was not read over to her, while she signed the same. She further deposed that she does not remember where Ex. PW 5/B to 5/D were prepared. Even, she could not remember from whose printer the print outs of Ex. PW 5/B to 5/D were taken. She further deposed that the case property i.e. computer Ex. P1 was not seized in her presence. She admitted that she does not know what document Ex. PW 5/B to 5/D relates, however, she signed the same on instructions of IO. She admitted that she had not seen accused Yash Chibber visiting her office i.e at 174, Flyover Market, Defence Colony. She further deposed that Mr. Vipul was not working in her office, hence, she does not have any documents pertaining to Mr. Vipul. She had her office in partnership with Mr. Jeet Singh Rawat. She further deposed that at the time of seizing of case property, Mr. Jeet Singh Rawat was also one of the Director of their company and 34 persons were working in their company.
(vi) PW 6 Inspector Manoj Kumar deposed in his examination in chief that on 22.12.1998 on receiving of DD No. 7A, he along with Ct. Ramesh went to Visa Section of German Embassy, Chanakaya Puri, Delhi where they met Mr. Jurgen Reinwarth, Police Liaison Officer, who handed over to him one complaint already mark X along with one passport of Mr. Yash Chibber, two visa application forms and some other supporting documents. Complainant also handed over to him the accused Yash Chibber. He further deposed that on this complaint he prepared a rukka already Ex. PW FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 6 of 18 1/B bearing his signatures at point B and got the case registered through Ct. Ramesh. Ct. Ramesh after registration of the case came back at the spot and handed over to him original rukka and copy of FIR. He further deposed that he interrogated the accused Yash Chibber and arrested him vide memo Ex. PW 6/A bearing his signature at point A. The PSM of accused was already Ex. PW 3/A bearing his signature at point B. The disclosure statement of accused Yash Chibber was recorded as Ex. PW 3/C bearing his signature at point B. For further investigation, he reached office of M/s SIM Travels, shop No. 174, Defence Colony Flyover market, Delhi, where coaccused Vipul Kumar met him, who was correctly identified by the accused Yash Chibber. He identified the accused Vipul Kumar in the Court and accused Yash Chibber was P.O. He also interrogated accused Vipul Kumar, who on interrogation admitted his guilt. Thereafter, he arrested him vide memo Ex. PW 6/B bearing his signatures at point A. PSM of accused Vipul Kumar was already Ex. PW 3/D bearing his signatures at point B. Disclosure statement of accused Vipul Kumar was recorded by him Ex. 3/F bearing his signatures at point B. Thereafter, on pointing out of accused Vipul Kumar, he seized the articles vide memo already Ex. PW 3/E bearing his signatures at point B. On pointing out of accused Vipul Kumar, he searched abovesaid office of M/s SIM Travels and seized documents vide memo Ex. PW 3/B bearing his signatures at point B. The specimen signature / handwriting of accused Yash Chhibber and Vipul Kumar were taken on 22.12.1998 by him which was Ex. PW6/C (colly) from S1 to S12 bearing his signature's at point A on each page. The specimen signature's along with questioned document's were sent to FSL. After completion of the investigation, the charge sheet was prepared and submitted in the Court.
In his cross examination by Ld. Defence Counsel, he admitted that the present charge sheet was filed U/s 465, 471 and 34 IPC. He denied the suggestion that the charge sheet was filed beyond limitation period.
He admitted that he has not taken permission to get the specimen signature FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 7 of 18 of the accused Vipul kumar from the court. He admitted that no public person was joined at the time of taking the specimen signature or at the time of arrest of the accused or at the time of the disclosure statement of the accused and seizure memo prepared by me. The specimen signatures were taken of the accused Vipul Kumar when he was in custody. When he reached in the office of the SIM travels only accused Vipual Kumar was present there. The Director of the SIM travels was Arpana Gautam. Accused was not owner of that shop. He tried to call for the owner of the shop however, nobody came forward. He admitted that there were shops near SIM travels but most of the shops were closed. He tried to ask four or five persons but none joined the investigation. He could not remember whether he disclosed this fact and he called three four person's to join the investigation but none of them agreed. He denied the suggestion that the accused has been falsely implicated in this case or no specimen signatures were taken of the accused and no disclosure statement has been recovered from the accused.
5. No other witness was examined in PE and PE hence, was closed and the matter was fixed for statement of accused u/s 313 Cr. PC.
6. Statement of accused Vipul Kumar u/s 313 Cr. PC was recorded separately wherein he denied that on 21.12.1998 at Embassy of Federal Republic of Germany, Chanakaya Puri, he alongwith co accused Yash Chibber attempted to cheat the said Embassy for procuring business visa for Yash Chibber on the basis of false and fabricated documents and prepared the forged documents and subsequently used the said documents for the purpose of cheating. He stated that it was a matter of record that PW 1 ASI Sukhbir Singh proved FIR Ex. PW 1/A and the endorsement Ex. PW 1/B. He denied that PW 2 Mr. Devak Ram, Senior Scientific Officer proved the FSL examination report Ex. PW 2/A. His signatures have not been obtained. In reply to the question put to him that PW 3 HC Ramesh proved the personal search memo Ex. PW 3/D, seizure memo of FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 8 of 18 computer of Mr. Vipul vide memo Ex. PW 3/E and the disclosure statement Ex. PW 3/F, he stated that he has been falsely implicated in this case. He denied that PW Satender Singh proved the letter Ex. PW 4/A, PW 4/B and Ex.PW4/C. He further stated that he does not know that PW 5 Ms. Aparna Gautam proved the superdarignama Ex. PW 5/A, case property Ex. P 1, specimen writing S13 to S15 which was Ex. PW 5/B, Ex. PW 5/C and Ex. PW 5/D and the seizure memo Ex. PW 5/E. In reply to the question put to him that PW 6 Inspector Manoj Kumar proved the arrest memo Ex. PW 6/B, he stated that he has been falsely arrested in the present case. He further stated that he has been falsely implicated in this case. He has not given any specimen signatures, disclosure statement etc. IO to save main accused Yash Chibber implicated him. He stated that witnesses who have deposed against him were interested witnesses. He declined to lead DE and DE hence was closed. Thereafter the matter was posted for Final arguments.
7. I have heard final arguments on behalf of parties and perused the record. Before appreciating the evidence coming up on record, I find it relevant to refer here the provisions for the offences, which the accused has been charged with. Section 420 IPC Provides:
Cheating and dishonestly inducing delivery of property: 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. Section 468 IPC Provides:
Forgery for purpose of cheating: Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 9 of 18 shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]: Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]. Section 511 IPC Provides:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, an in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
8. The FIR in the present case was registered on a complaint lodged by Mr. Jurgen Reinwarth, Police Liaison Officer in the Embassy of Federal Republic of Germany dated 21.12.1998. It was alleged that the accused Yash Chibber applied at the Embassy for a business visa for Germany alongwith his application he presented a telefaxinvitation allegedly sent by one German Company Mode Parlour, Imotex Centre, Raum 221/223, Breslauer Str. 8, 41460 Neuss/Germany on 10.12.1998 and signed by Ms. Cornelia Schneider. It was alleged by the complainant that the telefax message was a complete fake as per investigations carried out by police of Dusseldorf on 18.12.1998. The said company FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 10 of 18 does not exist and the telephone/telefax numbers on the fax form does not exist. It was further alleged that the application on 16.12.1998 was made instead of a previous application dated 22.09.1998 for which, the business visa had been granted. In this application, a telefax invitation from Mode Parlour in Neuss was found which was a fake document. The passport with the number A 5884635 against visa with the number 11964459 was allegedly lost. It was alleged that there was possibility that the passport has been misused by somebody else for the purpose of illegally going to Germany. The said passport was put in black list in Germany. It was further alleged that the accused Yash Chibber was trying to obtain a business visa for Germany fraudulently and hence the present complaint has been filed to this effect. The accused Yash Chibber was declared PO by my Ld. Predecessor vide order dated 17.02.2006.
9. The prosecution to bring home conviction against accused has to proved that the accused Vipul Kumar forged the documents which were allegedly annexed with visa application form filed by the co accused Yash Chibber. To prove the same, two material witnesses have been examined by prosecution. One PW 4 Satendra Singh and other is PW 6 Inspector Manoj Kumar (IO). The IO has deposed that the specimen signature / handwriting of accused Yash Chhibber and Vipul Kumar were taken on 22.12.1998 by him which was Ex. PW6/C (colly) from S1 to S12. He further stated that specimen signature's alongwith questioned document were sent to FSL.
In his cross examination, he categorically stated that he has not taken permission from the Court to get the specimen signature of the accused Vipul kumar. No public person was joined at the time of taking the specimen signature or at the time of arrest of the accused or at the time of recording of disclosure statement of accused and preparation of seizure memo. He admitted that the specimen signature's of accused Vipul Kumar were taken when he was in custody. He denied the suggestion that no specimen FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 11 of 18 signatures of accused were taken and no disclosure statement has been recorded from the accused.
10. On perusal of record, it is found that no expert has been examined from FSL by prosecution, however, FSL result dated 31.10.2002 was produced on record as Ex. PW 2/A. As per the said report, the person who wrote the red enclosed signature's stamped and marked S5 to S8 which were specimen signature's of accused Vipul Kumar also wrote the red enclosed signature's similarly stamped marked Q 2, Q 5 & Q 8 which were signature's of Ms. Raminder Abrol on the letter head of White Arrow Leathers Pvt. Ltd. Ex. PW 4/A. The mark 'Q5' is signature's of Raminder Abrol on letter head of White Arrow Leathers Pvt. Ltd. dated 21.09.98 Ex. PW 4/B. The mark 'Q8' is the signature's of Raminder Abrol on the letter head of White Arrow Leathers Pvt. Ltd. dated 05.10.98 Ex. PW 4/C.
11. It was reported that on copy of the fax signature's marked Q4, Q6, Q9 & Q11 which were signature's on copies of certain letters written on behalf of 'Cornelia Schneider' from 'Mode Parlour' to accused Yash Chibber, it was not possible to express any opinion being of poor quality. Hence, it has come up on record that signature's on the forged documents which were alleged in the main complaint filed by the complainant namely Mr. Jurgen Reinwarth, Police Liaison Officer were not of the accused Vipul Kumar. The signature's on the other documents allegedly written on behalf of Raminder Abrol matched with the specimen signature's of accused Vipul Kumar. The said Ms. Raminder Abrol however was never examined by the prosecution to prove that the accused Vipul Kumar has forged the documents by signing himself on the same. In this regard, I also agree to the arguments advanced on behalf of defence Counsel that the FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 12 of 18 specimen signature's of the accused Vipul Kumar were taken by the IO without seeking permission from the Court. The expert's opinion does not favour the case of the prosecution as far as the fax letter written on behalf of Ms. Cornelia Schneider dated 10.12.1998 is concerned as was alleged in the main complaint to be a forged document. Further, PW 4 in his examination in chief stated that Ex. PW 4/A, Ex. PW 4/B & Ex. PW 4/C were not bearing the signature's of his sister Ms. Raminder Abrol at Q2, Q 5 & Q 8 but in his cross examination, he stated that he does not remember whether he has shown Ex. PW 4/A to Ex. PW 4/C by the police officials to identify the signature's of her sister. He further deposed that he does not remember which document was shown to him by the police. He admitted that he had no original signatures of his sister as on date or on the date when police interrogated him or on date of his examination in the Court. The testimony of witness is hence not trustworthy. Despite ample opportunities being given to prosecution, Raminder Abrol was not examined by prosecution who could have identified her signature's on the said documents.
12. The opinion of the handwriting expert cannot be made sole basis for conviction without corroboration as per the law laid down by the Hon'ble Supreme Court as the experts opinion was considered to be a weak piece of evidence. Furthermore, specimen signatures and handwriting of accused have been obtained by the IO without permission of the Court. In this regard, reliance can be placed on the Judgment passed by the Hon'ble Supreme Court in Sukhvinder Singh's case, 1994 Supreme Court Cases (Cri) 1376 and that by the Hon'ble Delhi High Court in Rakesh Kumar's Case, 2004 (1) JCC 111. Relying upon the judgment pronounced by the Hon'ble Supreme Court in Sukhvinder Singh's case, the Hon'ble Delhi High Court in Rakesh Kumar's case held as follows:
17. "Moreover, the alleged specimen FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 13 of 18 signatures / handwriting / thumb / finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the IO without prior permission from the Court. Facts in the case of Sukhvinder Singh and others Vs. State of Punjab (1994) 5 SCC 152, were that specimen handwriting of the appellant were taken under the directions of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused persons did not raise any objection thereto yet "Hon'ble Supreme Court observed that such specimen writing of the accused person 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 footing 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 handwriting expert / finger print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime."
FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 14 of 18
13. Furthermore, it is settled proposition of law that expert's opinion is not a conclusive proof of the validity of the handwriting or document in question in the absence of any independent corroboration. The report of handwriting expert is not included in the list of documents which can be accepted as valid evidence without examining the author as per the scheme of Section 293 Cr. PC. Even otherwise, the said specimen handwriting of the petitioner was obtained without the permission of the Court by the investigating agency. In Ram Chandra v. State of Uttar Pradesh AIR (1957) SC 381, 388, it was observed that "the expert evidence as to handwriting is 'opinion evidence' and it can rarely, if ever, take the place of substantive evidence. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR (1964) SC 529 it was observed that acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence." In State of Gujarat v. Vinaya Chandra Chhota Lal Pathi Criminal Appeal No. 43 of 1964, it was held that "a court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in certain document merely on the basis of comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of Section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not." Hence, I am in agreement with the contention of the learned Counsel for the petitioner that the learned ASJ has gravely erred in not appreciating the fact that the opinion of an expert under Section 45 of the Indian Evidence Act is merely an opinion and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration.
FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 15 of 18
14. In view of the aforesaid hence I am satisfied that FSL report produced on record in the absence of the complainant and without any other corroboration is thus rendered of no consequence and cannot be used against the accused.
15. IO has admitted that no independent witness was arrayed while arrest of the accused or during the recording of disclosure statement of the accused or while taking the specimen signature's and writings of accused. Same creates doubt as PW 3 deposed that 34 persons were present at that time. Counsel for accused has also relied upon Judgement passed by the Hon'ble High Court in case Varender Kumar Vs State 2010 (2) JCC 950 in regard to non joining of independent witnesses.
16. Counsel for accused has also argued that the cognizance of the offences in the matter could have not been taken being filed beyond limitation and barred u/s 468 Cr. PC, however, vide order dated 17.08.2006, my Ld. Predecessor has already decided the said issue. In these circumstances, I do not find any need to reconsider the same at this stage.
17. The prosecution however has failed to examine the complainant despite ample opportunities for the same being given. Process to the complainant was repeatedly received back with the report that he has left the Country and would not be able to depose in the court. In the absence of the complainant, hence, the original complaint filed on record remains unproved. The factum of presentation of alleged forged document remains unproved. In the absence of the complainant, there is no linking evidence produced on record to connect the accused with the alleged offence's. It was the complainant only who could have proved on record that it was the accused who presented the alleged document before him.
FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 16 of 18
18. The genesis and origin of the prosecution case is hence, falsified and unreliable. The seizure memo produced on record does not mention that the said document's were handed over to the IO by complainant nor does it bear his signatures as a witness, the same discredits the correctness and genuineness of the complaint as well as the seizure memo of the documents. It is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference has to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution. Further, in the absence of the complainant, the testimony of other witnesses is all hearsay and in the circumstances of the present case, it is insufficient to prove guilt of the accused and cannot be relied upon to upheld conviction.
19. In the absence of the complainant further the testimony of all other PWs is only hearsay. The non examination of complainant discredits the correctness and genuineness of the complaint as well as the seizure memo of the documents. As already observed, non examination of material witnesses adversely effects the case of the prosecution and an inference can be drawn against the prosecution in the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the prosecution. The prosecution having failed to produce the material witnesses it calls for an adverse inference against the prosecution case. Non production of the material witnesses certainly introduce infirmity in the prosecution case.
20. Taking into consideration the entire facts and circumstances and in the absence of complainant deposition of all hearsay witnesses in the circumstances of the present case is insufficient to prove the guilt of the accused and cannot be relied upon to FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 17 of 18 upheld conviction. None of the witnesses has deposed anything which can prove any criminal act on the part of the accused. Accused Vipul Kumar hence stands acquitted. His bail bond stands cancelled. His surety stands discharged.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 15th February, 2013 ) METROPOLITAN MAGISTRATE This Judgment contains 18 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 473 OF 1998 POLICE STATION: CHANAKAYA PURI U/S: 465/471/34 IPC 18 of 18