Delhi District Court
3. Title Of The Case : State vs . Sarjeevan Mittal & Ors. on 30 September, 2010
IN THE COURT OF SHRI SUNIL CHAUDHARY : ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 5/CR/1996
2. Unique I.D. No. : 02401R0031681996
3. Title of the Case : State Vs. Sarjeevan Mittal & Ors.
FIR No. 30/95
PS : I P Estate
U/s : 120 B r/w 420,466,468,471 IPC.
4. Date of Institution : 19.02.1996
5. Date of reserving judgment : 30.09.2010
6. Date of pronouncement : 30.09.2010
J U D G M E N T :
a) The Sl. No. of the case : 5/CR/1996
b) The date of commission : 26.07.1994
c) The name of complainant : Sh. H. D. Birdi
Secretary Cum Director,
15, Rajpur Road Delhi.
FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 1 of 16
d) The name of accused : 1. Sarjeevan Mittal,
S/o Sh. O. P. Mittal,
R/o E261, Laxmi Nagar Delhi.
2. Chaman Lal Sharma,
S/o Sh. Puran Chand
R/o B12/229 D, Brijpuri Delhi.
3. Gayur Ali,
S/o Raddu,
R/o Vill: Rohana Khurd, PS: Mujaffar
Nagar, Distt: Mujjafar Nagar, UP
4. Banarsi Lal,
S/o Sh. Chaudhary Ram,
R/o A2/1/110 Panchwati Colony,
Distt: Ghaziabad, UP
e) The offence complained of : U/s : 420,466,468,471 r/w 120 B IPC.
f) The plea of the accused : Pleaded not guilty
g) The final order : Acquitted
h) The date of such order : 30.09.2010
i) Brief facts of the decision of the case :
1. In the present case a complaint on 06.12.1994 was sent to Additional Commissioner of Police Crime branch regarding sponsoring of bogus list of candidates to the Income Tax Department for the post of Mali FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 2 of 16 and Peon by one H. B. Birdi who was posted as Secretary Cum Director (Employment) averring that the preliminary enquiry has revealed that some unscrupulous people in convenience of the official of the Employment Exchanges of Sahadra and Curzon Road and the candidates have sponsored bogus name by forging documents and record of the directorate of employment in a bid to get the candidates to government job. It was submitted that the Income Tax Department vide their letter no. 94 H/06/17098 dated 09.09.1994 desired to have confirmation of the list of candidates sponsored to them by the Sahadra Employment Exchange and it was found that the lists of candidates sponsored by the Employment Exchange at Vivek Vihar (Sahadra) were not genuine ones as the same contained names of candidates who were not registered with the exchange at Sahadra and even the submission sheets used for the purpose were not genuine and the signatures of Sh. Khem Chand have apparently being forged by some unscrupulous person/officials as the same differ from his routine and natural signatures and that he has denied having signed the said letter allegedly sent to the Deputy Commissioner of Income tax (Headquarter I) and that on enquiry the dispatch number mentioned on the letter dated 26.07.1994 was found fake and it was not sent by SREO, Vivek Vihar (Sahadra) and that the submission sheets allegedly used to sponsor the name of 20 candidates by the Sahadra Employment Exchange bear fake number FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 3 of 16 A172867 to 172870 and as per preliminary enquiry conducted by SREO the photocopies of one of the original submission sheet has been obtained and numbers on the same were tempered while sponsoring the names of the fake candidates by completing the formalities of having checked and sign by the Assistant Employment Officer. It was further alleged that similarly names of ten candidates were sponsored by Sahadra Employment Exchange for the post of Mali and the sheets used were never been issued by the Employment Exchange at Darya Ganj and these have been used after getting them printed from the market and these were sent under fake signatures of Sh. Khem Chand. It was prayed that case be registered and be investigated in detail to unearth the conspiracy amongst some of employees of directorate of employment, outsiders and the candidates whose names appear in the said fake list and copies of the statement of Raghuwar Dayal, Technical Assistant, Amar Nath Shukla, LDC and Banarsi Lal, LDC were sent with the complaint. On the basis of the said complaint present FIR was registered and investigations were carried out and after completion of investigations charge sheet was filed against Sarjeevan Mittal, Banarsi Lal, Gayur Ali and Chaman Lal.
2. The charges for offences of cheating and preparation of false documents and their use punishable u/s 420,466,468,471 were framed FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 4 of 16 against the accused Chaman Lal and Sarjeevan Mittal and for the conspiracy of the said offences against the accused Banarsi Lal and Gayur Ali. The accused pleaded not guilt to the charge and claimed trial that they have been falsely implicated in the case.
3. The prosecution have examined 11 witnesses to substantiate the charges against the accused whereas no witness was examined by the accused in their defence.
4. The Hon'ble Supreme Court in case title "Md. Ibrahim Vs. State of Bihar reported at 2009(4) R.C.R.(Criminal) 369" laid down the essential ingredients of the offence of "cheating" as follows :
(i) Deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
It was further held in this case that to constitute an offence under section FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 5 of 16 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
In the same case the scope of offence of forgery was also discussed and it was observed that the condition precedent for an offence under sections 467 and 471 is forgery and the condition precedent for forgery is making a false document. The term "forgery" used in these two sections is defined in section 463 as "Whoever makes any false documents with intent 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 part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery." Section 464 defining "making a false document" was analysed and it was held that the section divides false documents into three categories :
a) 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 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.
FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 6 of 16
b) 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.
c) 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.
In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
5. As per CW 1 A.P. Sharma the dispatch register for the year 1994 was not traceable. PW 1 Yatinder Singh was working in the Income tax Department in the year 1994 and was looking after of the recruitment of forth class employee in the department and in March 1994 he wrote a letter to SREO regarding the vacancies for the post of peon and Mali existing in Income tax department and in response to said letter they received a FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 7 of 16 forwarding letter dated 26.07.1994 Ex. PW 1/B with a list Ex. PW 1/C of 21 candidates of OBC category for the post of peon on two sheets. It is further deposed by the witness that another forwarding letter Ex. PW 1/D was received in the department with a list Ex. PW 1/E of ten candidates for the post of Mali. It is deposed that they suspected the signatures of SREO on the list and he wrote a letter dated 09.09.1994 Ex. PW 1/F to Khem Chand, SREO asking about the genuineness about the said forwarding letter and the list and in response letter Ex. PW 1/G was received containing reply that the said two list were not sent by SREO. As per this witness 8 documents vide seizure memo Ex. PW 1/H were seized by the Investigating Officer from him.
6. PW 2 Sh. Khem Chand has deposed that letters Ex. PW 1/B and 1/D do not bear his signatures. As per PW 3 Sadaram the list Ex. PW 1/C and 1/E are forged and the names of the candidates mentioned in these sheets were not registered at Vivek Vihar (Sahadra) Employment Exchange as per the record maintained. No record of the Sahadra Employment Exchange is produced before the court. It is deposed by PW 3 that the document Ex. PW 1/J contains 9 names of candidates which were actually registered against A 0952597, in the crossexamination the witness admitted that the said document was not written by him or in his presence. The witness was not FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 8 of 16 able to tell the name of the person who has written this document. Similar was the reply of the witness in respect of document Ex. PW 1/K and PW 3/B.
7. The officer by whom the complaint was sent to the police has been examined as PW 4. As per this witness the complaint was made by him after getting enquiry conducted by him. In the crossexamination the witness admitted that he had filed the complaint on information received by him and that he have filed the complaint on the basis of preliminary enquiry conducted by his office. The witness was not able to tell the name of the officer to whom the enquiry was marked.
8. As per PW 5 R. P. Dheren he was interrogated during the investigation and he intimated the IO that the submission sheet number A 95259798 were not entered in the stock register of Darya Ganj Employment Exchange as such they were not issued from the Darya Ganj Exchange. As per this witness submission sheet number A 172867 to 70 were issued to Sh. D. R. Jatav, AEO Employment Exchange, Sahadra on 23.06.1994. The witness in his further testimony stated that it was the duty of the storekeeper to give submission sheet and it was not his duty and that the stock register always remains in the possession of the storekeeper and it never remained in his possession as such he could not produced the same before the court. The FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 9 of 16 storekeeper and the said D. R. Jatav are not examined by the prosecution.
9. As per PW 6 SI Balwan Singh, on 25.04.1995 accused Sarjeevan Mittal, Banarsi Lal and Chaman Lal were arrested in his presence and on 26.04.1995 accused Sarjeevan Mittal was interrogated and he got recovered four rubber stamps from the first floor, Laxmi Nagar which were taken into possession vide memo Ex. PW 6/D and their specimen on 8 leaves Ex. PW 6/E1 to E8 were taken. As per this witness on 27.04.1995 the accused was further interrogated and he made disclosure statement Ex. PW 6/F and he also made statement Ex. PW 6/G on 28.04.1995. The witness further stated that on 28.04.1995 on the basis of disclosure statement of accused Sarjeevan Mittal and on his pointing out accused Gayur Ali was arrested from his house and some documents in iron box were got recovered by him which were taken into possession vide memo Ex. PW 6/H. The witness further stated that the specimen writing of the accused Chaman Lal were taken in his presence on 26 leaves Ex. PW 6/J1 to J 26. As per the witness the specimen signatures of Khem Chand were also taken on document Ex. PW 6/K1 to K6. In the crossexamination the witness stated that they went to H. No. F261, Laxmi Nagar, Delhi and IO in his presence had not enquired about the ownership of the house and they went to the ground floor and the accused let them to a room on the ground floor and inside the room card boxes were FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 10 of 16 found lying and from inside the card boxes accused picked up a polythene containing rubber stamps and produced same to them. As per this witness father and sister of the accused were present in the house at that time. Witness was not able to tell whether IO interrogated the accused on 26.04.1995 or not. The witness stated that he joined the investigation after lunch and they went in a government vehicle which was parked at about 100 yards away from the house of the accused. The witness further stated that the IO requested some person to join the raid. The witness stated that accused was formally arrested by the IO at their office as he was already arrested in other cases. As per this witness Inspector Ram Kumar was also joined in the investigation. Said inspector has been examined as PW 9 and as per his statement, on 26.04.1995 pursuant to disclosure made by the accused Sarjeevan Mittal he led them to his residence H. No. F 261, Laxmi Nagar, Delhi. As per statement of this witness accused himself picked up the stamp kept inside the card box kept under the table. As per statement of this witness they went in government Gypsy which was parked in front of house of the accused and they left the EOW office at about 5.00 pm. PW 10 SI Charan Dass was the investigating officer of the case to whom the disclosure statement was made by the accused Sarjeevan Mittal. As per this witness the accused Sarjeevan Mittal was called to join investigation at their office and after interrogation he was arrested. The witness further stated that on FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 11 of 16 25.04.1995 accused Sarjeevan Mittal made a disclosure statement and for conduction of raid, a raiding party was prepared and that on that day at about 6.30 pm they left office by government gypsy and reach at the house of Sarjeevan Mittal at 7.30 pm and that he had not requested the nearby residences before conducting raid. Thus the time of the visit of the house of the accused pursuant to the disclosure and the recovery of the alleged stamps is differently given by the witnesses. No witness other than the police officials was joined in the recovery process nor any efforts were made by the police to join such witnesses despite availability. In the circumstances recoveries of rubber stamps pursuant to alleged disclosure of the accused Sarjeevan Mittal becomes doubtful.
10. PW 7 was posted as duty officer on 19.01.1995 and on receiving rukka he registered the present FIR.
11. PW 8 Sh. Harshwardhan is the witness to whom the specimen stamps and signatures were sent to compare with the writings and stamp impression on the said lists and to give his expert opinion, who opined vide his report Ex. PW 8/A that the rubber stamp impression on the questioned documents marked Q 9/94 to Q 9/99 telly with the sample stamp impression marked S402 and S403 and that the person who wrote writing stamp and FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 12 of 16 marked S68 to S79 and S 361 to S391 also wrote the writings on documents Q1/161 to 166, Q 5/11 and Q5/12. The witness also opined that the person who wrote the documents S 80 to S 85, S113, S114, S335 to S337, S 390 to S 399 and A1 did not write the signatures marked on document Q 8/6.
12. Thus the testimony of PW 8 alone is connecting the accused with the preparation documents of the case. No other witness have stated about the writing and preparation of the lists by the accused persons. It is contended on behalf of accused persons that the testimony of PW 8 could not be relied upon as the same is not corroborated by other testimonies and that no specimen writings were taken of the accused persons and that the alleged specimen writings were never given by the accused persons which were examined by the PW 8 and were opined as similar to the writing on the questioned list. It is further contended that the specimen writing were not taken with the permission of the court. Reliance is placed on this aspect of case titled "Alamgir Vs. State of NCT Delhi reported at 2002 (4) RCR (Crl.) 834 and case titled Rakesh Kumar & Ors. Vs. State reported at 2004 (72) DRJ 311".
13. It is observed by Hon'ble Supreme Court in case of Alamgir that conviction not be based at opinion of handwriting expert and it can be relied FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 13 of 16 upon when supported by other items of internal and external evidence as the handwriting expert opinion simply corroborate the substantial evidence. It is observed by the Hon'ble High Court of Delhi in the case of Rakesh Kumar that alleged specimen signatures/handwriting/thumb/finger print impression of accused obtained during investigation by the IO without prior permission from the court could not be made use of during the trial and the report of the handwriting expert/finger print Beauro is thus rendered of no consequence at all.
14. The ratio of the cases discussed above squarely covers the facts of the present case and the findings are thoroughly applicable on the facts involved in the present case. The specimen handwriting either of the accused Sarjeevan Mittal or the witness Khem Chand or the impression of the alleged recovered stamps has not been taken with the permission of the court, even they have not been witnessed by any independent witness thus the testimony about the opinion of PW 8 given by using the said specimen is of no consequences and could not be related with the accused.
15. Except the testimony of PW 8 no evidence is on file to connect the accused persons with the making or preparation of the alleged forged list. Moreover, the original register of the Employment Exchange, Sahadra FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 14 of 16 containing the name of the person registered with it has not been produced in the court to show that the names of the candidates as mentioned in the two lists are not entered into the register nor any of the said candidates has been cited as a witness nor is arranged as a accused to show that the accused persons have prepared a false list containing their names with a view to get some unlawful gain.
16. Thus testimony available on file the accused Sarjeevan Mittal and Chaman Lal cannot be held the authors of the alleged forged list and their users.
17. No testimony of any witness is on file to show any inducement ever given by any of the accused person to anybody relying upon which any property is handed over to accused persons. It is held by the Hon'ble Supreme Court in case of "Guru Bipin Singh Vs. Chongtham Manihar Singh, reported at 1997 Crl. LJ 724" that in a case where allegations of forgery and cheating on a basis of forage documents are made and if the offence of forgery is not proved then offence of cheating cannot stand. So the charge for the offence of the cheating against the accused Sarjeevan Mittal and Chaman Lal cannot stand. If the prosecution is not able to prove the case of forgery and cheating against these two accused then charge of the FIR no. 30/95 State Vs. Sarjeevan Mittal & Ors. Page No. 15 of 16 conspiracy framed against the accused Banarsi Lal and Gayur Ali also fails.
18. In the light of the abovesaid discussion all the four accused are acquitted from the charge framed.
Announced in the open court
on 30th September, 2010 ( SUNIL CHAUDHARY)
ACMM1/ DELHI
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