Delhi District Court
State vs . Aditya Chand Mathur on 26 April, 2012
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(SOUTH EAST)-03, NEW DELHI
STATE VS. Aditya Chand Mathur
FIR NO: 336/90
P. S. Kalkaji
ID No. 02403R0219742002
Date of institution of case : 27.08.1992
Date on which case reserved for judgment : 16.04.2012
Date of judgment : 26.04.2012
Advocates appearing in the case :-
Sh. Manish Kumar, Ld. APP for State
Sh. Deepak Chaudhary, counsel for accused
JUDGEMENT U/S 355 Cr.P.C.:
a) Date of offence : 09.10.1990
b) Offence complained of : U/s 380/420/468 and 471 IPC
c) Name of complainant : Sh. Yogesh Giri
d) Name of accused, his parentage,: Aditya Chand Mathur
local & permanent residence S/o Sh. Raghuwansh Chand
Mathur R/o H.No. H-20,
Arjun Nagar, New Delhi
e) Plea of accused : He is falsely implicated.
f) Final order : He is acquitted
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. In the present case, accused Aditya Chand Mathur has been charged for offences u/s 380/420/468 and 471 IPC on the ground that on or before 09.10.1990 from office of HCL Ltd., 1996, Nehru Place, within jurisdiction of PS Kalkaji, he committed theft of two cheques bearing no. 761272 and FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 1/16 761273 from cheque book bearing serial numbers 761201 to 761300 belonging to HCL Ltd. and on 31.08.1990, he cheated the company HCL Ltd. by receiving a cheque of Rs. 1010/- in favour of Bhanu Bharti Arora informing the company that Bhanu Bharti Arora i.e. the other employee of the company was sick and accused would deliver the cheque him but later on he got the encashed the said cheque by opening a fake account in Indian Bank, Nehru Place on 05.09.1990 in name of Bhanu Bharti Arora and on 06.10.1990, accused fraudulently and dishonestly forged and used the forged cheques no. 761272 and 761273 as genuine for sum of Rs. 5,18,440/- and Rs. 2,73,760/- respectively knowing or having reason to believe that the said cheques were obtained by theft and they belonged to HCL Ltd.
2. PW1 is Smt. Rita Sharma, HCL account Executive. She stated that she joined HCL as Jr. Accountant in year 1987 and she used to fill the salary cheques and distribute them among the employees. She stated that Sh. Aditya Shiv Mathur and Bhanu Bharti Arora had joined their office on temporary basis for training and their salary was paid every month by cheque and on 02.09.1990, Sh. Aditya Chand Mathur received cheque of his salary for month of August and told her that Sh. Bhanu Bharti Arora left the service, therefore, she mentioned "left" on the back of the cheque and the salary statement of Bhanu Bharti Arora. She further stated that after some days, accused Aditya Chand Mathur came to her office and informed that Sh. Bhanu Bharti Arora is seriously ill and in need of money and his salary cheque may be given to accused, so she trusted the accused and handed him over the cheque of Sh.
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Bhanu Bharti Arora and got the sign of accused on the salary statement of Sh. Bhanu Bharti Arora and struck out the word "left". She further stated that usually they do not take the signature on salary statement from the persons receiving the same, but in this case, cheque was given to Sh. Aditya Chand Mathur in place of Sh. Bhanu Bharti Arora, therefore signature of accused were taken. She exhibited the cheque as Ex.PW1/A and the salary statement bearing sign of accused at point Mark-X as Ex.PW1/B. She correctly identified the accused in court. Opportunity of cross examination was given to accused and treated as nil on 19.08.1997.
3. PW2 is Sh. Kulbhushan, Sr. Manager (Accounts), HCL Ltd. He stated that on 09.10.1990, two cheques of the company were stolen. Immediately, they informed the Sr. Manager and search for cheques was made but they could not be found, so they went to the bank and they were shocked to see that cheques were presented for encashment. Thereafter, they immediately went to police station and informed the police. PW2 stated that he told to police that the company used to employ OJTs (on job trainees). He further stated that in his presence, Neelam Grover, Regional Manager gave specimen signatures. He also stated that police also obtained specimen signatures of PW2 himself and R.P. Singh. He stated that Bhanu Bharti Arora was an OJT from 13.06.1990 to August 1990 and he was not working at the time of incident. He further stated that accused (correctly identified in court) was also employed in OJT capacity from June 1990 to December 1990. He further stated that two cheques in the name of Bhanu Bharti Arora dated 01.10.1990 FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 3/16 having amount of Rs. 518,440/- and Rs. 273,760/- are Ex.P-1 and Ex.P-2. He was duly cross examined and discharged.
4. PW3 is Sh. Virender Pasricha who stated that in year 1990-91, he was working as Sr. Accounts (Executive) in HCL Ltd. and had verified / attested the specimen signatures of Sh. Kulbhushan in police station in presence of police as the two cheques 761272 and 761273 were carrying forged signatures of Kulbhushan. He exhibited the documents of specimen signature of Kulbhushan as Ex.PW3/A. He was also cross examined and discharged.
5. PW4 is Sh. D.P. Arora, father of Sh. Bhanu Bharti Arora who stated that on 10.12.1990, he alongwith his son Bhanu Bharti Arora went to PS Kalkaji. He further stated that as per his knowledge, his son worked in HCL on contractual basis and was paid upto 31.07.1990 and did not attend HCL thereafter and it was only on 10.12.1990, that they came to know about this case. He stated that his son was paid uptill 31.07.1990 and question of further payment does not arise. He further stated that his son had no account in any of the banks in Nehru Place. He was questioned on material aspects by Ld. APP with permission of court and he denied the suggestion that he went to Indian Bank on 30.08.1991 with police and he further denied that police had recorded his statement on 31.08.1991.
6. PW5 is Inspector Virender Kumar who stated that he had just prepared the challan formally and presented the same to court. PW6 is Sh.
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Maninder Singh, Sr. Manager, Indian Bank who stated that in year 1990, he was posted at Indian Bank, Nehru Place and HCL Company was operating current account with them and salary of their employees was distributed through their bank branch. He stated that one saving account was opened in the bank in name of Bhanu Bharti Arora and a fraud was tried to be committed by showing big amount cheques issued from HCL Company to be paid to Bhanu Bharti Arora. He stated that the person who brought the cheques was detected by one Ravi Shankar and he does not remember anything else. Ld. APP cross-examined him on material aspects with permission of court and he admitted that police had seized two saving bank account challans of account no. 8661 for Rs. 5,18,440/- and Rs. 2,73,760/-, three cheques no. 761184, 761272 and 761273 for Rs. 1010/-, Rs. 5,18,440/- and Rs. 2,73,760/- drawn by HCL Company Ltd. account no. 1096, favouring Bhanu Bharti Arora Savings Bank original sheet account no. 8661, opening card for saving bank account no. 8587 of Aditya with photocopy of ledger sheet. He exhibited the seizure memo of these documents as Ex.PW6/A having his signatures at point A. He exhibited the ledger sheet photocopy of account no. 8587 of Aditya as Mark-X1 and Mark- X2 and the account opening form of Bhanu Bharti Arora as Ex.PW6/B and account opening form of Aditya Mathur as Ex.PW6/C and the saving account original ledger sheet of account no. 8661 as Ex.PW6/D. Cheque no. 761272 for Rs. 5,18,440/- was exhibited as Ex.P-1 and cheque no. 761273 for Rs. 2,73,760/- was exhibited as Ex.P-2 and cheque no. 761184 for Rs. 1010/- was exhibited as Ex.PW1/A. He also exhibited the deposit challans for amount of Rs. 5,18,440/- and Rs. 2,73,760/- of account no. 8661 as Ex.PW6/E and FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 5/16 Ex.PW6/F. He stated that he could not recall these facts since the incident was 12 years old and he had forgotten these facts due to lapse of memory. In his cross-examination by Ld. Defence Counsel, he admitted that cheques for amount of Rs. Rs. 5,18,440/- and Rs. 2,73,760/- are not shown in the saving bank ledger sheet Ex.PW6/D of account no. 8661. He voluntaried that the officer sitting in the current account did not pass the cheques since the third signatures were not there on the cheques of HCL company and though the initials were marked the full signature was not present, so the cheques were never credited to the account. He further stated that he had not detected this fact and the fact was detected by Mr. Ravi Shankar.
7. PW7 is Sh. Bhanu Bharti Arora who stated that he had contractual agreement with HCL Ltd. from 13.06.1990 to 31.07.1990 and he left the company after 31.07.1990 and never attended the office. He stated that in October, two persons came from the office and asked if he had drawn salary for the month of August and he informed that he had not done so. They also inquired whether he had opened account in Indian Bank, Nehru Place where the company had account, but he told them that he never visited the office of company again and he had never opened any account in the bank branch in which account of company was being operated. He stated that they informed him that money had been drawn from the bank and he told them that he did not know anything about it. In his cross-examination by Ld. Defence Counsel, he stated that he had already received his salary for the contract period and there were no dues towards the company.
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8. PW8 is Sh. Raghubansh Chand Mathur who stated that specimen signature and hand writing of accused Aditya were taken in his presence, which is Ex.S-10 and signed by him at point-X. He stated that Aditya was directed to write block capital letters as per the specimen shown. In his cross- examination, he stated that accused had not given his specimen hand writing by his own free will and it was as per dictate of IO.
9. PW9 is Sh. Ravi Shankar, Manager of Indian Bank who stated that on 01.03.1990, he joined Nehru Place Branch of Indian Bank as officer and in the year 1990, he was working as officer incharge of CA/CC/OD Section in the said branch. He stated that he does not remember the exact date when two cheques were presented by some person whose name he does not remember. He stated that he still remembers the cheques were submitted by that person for transferring for a total amount of Rs. 7 lacs in another savings bank account in the same branch. He further stated that cheques were purportedly issued by HCL Ltd. but they were not properly signed, hence he asked the person to get the cheques signed again. He further stated that he got suspicion on that person as the amount was very large, hence he referred the matter to HCL Ltd. company to verify whether cheques were genuinely drawn or not. He stated that the HCL Company employees told him that cheques were lost and they should not make the payment. He further stated that the person did not turn up again. He stated that he can not identify that person due to lapse of time. The Ld. APP cross examined PW9 on material particulars and his statement u/s 161 Cr.P.C. from Mark-A to Mark-B dated 06.09.1991 was read over and explained FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 7/16 to the witness and thereafter, the witness admitted that it is correct that on the date of incident, two cheques numbers 761272 for Rs. 5,18,440/- and cheque no. 761273 for Rs. 2,73,760/- were presented by a person namely Aditya Chand Mathur who was employee of HCL. He further admitted that the presented cheques carried signatures of two officers of HCL and as per his knowledge, the cheques for large amount should have been signed by three officers and the presentor of cheques was directed to obtain signatures of third officer. He further admitted that on 08.10.1990, the presentor again came to the bank with signature of third officer and he got suspicious but in the meantime, the presentor Aditya Chand Mathur ran away from the bank. He admitted that he had identified the presentor Aditya Chand Mathur. He was again asked to identify the accused / presentor of the cheque, but he stated that he is not very sure about the identity of accused and he may be the person who had presented the cheques. PW9 correctly identified the cheques already Ex.P-1 and Ex.P-2 and Ex.PW1/A. In his cross- examination by Defence Counsel, he admitted that he had not signed the seizure memo of cheques in question. He stated that he does not remember whether any application for stop payment of these cheques was given to the bank by HCL. He further stated that he does not remember whether he had given any receipt to the accused after receiving the cheques. He denied the suggestion that accused was falsely implicated in this case in collusion with Bhanu Pratap and HCL.
10. PW10 is HC Babu Lal who stated that on 22.08.1991, he joined investigation of present case with SI Umed Singh and accused Aditya Chand FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 8/16 Mathur was arrested in his presence and personal search was conducted by IO vide memo Ex.PW10/A. He stated that specimen hand writing of accused was obtained by SI Umed Singh in his presence and he signed on point X at Ex.S-7, Ex.S-9 and Ex.S-10.
11. PW11 is retired ASI Suresh Chand who stated that on 04.10.1990, he was posted at PP Nehru Place and one Yogesh Giri, Personal Manager of HCL Ltd. came to him with typed complaint and he made endorsement Ex.PW11/A and got FIR registered through Ct. Lekh Raj and recorded the statement of witnesses and made efforts to trace the accused, but could not trace him and thereafter, further investigation was handed to second IO.
12. PW12 is Ct. Devi Ram who stated that in year 1991, IO recorded hand writing of one Sudhir Kalra on Ex.S-4, Ex.S-5 and Ex.S-6 in his presence.
13. After closure of PE, statement of accused u/s 313 Cr.P.C. was recorded. Accused did not lead any defence evidence, hence final arguments were heard on last date and case was kept for order for today itself. BRIEF REASONS FOR DECISION AND DECISION THEREOF:
During cross-examination, the Ld. Defence Counsel argued that perusal of original complaint of complainant Yogesh Giri reveals that accused had attempted to encash the amount of Rs. 5,18,440/- and Rs. 2,73,760/- by opening account in name of Bhanu Bharti Arora, but the amount was never FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 9/16 encashed. The Defence Counsel further argued that offence u/s 380 IPC is not made out against accused since perusal of evidence of all the witnesses reveals that neither there was any eye-witness of offence of theft nor the recovery of cheques was made from accused Aditya Chand Mathur. Moreover, the complainant Yogesh Giri was never examined by the prosecution and crucial right of cross- examination of complainant by accused has been hampered.
In regard to offence of forgery, the Ld. Defence Counsel argued that accused Aditya Chand Mathur has been charged for opening fake account in name of Bhanu Bharti Arora by forging the hand writing and signatures of Bhanu Bharti Arora on the account opening form but the report of hand writing expert is only an opinion and it can not be relied upon in absence of examination of the hand writing expert in court. The Defence Counsel argued that prosecution has failed to produce the hand writing expert in witness box and failed to examine him and thus the crucial right of accused of cross examination of the hand writing expert has been hampered and this has caused grave prejudice to accused. Moreover, the Defence Counsel argued that mere perusal of report of hand writing expert reveals at para-V, page no. 4 of the report, that the hand writing evidence points to the writer of standard English hand writing Mark-S7 to Mark-S10 and A-1, A-2 being the person responsible for writing the questioned hand writing mark-Q1, Q2 and Q5 to Q8. The Ld. Defence Counsel argued that even the hand writing expert in his report has just given an opinion that hand writing evidences points to the writer but the FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 10/16 hand writing expert has not given any definite opinion whether it was accused only who wrote the writings mark-Q1, Q2 and Q5 to Q8. Therefore, the Defence Counsel argued that this could not have been clarified in absence of examination of the hand writing expert in court.
Defence Counsel further argued that the material public witnesses namely Neelam Dhawan and Sh. R.P. Singh whose signatures are present on the impugned cheques and whose samples signatures were taken by the IO during investigation and sent to FSL, have never been examined in court by the prosecution and further prejudice has been caused to accused by their non examination. Defence Counsel also argued that PW8 Sh. Raghbansh Chand Mathur had categorically admitted in his cross examination that accused had not given his specimen hand writing by his own free will and it was on the dictate of IO. Hence, the Defence Counsel argued that the very manner of obtaining the sample hand writing of accused by IO is shrouded in doubt and suspicion that the accused was compelled by the IO by coercion or threat to give the sample signatures and hand writings.
Defence Counsel brought the attention of the court to list of OJT employees of HCL which is Ex.PW1/B and pointed out that the name of co- employee Bhanu Bharti Arora is mentioned at serial no. 11 of the list and against his name, cheque no. 761184 dated 31.08.1990 for Rs. 1010/- has been mentioned and the signatures mark-X, allegedly made by accused Aditya Chand Mathur were never sent to FSL by the IO to verify whether the cheque FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 11/16 no. 761184 of Bhanu Bharti Arora for Rs. 1010/- was received by Aditya Chand Mathur only and not by anybody else. Hence, the Defence Counsel argued that it can not be said with surety that the cheque no. 761184 was received by Aditya Chand Mathur.
Defence Counsel also brought attention of the court to the examination and cross-examination of PW7 Sh. Bhanu Bharti Arora who had stated that he had already received his salary and no dues were remaining towards the company and there was no question of payment of any dues. Defence Counsel further argued that PW4 Sh. D.P. Arora, father of Bhanu Bharti Arora had also stated in his examination-in-chief and cross-examination that further question of payment does not arise as his son had left the service and he was paid upto 31.07.1990. Defence Counsel also argued that PW6 Sh. Maninder Singh and PW9 Sh. Ravi Shankar have not fully supported the case of prosecution and PW9 had failed to identify the accused in court.
The Ld. Defence Counsel vehemently argued that prosecution has failed to prove that the accused was the maker of cheques in question and in absence of this proof, offence u/s 468 IPC can not be made out against accused. In regard to the Account Opening Form of Sh. Bhanu Bharti Arora which is Ex.PW6/B, Defence Counsel argued that the FSL report is mere opinion of the expert and the prosecution has failed to examine the expert in court and moreover the signatures and hand writing of accused were not given by his own free will. In respect to cheque no. 761184 of Rs. 1010/-, the Ld. FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 12/16 Defence Counsel argued that prosecution has failed to prove that the amount of Rs. 1010/- was ever withdrawn by accused or transfered to account no. 8661 of Bhanu Bharti Arora at the instance of accused since the account statement Ex.PW6/D does not find mention of the cheque number anywhere, though one entry for sum of Rs. 1010/- is mentioned in the account statement.
The Ld. Defence Counsel relied upon judgment of Hon'ble Supreme Court of India in case title S. Jaipal Reddy VS. State of Andhra Pradesh 1996(JCC)567 in which the Hon'ble Supreme Court has held in para no. 21 that the evidence of hand writing expert u/s 47 Indian Evidence Act 1872 is a weak type of evidence and it can not be conclusive proof of any fact unless corroborated by other independent and reliable evidence. The Defence Counsel argued that in the present case, the hand writing expert has not been examined by the prosecution in witness box, hence his report is also a very weak type of evidence and it can not be conclusive proof of fact of forgery. On the basis of above said arguments, the Defence Counsel vehemently argued that no offence is made out against accused and accused is entitled to acquittal.
Ld. APP argued that prosecution witnesses have supported the case of prosecution and prosecution has proved the case for conviction of accused.
After hearing arguments and perusal of file, this court is of opinion that many gaps and discrepancies have been left in the case of prosecution. Firstly, perusal of entire evidence on record, as discussed above, reveals that there was no eye witness of alleged theft of two cheques no. 761272 and FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 13/16 761273 of HCL Company. None of the witnesses have stated on oath that accused was seen by them taking away the cheques. Further, the cheques were neither recovered from possession of accused nor accused was apprehended on the spot while presenting the said two cheques for encashment. Hence, no case u/s 380 IPC is made out against accused. Accused stands acquitted from offence u/s 380 IPC.
As far as charges u/s 420/468/471 IPC are concerned, the prosecution was required to prove ingredients of all the said offences beyond reasonable doubt to warrant conviction of accused. However, many gaps have been left by the prosecution. Firstly, complainant Sh. Yogesh Giri, PW Smt. Neelam Dhawan, Sh. R.P. Singh and Sh. Sudhir Kalra have not been examined on oath in court. Despite repeated issuance of summons, all the four above said witnesses failed to appear in court for substantiating the allegations of complainant. Perusal of the two cheques no. 761272 and 761273 reveals that there are signatures of Sh. R.P. Singh, Mrs. Neelam and Sh. K.B. Ratan on the said cheques but the story of prosecution is that neither of the three persons had signed the cheques and they were forged by accused. Specimen signatures were also given by said three persons to IO for seeking FSL report regarding genuineness of signatures. Though, the FSL report had been filed on record but neither the witnesses Sh. R.P. Singh and Mrs. Neelam have been examined in court nor the hand writing expert has been brought in witness box by the prosecution to substantiate that the signatures on cheques were not of Sh. R.P. Singh, Mrs. Neelam and Sh. K.B. Ratan and they were forged FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 14/16 signatures. In absence of substantial evidence of three crucial witnesses and the evidence on oath of hand writing expert, the mere filing of FSL report can not prove the case of prosecution against accused and the court can not rely upon the FSL report in absence of substantial evidence as it will cause serious prejudice to the accused. Moreover, sample hand writing and signatures of Bhanu Bharti Arora was never taken by IO and not sent to FSL for ruling out the possibility that it could be hand writing of Bhanu Bharti Arora himself. As far as cheque no. 761184 for sum of Rs. 1010/- in name of Bhanu Bharti Aroa is concerned, the account statement of account no. 8661 Ex.PW6/D finds mention of Rs. 1010/- but the cheque number has not been mentioned in the account statement, hence it can not be said with surety that the said amount was credited to account no. 8661 from cheque no. 761184. Moreover, it can not be said with cent per cent surety that the account no. 8661 in name of Sh. Bhanu Bharti Arora was opened by accused Aditya only since the FSL report has not been exhibited and the hand writing expert has not been examined on oath. PW1 Smt. Rita Sharma has stated that accused Aditya had taken the cheque of salary of Bhanu Bharti Arora and had signed in front of name of Bhanu Bharti Arora in the list of OJT employees. The list has been exhibited as Ex.PW1/B by PW1 and the alleged signature of accused has been marked as Mark-X. But the said signature were never sent to FSL for verifying whether the signature belongs to accused Aditya only. Hence, it can not be said with surety that it was accused Aditya only and no other person who received the cheque no. 761184 of Rs. 1010/-. Thus, this fact of receiving the cheque no. 761184 and crediting it to account no. 8661 to the benefit of accused Aditya, has not been proved FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 15/16 beyond reasonable doubt by the prosecution.
PW6 Sh. Maninder Singh, Sr. Manager, Indian Bank and PW9 Sh. Ravi Shankar, Manager, Indian Bank have stated in their statements that one savings account was opened in name of Bhanu Bharti Arora by Aditya Chand Mathur, but PW9 has failed to identify accused Aditya Chand Mathur in court and no account opening form with any photograph of accused Aditya has been filed on judicial record to show that Aditya misrepresented himself as Bhanu Bharti Arora and opened fake account. Only two cards Ex.PW6/B and Ex.PW6/C have been filed on record, one reflecting the name and address of Bhanu Bharti Arora and the other reflecting name and address of Aditya C. Mathur, regarding which FSL report has been filed record which can not be read into evidence since the expert has not been examined on oath and the report has not been exhibited in proper manner. Hence, prosecution has also failed to prove beyond reasonable doubt that it was accused only and none other than accused who opened fake account in name of Bhanu Bharti Arora in Indian Bank with intention to cheat the HCL Company and to withdraw / credit huge sums of the money for his own use. Serious doubts and discrepancies have been left in the case of prosecution. Hence benefit of all the doubts is given to accused. The criminal court can not convict any person merely on the basis of suspicion, however grave it may be, and every conviction shall be based upon substantial evidence but in this case prosecution has failed to prove the case beyond reasonable doubt against accused. Hence, accused is also acquitted from offences u/s 420/468/471 IPC by giving him benefit of doubt. Personal bond and surety bond of accused stands discharged. Original documents if any be released to the authorised persons on proper receipt and endorsement, if any, be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 26th APRIL, 2012 MM-03(SE), NEW DELHI FIR no. 336/90 ; PS: Kalkaji St vs. Aditya Chand Mathur Page no. 16/16