Delhi District Court
State vs . Sushil Kapoor on 5 August, 2023
IN THE COURT OF MS. PREETI PAREWA, CHIEF
METROPOLITAN MAGISTRATE, SHAHDARA DISTRICT,
KARKARDOOMA COURT, DELHI.
FIR No.296/98
PS Crime Branch
U/s 420/467/468/471/120B IPC
State Vs. Sushil Kapoor
JUDGMENT
(a) Sr. No. of the Case 78230/2016
(b) Date of offence 05.09.1998 & 06.09.1998
(c) Name of the complainant Sh. D.D. Maheshwari,
Chief Manager, Service Branch,
Bank of Baroda, Parliament
Street, New Delhi.
(d) Name, Parentage & 1. Narain Dass Sharma (since abated) address of the accused.
S/o Sh. D.C. Sharma R/o 9/617, Vishwas Nagar, Shahdara, Delhi.
2.Sushil Kapoor S/o C.L. Kapoor R/o 226, Pratap Khand, V.K. Nagar, Delhi95.
(e) Offences alleged 420/467/468/471/120B IPC (f) Plea of accused Pleaded not guilty (g) Final Order Convicted (h) Date of Institution 07.01.1999 (i) Date of reserving Not Reserved judgment (j) Date of judgment 05.08.2023 FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 1 of 25 BRIEF REASONS FOR THE DECISION
1. In brief, the case of the Prosecution is that on or around 05.09.98 at Delhi both the accused persons entered into a criminal conspiracy i.e. to commit the forgery of bank drafts and cheat the bank by using those forged bank drafts and to obtain money from the bank against those bank drafts. That accused Sushil Kapoor on 06.09.98 and thereafter presented total 12 forged bank drafts having number 786662, 786651, 786663, 786646, 786659, 786636, 786647, 786654, 786634, 786658, 786635, 786642 worth total Rs. 56,75,500/ in bank of Maharashtra, Vivek Vihar, Delhi and induced the bank to deliver money against those bank drafts having knowledge that the same are forged one and accordingly, the money was delivered to accused against those DDS. That on or before the abovesaid date and time accused persons committed forgery by way of signing the signatures of bank officials on the above said Demand Drafts and further, accused Sushil Kapoor committed the said forgery of bank drafts for the purpose of cheating. That on 06.09.98 and thereafter accused Sushil Kapoor used the said forged DDs by presenting the same in the bank, as genuine believing the same as forged. Thus, the present chargesheet has been filed for the offences punishable under Sections 467/468/420/471/120B IPC.
2. The aforesaid charge sheet was filed before the court on 07.01.1999, and thereafter, accused persons were directed to be produced from JC . Upon their production, provision of section 207 Cr. P.C. was complied with.
FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 2 of 25
3. During the trial, vide order dated 28.09.2006, proceedings qua accused Narain Dass Sharma stood abated.
4. At this stage, it is apposite to mention here that vide judgment dated 06.09.2013, passed by the Ld. Predecessor of this Court, the accused Sushil Kapoor was convicted for offence punishable U/s 420/467/468/471 IPC and vide order dated 05.10.2013 was sentenced for SI of 6 years alongwith fine of Rs. 30 lac ID/SI 1 years & 6 months qua offence U/s 420 IPC, SI of 5 years alongwith fine of Rs. 10 lac ID/SI 1 year qua offence U/s 468 IPC, SI of 2 years alongwith fine of Rs. 10 lac ID/SI 6 months qua offnece U/s 471 IPC and SI of 6 years alongwith fine of Rs. 10 lac ID/SI 1 years qua offence U/s 467 IPC and all the sentences of substantive imprisonment were directed to run concurrently.
Thereafter, vide judgment dated 01.12.2016, the Ld. Sessions Court directed setting aside the said judgment of conviction and order on sentence and remanded back the case file to this Court with directions to modify the charges as per evidence produced by the prosecution, especially in respect of allegations of forgery of signature of Mr. Surender and in respect of forgery of receipt of acknowledgement of payments. Pursuant to said directions, amended charge for the offences punishable U/s 120B IPC, 420 IPC r/w 120B, 467 r/w 120B IPC, 468 r/w 120B IPC and 471 r/w 120B IPC were framed against the accused Sushil Kapoor, to which he pleaded not guilty and claimed trial.
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5. In Prosecution Evidence, the Prosecution had examined 12 witnesses.
5.1. PW1 Sh. Ram Nath Saini (Bank Official) this witness deposed that in the year 1998, he was working at Manager's Scale at Bank of Baroda, Hazrat Ganj Branch, Lucknow and police officials (crime branch) had shown the DDs no. 786662 of amount Rs. 5,20,000/, no. 786651 of Rs. 3,70,000/, No. 786663 of amount Rs. 4,70,000/, No. 786646 of amount Rs. 4,80,000/, No. 786659 of amount Rs. 4,95,500/, no. 786636 of amount Rs. 5,50,000/, no. 786647 of amount Rs. 4,90,000/, no. 786654 o famount Rs. 4,50,000/, no. 786634 of amount Rs. 4,70,000/, no. 786658 of amount Rs. 3,90,000/, no. 786635 of amount Rs. 4,50,000/ and no. 786642 of amount Rs. 5,40,000/ respectively bears his forged signatures and after seeing the handwritings and printings of DDs, he told the police official that those DDs had not been issued from his branch. The DDs on record having forged signature mark as Q1 to Q2 and DDs Ex. PW/A1 to Ex. PW1/A12 are not his and are forged. This witness deposed that police official had obtained his specimen signatures and handwriting Ex. PW1/A13 to Ex. PW1/A15 and his statement was recorded.
This witness was duly crossexamined on behalf of accused Sushil Kapoor.
5.2. PW2 ASI Suresh Chand (Duty Officer) - this witness registered the FIR on the basis of rukka and proved carbon copy of the same as Ex. PW2/A. Despite grant of opportunity, this witness was not cross FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 4 of 25 examined on behalf of accused persons.
5.3 PW3 Sh. K.K. Singh (Bank Official) - this witness deposed that from 1996 to May 1999, he was posted at Bank of Maharashtra, Vivek Vihar Branch and at the said branch was bank account of M/s Kisan Finlease Ltd. and Mr. Sushil Kumar was the Director of the said firm and in September, 1998 Sushil Kapoor presented 12 drafts of various dates drawn on Bank of Baroda. The amount was credited in the account of said firm and drafts were sent to respective branches for its realization but five drafts were returned to the branch by Bank of Baroda on the ground that those drafts were forged ones and accordingly, they have paid the amount for those forged drafts and that much of amount was debited from the account of said firm and it was also informed at their branch verbally that even those seven drafts were also forged. This witness brought the documents pertaining to the CC Account no. 10154 in the name of M/s Kisan Finlease Ltd. and deposed that against this account, bank sanctioned cash credit limit of Rs. 1,50,000/. This witness deposed that vide seizure memo dated 17.10.1998 Ex. PW3/A, five DDs and vide seizure memo Ex. PW3/B, certain documents were taken into possession by the police and vide Ex. PW1/H certain documents including original credit voucher and other photocopies of bills were taken into possession by the police. This witness also proved the letter reference no. 24/CC/Kisan Finelease Ltd./98 dated 24.09.1998 Ex. PW3/D by which the DDs were taken into possession by the police, the letter written to ACP forgery section regarding forged demand draft Ex. PW3/E, another letter dated FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 5 of 25 20.11.1998 in his handwriting addressed to ACP Forgery Section Crime Branch regarding forged DD Ex. PW3/F and the record produced by this witness regarding the account of M/s Kisan Finelease Ltd. mark A. This witness was duly crossexamined on behalf of accused.
5.4 PW 4 SI Tej Singh proved the factum of arrest of accused of Narain Dass Sharma (since abated) and his disclosure statement Ex. PW4/A, his personal search memo Ex. PW4/B and seizure memo Ex. PW4/C. He further proved the seizure memo of documents produced by accused Sushil Kapoor Ex. PW4/D, factum of arrest of Sushil Kapoor, personal search memo of accused Sushil Kapoor as Ex. PW4/E, disclosure statement of accused Sushil Kapoor as Ex. PW4/F and seizure memo of documents seized from the possession of accused Sushil Kapoor as Ex. PW4/G. He further proved the seizure memo on documents seized from the possession of Mr. A.K. Singh, Bank Manager, Bank of Maharashtra, Vivek Vihar Branch Ex. PW4/H and another disclosure statement of accused Narain Dass Sharma (since abated) dated 14.10.1999 as Ex. PW4/I. Despite grant of opportunity, this witness was not cross examined on behalf of accused Sushil Kapoor.
5.5 PW4 Sh. Jagannath Rao, Dy. Manager, Andhra Bank, Vishwash Nagar (now read as PW4A to avoid any confusion) this witness produced copies of statement of accounts in the name of Laxmi Wire Industries (A/c No. 1480) FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 6 of 25 and the statement of account of Durga Wire Industries (A/c No. 1574). however, his examination was deferred for want of certified copy as per Bankers' Book Evidence of the account opening form and the statement of account on the next date of hearing, which was later produced by PW11 Ehsan Khan.
5.6 PW5 Sh. Ravinder Bharti - deposed that in 1996 he was Chief Manager in Hazrat Ganj Branh Lucknow, Bank of Baroda and sometime in 1998 his subordinate Sr. Manager reported to him having received a telephone call from service branch New Delhi regarding issuance of certain draft of huge amounts details of which were telephonically communicated to the Sr. Manager, who on checking the computer and other relvant records found that no such drafts were issued by Hazarat Ganj Branch, Lucknow. This was the first time, branch came to know about this incident and found that the drafts have been paid by the Bank of Baroda Service Branch which were forged and not issued by the Hazarat Ganj Branch, Lucknow. They have also received the photocopy of such paid drafts from service Branch: New Delhi and observed that the drafts were collected by Bank of Maharastra, etc. Around 912 drafts came in light which were paid and were forged in other words those drafts were not issued by Hazarat Ganj Branch at all. This witness after seeking the original drafts Ex. PW3/A1 to Ex. PW3/A12 deposed that same are forged ones as they were not issued by Hazrat Ganj Branch. This witness further deposed that when they have seen the photocopy of the referred forged drafts they have observed that the sign of star appearing on the forged drafts are different than the drafts which were prepared FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 7 of 25 by Hazrat Ganj Branch through computer. This witness further deposed that another vital point is that digital points printed on the forged drafts are in different manner which is not provided in the computer of Hazarat Ganj Branch Lucknow and also seen the letter dated 13.10.98 Ex. PW5/A addressed to SI S.M. Sharma of Forgery Section EOW, New Delhi regarding some queries sought for and also identify the signature of Sr. Manager (Staff) and the then Sr. Manager (Operations) at point B & C respectively. This witness further deposed that all the drafts are in the name of Sharma Packers, Durga Wire Industry, Aggarwal Trading Company etc. However, all the bank drafts have been signed by one Surender, who is either proprietor of these concerns or partner and in such cases he has endorsed the draft in question in favour of Kisan Finlease Ltd. for payment authorizing payment of such drafts under reference to M/s Kisan Finlease ltd. This is called in banking term "third payee endorsement". When the first payee does not have a good title the third payee by any means cannot acquire a good title because the drafts under reference strictly were forged.
This witness was duly crossexamined on 24.12.2011 by the accused after allowing the application U/s 311 Cr.P.C. vide order dated 01.09.2011.
5.7 PW 6 Sh. J.P.Sharma Sr. Manager (retired from Bank of Baroda) deposed that on 14.01.99 he was posted as Sr. Manager (Admn) at Hazrat Ganj branch of Bank of Baroda, Lucknow and on that day Chief Manager Mr. R.N. Bharti was on leave hence as per the request of the IO of this case, he handed over documents Ex.PW6/A to him i.e photocopies of FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 8 of 25 key register joint custodian one sheet each(2 pages), photocopy of inspection report dt. 12.2.98 (3 pages) and concrete audit report January 1998 (3 pages) and same were seized by the IO and the photocopies of the saud documents as per originals were duly attested by him as marked A, B and C respectively.
This witness was duly crossexamined on behalf of accused Sushil Kapoor.
5.8 PW7 HC Murari Lal deposed that on 17.10.98 he had joined the investigation of the case along with SI S.M. Sharma and they had gone to bank of Maharashtra, Vivek Vihar, where they had met the Manager of the bank who had handed over five demand drafts with returning reason memo and papers of the property no. PK226, Second floor, Partap Khand, Vishwas Nagar, related to the accused which were taken into possession vide document Ex.PW3/A and 3/B and IO recorded his statement.
This witness was duly crossexamined on behalf of accused.
5.9 PW8 Sh. B.L. Bunkar, Asstt. Manager at Bank of Maharashtra Vivek Vihar Branch - deposed that on 17.04.98 he was working in the said branch alogwith Branch Manager Sh. A.K.Singh and on that day, five Demand Drafts of Bank of Baroda along with written memo of the said draft were handed over to the IO of the case which were seized vide seizure memo Ex. PW3/A and proved the Drafts as Ex. A1 to A5 and Written memos as Ex. PA, PB and PC. This witness further deposed FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 9 of 25 that on 21.10.98, original credit vouchers, photocopies of bill purchase and other bill purchase documents were seized by the IO vide seizure memo Ex.PW4/H and proved the Vouchers along with list as Ex. PD collectively and photocopies of bill purchase document duly attested by branch manager as mark A collectively.
This witness was duly crossexamined on behalf of accused.
5.10 PW9 Inspector S.M. Sharma (Investigating Officer) - He deposed on the lines of investigation conducted by him and proved his endorsement on the complaint received in the office of ACP Forgery Section EOW Crime Branch as Ex. PW9/A. Thereafter, he handed over the same to Constable Ram Keval for registration of case FIR. After registration of case FIR, copy of FIR and original complaint was handed over to him for investigation and on 10.10.1998 he along with SI Tej Singh arrested and personally searched the accused N. D. Sharma at the instance of Sushil Kapoor (the then complainant) vide arrest memo Ex. PW 9/B and personal search memo Ex. PW 4/B. He interrogated the accused N. D Sharma and recorded his disclosure statement Ex. PW 4/A. & Ex. PW4/I. He also proved seizure memo of documents seized from the house of accused as Ex. PW 4/C, seziure of documents handed over to him by Sushil Kapoor (the then complainant) vide Ex. PW 4/D. He also proved the personal search and arrest memo of accused Sushil Kapoor as Ex. PW 4/E and PW 9/C. That, he interrogated accused Sushil Kapoor and recorded his disclosure statement Ex. PW 4/F. Further, on 17.10.1998 he along with SI Tej Singh FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 10 of 25 and Jitender Kumar conducted raid along with the accused Sushil Kapoor at his residence at PK226, Second Floor Shahdara, from where some stamps and relevant documents were seized vide Seizure memo Ex. PW 4/G and during investigation he had also seized the relevant documents/drafts from the bank officials of Bank of Maharashtra Vivek Vihar, vide seizure memo Ex. PW 3/A, 3/B, 4/H and on 22.10.1998 he had seized some document/draft from the bank officials of Bank of Baroda Parliament Street vide seizure Memo Ex. PW9/D and also seized draft/documents from service branch Bank of Baroda vide seizure memo Ex. PW9/E. This witness has further deposed that he had made correspondence with Bank of Baroda and bank of Maharashtra with regard to investigation of present case and met with the bank officials of Bank of Baroda, Lucknow and had inquired about the draft in question. Further, during investigation he had obtained the specimen signatures of accused Narain Dass Sharma (since abated), Sushil Kapoor, R. N. Saini, U. C Dubey, Mrs. Rekha Rani, specimens of stamp impressions which were recovered from the house of accused Sushil Kapoor and deposed that the specimen signatures/writing are Ex. PA to PM, Ex. PW 1/A13, 1/A14, 1/A15, Ex. PN to PZ, PZ1 to PZ29 and all the relevant documents were sent to FSL for comparison and expert opinion. This witness filed the chargesheet and supplementary chargesheet along with documents and result and recorded the statement of PWs. This witness proved the case property brought by MHC(M) bearing the seal of FSL i.e. four stamps as Ex. P1 to P4 as per the seal impression mentioned in seizure memo Ex. PW4/B. FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 11 of 25 5.11 PW 10 Sh. D.D.Maheshwari (complainant), Chief Manager, Bank of Baroda, Service Branch, Parliament Street, New Delhi - deposed that in the year 1998 he was working in the said branch and he had sent letter dt. 25.09.98 Ex. PW10/A to the IO with reference to the inquiry of the complaint of Sushil Kapoor, in which he stated that the IO had visited their office and he has confirmed the contents of above said complaint. Further, he deposed that he has mentioned in his letter that seven drafts as mentioned therein have been paid by their branch and five drafts of the similar nature have been returned by their branch to Bank of Maharashtra, Vivek Vihar Branch as unpaid and he further stated that these drafts are purported to have been issued from the Lost demand draft books of their Hazrat Ganj Branch, Lucknow, UP and has also mentioned that the said drafts are forged one. All the drafts were presented by the Bank of Maharashtra, Vivek Vihar Branch. He has also stated that their higher authority had given a complaint to SP CBI on 23.09.98 regarding the forgery and he has also given the photocopies of draft to the IO. This witness further deposed that on 22.10.98, he has sent letter Ex. PW10/B to Additional DCP Crime Branch, in which he has mentioned that three drafts have been presented in clearing by the bank of Maharashta and same were not genuine and has also written that the full details have been mentioned in a complaint dt.22.09.98 which was made by their higher officer to CBI and that is why, they have not lodged any FIR with the police. The total amount which their bank suffered loss was Rs. 33.40 lacs approximately. The letter Ex PW10/B. The copy of complaint dt. 22.09.98 made to SP FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 12 of 25 CBI Marked 10 in which details were mentioned which bears the signature of the then DGM. The three original drafts were sized by the IO vide seizure memo Ex.PW9/B which were also signed as a witness by G.R. Khurana Manager of their branch. The drafts are Ex.PW1/A6, 1/A7 & 1/A8. Two drafts bears the endorsement on the back of the drafts for Durga Wire Ind. which bears the stamp of the said firm and signed of Surender as Prop. These drafts bears the stamp of first payees endorsement confirmed please credit their our current account for Kisan Finlease Ltd. which bears the signature of Director. The draft Ex.PW1/A7 bears the endorsement on the back of the drafts for Aggarwal Trading Company which bears the stamp of the said firm and sign of Surender as Prop. This draft bears the stamp of first payees endorsement confirmed please credit their current account for Kisan Finlease Ltd. which bears the signature of Director. This witness further deposed that on 29.10.98 he has mentioned in his letter about the payment of two more drafts encashed by M/s Kisan Finlease Ltd. collected through Bank of Maharashtra, Vivek Vihar Delhi. These drafts no. 024977 dt. 18.07.98 favouring Manohar Lal Pankaj Kumar for Rs. 20,000/ issued by their Bank Khanderao Market Badoda and draft no. 617927 dt. 30.07.98 favouring Satish Kumar Singh issued by their Azamgarh Brank for Rs. 5000/ were reported to be lost. There is cancellation of crossing on the said drafts. The payment of the said drafts were collected by bank of Maharashtra Vivek Vihar Delhi who had purchased the drafts in BP. The letter is Ex.PW10/C. He has also attached photocopy of circular issued by their Head Office Baroda. The photocopy of the drafts are marked 10A, 10B and 10C which FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 13 of 25 bears the endorsement of cancellation at point X. These drafts bears the stamp of first payees endorsement confirmed please credit their current account for Kisan Finlease Ltd. which bears the signature of Director. He has handed over four original drafts to the IO which was seized vide Ex.PW9/C , the drafts Ex.PW1/A9, A10, A11 & A12, draft Ex.PW1/A9 & A11 bears the endorsement on the back for Sharma Packers the said drafts bears the stamp of the said firm and signed of Surender as Prop. This draft bears the stamp of first payees endorsement confirmed please credit their current account for M/s Kisan Finlease Ltd. which bears the signature of Director. The drafts Ex.PW1/A10 & A12. bears the endorsement on the back of drafts for Aggarwal Trading Company. The said drafts bears the stamp of the said firm and signed of Surender as Prop. This draft bears the stamp of first payees endorsement confirmed please credit their current account for M/s Kisan Finlease Ltd. which bears the signature of Director.
5.12 PW11 Mr. Ehsan Khan, Cash peon at Andhra Bank, Vishwas Nagar Delhi - deposed that he was deputed by Sh. N.K. Bajaj, Sr. Branch Manager of the said bank to appear along with the summoned record. On 20.09.2007 PW4 Jagan Nath Rao Deputy Manager of said branch had appeared before the court and he was partly examined and further examination was deferred for the want of account opening form and Mr. Jagan Nath Rao has been transferred. This witness brought the copy of account opening form of account No. 1480 in the name of Laxmi wire Industries Ex. PW11/A and 11/B and this witness identify the signature of Sh. N.K. Bajaj at point A as he was FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 14 of 25 working with him and seen him writing and signing. As per letter Ex.PW11/C the account opening form of account no. 1574 of M/s Durga Wire is not available in the bank.
This witness was duly crossexamined on behalf of accused.
5.13 PW12 Ms. Deepa Verma (Asst. Director Documents, FSL, Rohini) - deposed that on 11.12.1998 the documents were received in the present FIR from the office of Inspector EOW, Crime Branch for examination of opinion. This witness proved the report no. FSL 98/d1535 dated 19.11.1999 as Ex. PW12/A in which the details of questioned documents as Q1 to Q19 and specimen writing/signatures mark S1 to S10 & S1 to S14 are mentioned and deposed that the documents were examined by her and placed in file in original as Ex. PW12/A1 to A8 and specimen supplied for furnishing of this report already Ex. PA to PM. This witness further deposed that o n31.12.1998 she further received some documents in the present FIR from the office of Inspector Crime Branch vide letter dated 29.112.1998 and the question documents as Q1 to Q60 and Q1A to Q24A alongwith specimen writing/signature and sample stamp impression marked as S1 to S46, details of which mentioned in her report no. FSL98/D1611 dated 19.11.1999 as Ex.PW12/B and the documents examined by her are placed in file in original as Ex. PW1/A1 to A12 and the documents relating specimen signatures which were sent to her are in judicial file as Ex. PW1/A, PW1/A13, PW1/A14, A15 and also Ex. PN to PZ and PZ1 to PZ29 and her report already placed in court record.
FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 15 of 25 This witness was duly crossexamined on behalf of accused.
6. Statement of accused Sushil Kapoor under Section 313 Cr.P.C was recorded during proceedings held on 15.05.2012 and supplementary statement U/s 313 Cr.P.C. has been recorded on 14.12.2018, wherein accused denied all the allegations. Further, the accused has examined himself as defence witness.
7. In Defence Evidence, the accused Sushil Kapoor stepped into the witness box as DW1 and deposed that he was carrying on the business in the name of Kissan Finlease Ltd. Incorporated under Companies Act 1956 registered on 10.08.1995 having its registered office at B34, Jhilmil Colony and the purpose of business was to deal with encashment of negotiable instrument like cheques, demand draft, bill of exchange etc. and rendered services to their client being banks. financial institutions, firms for withdrawing cash from bank by discounting of bills and selling of share stocks, bills of exchange, demand drafts, cheques and other securities by charging nominal commission. Coaccused Narain Dass Sharma (since abated) was also living in Vishwas Nagar and ws known to him through some of his friends. DW1 further deposed that he was dealing with coaccused Narain Dass Sharma (since abated) since JanuaryFebruary, 1998 and Narain Dass Sharma (since abated) used to give him duly endorse demand drafts in favour of his company pertaining to FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 16 of 25 various amounts and after deducted the commission, he used to pay the amount of the demand drafts after deducting his commission against proper receipt. It is stated that Narain Dass Sharma (since abated) had given him 12 duly endorse demand drafts pertaining to 05 September 1998 to 13 September 1998. The said demand drafts were pertaining to an amount of Rs. 57,75, 500/ only. DW1 further deposed that he made the aforesaid payment to Sh. Narain Dass Sharma (since abated) after deducting his commission against proper receipt and aforesaid demand drafts were issued from Bank of Baroda, Hazrat Ganj, Lucknow Branch and he deposited these demand drafts in his company's bank account at the Bank of Maharashtra Vivek Vihar for clearance on various dates. DW1 was informed by his bank of Mahashtra on 1516/09.1998 that 3 drafts from the aforesaid drafts amounting to are forged and thereafter he tried contacting Narain Dass Sharma (since abated) to recover his money and further to ask why forged demand drafts were given to him. DW1 further deposed that he even visited the house of Narain Dass Sharma (since abated) where he denied to meet him and thereafter as all the remaining 9 demand drafts of the same series, he doubted the same also to be forged and he made a police complaint dated 19.09.1998 to DCP Crime Branch, Police Head Quarter on 21.09.1998 against Narain Dass Sharma (since abated) who had a conspiracy to defraud him and cheat him for an amount of Rs. 56,75,500/ and he was in contact with the police officials and was regularly pursuing his complaint with the police authorities. DW1 deposed that finally the police official of PS Vivek Vihar lodged present FIR no. 296/98 U/s 420/480 IPC on 09.10.1998 FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 17 of 25 and thereafter Narain Dass Sharma (since abated) was arrested in his presence and he had identified him on 09 10.10.1998 and thereafter, he assisted the investigating officers from 10.10.1998 to 15.10.1998 regularly and was taken to Lucknow, Bank of Baroda, Hazrat Ganj Branch and after detailed investigation he was brought to Delhi on 16.10.1998. DW1 deposed that he was taken to various banks including the Bank of Baroda, Parliament Street Branch and assisted the police officials in investigation till 20.10.1998 and thereafter he was made to appear before Magistrate in Court no. 29, KKD Courts on 21.10.1998 and wast sent to JC. DW1 deposed that he was wrongly made as an accused in the present FIR though he has been victimized by hands of Narain Dass Sharma (since abated) and bank officials.
This witness was duly cross examined on behalf of State by the Ld. Public Prosecutor.
8. Thereafter, the Defence Evidence was closed and matter was fixed for final arguments.
9. Ld. APP for the State has submitted that the Prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant sections are met with in the present case.
Per contra, it has been argued on behalf of accused that accused is innocent and he has been falsely implicated in the present case. It is further submitted that rather he has been cheated by the accused Narain Dass Sharma (since abated) and has been falsely implicated as an accused in the present FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 18 of 25 case whereas he is the victim himself.
10. This Court has heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and has perused the record. Written submissions filed by the rival side also perused.
11. At the outset, it is imperative to mention the ingredients to required to be proved by the prosecution for proving an offence punishable under Section 120B IPC. Criminal conspiracy is defined in Section 120A IPC, which lays down that "when two or more persons agree to do or cause to be done (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is designated as a criminal conspiracy". In considering the question of criminal conspiracy,it is not always possible to give affirmative evidence about the date of the formation of the conspiracy, about the persons who took part in the formation of the conspiracy, about the object which the conspirators set before themselves as the object of the conspiracy and about the matter in which the object of the conspiracy was to be carried out. All this is necessarily a matter of inference. The essence of criminal conspiracy is an attempt to do an illegal act. Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that there should be express proof of the agreement, far from the acts and conduct of the parties the agreement can be inferred.
FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 19 of 25 11.1 Now, let us examine essential ingredients of an offence of cheating. The essential ingredients of the offence of "cheating" are 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.
11.2 To constitute an offence under section 420 IPC, 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).
11.3 Further, in order to prove that the offences punishable under section 467/468/471 IPC, the Prosecution is required to prove the following:
Section 467 IPC: (1) The accused must have forged a document; and (2) The document must be one of the FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 20 of 25 classes specified in the section.
Section 468 IPC:
(i) that the document is a forgery;
(ii) that the accused forged the document;
(iii) that he did as above intending that the forged document would be used for the purpose of cheating.
Section 471 IPC:
(i) Fraudulent or dishonest use of a document as genuine.
(ii) Knowledge or reasonable belief on the part of the person using the document that it is a forged one.
12. In the present case, it is an admitted case that accused Sushil Kapoor and accused Narain Dass Sharma (since abated) (since abated) were known to each other and were dealing with each other since JanuaryFebruary, 1998 and accused Narain Dass Sharma (since abated) used to give him duly endorsed DDs in favour of his company i.e. Sharma Packers, Durga Wire Industry, Aggarwal Trading Company etc. Also, the accused Sushil Kapoor has deposed in his testimony that the DDs in question were given to him by accused Narain Dass Sharma (since abated). The said DDs have been proved to have been forged i.e. not issued by the Bank of Baroda, Hazrat Ganj, Lucknow Branch. Further, PW10 has deposed that on 29.10.1998, two more drafts were encashed by M/s Kisan Finlease Ltd. through Bank of Maharashtra, Vivek Vihar Branch, issued by Bank of Baroda, Azamgarh Branch, which were reported to be lost. The copies of the said drafts are marked 10A to 10C. Thus, from the circumstantial evidence on record, FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 21 of 25 the facts established in the present case by the prosecution rule out any likelihood of innocence of accused Sushil Kapoor and there is a clear established link and the chain of events stands completed and therefore, it has been proved that accused Sushil Kapoor alongwith accused Narain Dass Sharma (since abated) together agreed to forge the DDs in question and cheat the complainant Bank for their wrongful gain and consequently, accused Sushil Kapoor stands convicted for the offence punishable under Section 120B IPC.
12.1 Additionally, the FSL report Ex. PW12/A1 establishes that accused Sushil Kapoor signed as 'Surender' endorsing the stolen DDs in question at the back of all the drafts without having any authority whatsoever with the payee i.e. Aggarwal Trading Company, Sharma Packers or Durga Wire Industries. The said drafts have been proved to be forged i.e. not issued by the Hazart Ganj, Lucknow Branch as the sign of star (****) appearing on the forged drafts were different than the drafts prepared by Hazrat Ganj Branch through Computers and the digital points printed on the forged drafts were different in the manner which is not provided in the Computer of Hazrat Ganj Branch, Lucknow, as deposed by PW5 and his testimony in this regard could not be rebutted by the defence in the cross examination.
12.2 Further, PW3 has testified that the forged drafts in question drawn on Bank of Baroda, Hazart Ganj Branch, Lucknow were presented by the accused Sushil Kapoor in Bank of Maharashtra, Vivek Vihar Branch, where he held an account FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 22 of 25 in the name of M/s Kisan Finlease Ltd. and the said account was being operated by him in the capacity of Director out of which 07 DDs were credited to the said account and 05 DDs were returned as forged. The same stands proved vide memos Ex. PW3/A, Ex. PW3/B, Ex. PW1/H, Ex. PW3/E & Ex. PW3/F. The testimony of this witness also stands unrebutted.
12.3 Now, the defence of the accused Sushil Kapoor is that the said DDs were handed over to him by coaccused Narain Dass Sharma (since abated) as he was carrying a business of discounting of Negotiable Instruments. His prime defence is that after deduction of his commission, he returned the remaining amount to coaccused Narain Dass Sharma (since abated) against receipts and he has been victimized at the hand of coaccused Narain Dass Sharma (since abated). During course of investigation, the said receipts were sent to the FSL for examination, wherein vide report Ex. PW12/A, the signatures of Sushil Kapoor and that of Narain Dass Sharma (since abated) have matched on the said receipts. However, in the said report, it has been specifically mentioned that "the edges of the upper part of the documents containing markings Q1 to Q8 are not as smooth and regular as the edges of the lower part of the said document sheets and appears to have been cut to sharp edge instrument at upper part". This observation of the expert is also visible from the naked eye on perusal of the said receipts. Thus, it appears that the said receipts have been prepared by accused Sushil Kapoor after interpolation only to prepare a false defence and mislead the investigation of the present case. If the amount of the DD was FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 23 of 25 encashed in the account of M/s Kisan Finlease Ltd., it was probable for the accused Sushil Kapoor to transfer the said amount by way of account transfer after deduction of his commission, to the account of Narain Dass Sharma (since abated), however instead of the account transfer, he has handed over cash of such huge amount to accused Narain Dass Sharma (since abated) by hand. This itself casts a shadow of doubt upon the defence raised by accused Sushil Kapoor.
12.4 Further, the FSL report Ex. PW12/A1 is specific with respect to the fact that accused Sushil Kapoor signed as 'Surender' endorsing the valuable security in question & the stamp impression of "Please to Kisan Finlease Ltd." and "1st Payee's Endorsement Confirm Please Credit our Current Account for KISAN FINLEASE LTD." also matches with the stamps recovered & seized from the residence of Sushil Kapoor during investigation, leaving no doubt that the forged third payee endorsement was made by accused Sushil Kapoor, pursuant to which the complainant Bank was deceived to deliver the amount of the said forged DDs in the account of Kisan Finelease Ltd., of which accused Sushil Kapoor was the Director. The defence of the accused that Surender was the son of Narain Dass Sharma (since abated) is irrelevant here as it has been proved by the Prosecution that he had forged the signature of "Surender" on the DDs in question. Therefore, from the material available on record and the evidence led, this Court is of the opinion that the prosecution has been able to prove beyond all reasonable doubts all the ingredients of the offences FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 24 of 25 punishable under Section 420 IPC read with Section 120B IPC, Section 467 IPC read with 120B IPC, Section 468 IPC read with 120B IPC and Section 471 IPC read with 120B IPC. Consequently, the accused Sushil Kapoor stands convicted for the said offences.
13. Copy of this judgment be given free of cost to the convict.
Announced in the Open Court
on 05.08.2023 (Preeti Parewa)
Chief Metropolitan Magistrate,
Shahdara District,
Karkardooma Courts, Delhi.
FIR No. 296/98 PS Crime Branch State Vs. Sushil Kapoor & Anr. Page No. 25 of 25