Delhi District Court
Shashidharan vs State (Govt. Of Nct Of Delhi) on 30 August, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH) : SAKET NEW DELHI
Criminal Appeal No. 79/2012
ID No.: 02406R0085272012
Shashidharan
s/o Sh. K. C. Nair,
R/o 1223/10, Govind Puri,
New Delhi.
Presently at: J3/346, DDA Flats,
Kalkaji, New Delhi. ... Appellant
Versus
State (Govt. of NCT of Delhi). ... Respondent
Instituted on:16.04.2012
Judgment reserved on: 30.08.2013
Judgment pronounced on: 30.08.2013
J U D G M E N T
1. This criminal appeal was filed to assail the judgment dated 15.03.2012 and order on sentence dated 16.03.2012, both passed by Sh. Gaurav Rao, Metropolitan Magistrate, South District on the file of Criminal Case No. 228/2 of 1996, which had been registered on the basis of charge sheet submitted on 05.07.1996, on conclusion of investigation into FIR No. 516/94 under sections 381/408/420 IPC of police station defence colony.
2. Vide the impugned judgment, the appellant was held guilty and convicted for offences under sections 381/408/471 IPC. Vide the Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 1 of 18 impugned order, the Ld. Magistrate awarded rigorous imprisonment for three years with fine of Rs. 1,000/ for each of the said offences. It was further directed that in the case of default in payment of fine, the appellant shall undergo additional simple imprisonment for 10 days. The learned trial court directed the appellant to also pay Rs. One lac as compensation to the complainant and, in case of default in compliance with the said directions, to further undergo simple imprisonment for 60 days.
3. On notice, the respondentState appeared to contest the appeal. primarily on the basis of trial court record. The complainant has also joined the hearing on the appeal through counsel Ms. Anjana Prabhakar, advocate.
4. I have heard Shri M. C. Sharma, Advocate for appellant and Shri Inder Kumar, Additional Public Prosecutor for State assisted by Ms. Anjana Prabhakar, advocate for the complainant at length. I have gone through the trial court record.
5. It is apposite at this stage to take note, briefly, of the background facts as emerging from the complaint on the basis of which FIR was registered as also the evidence that came to be mustered on both sides during the trial which has led to the impugned judgment and order on sentence being passed.
6. It has been the case of the prosecution, and admitted by the appellant during the trial, that he was engaged to perform office related duties with Sudbhavana Trust which had its office in Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 2 of 18 premises no. C30, Defence Colony, New Delhi110024, the appointment being made effective from 1st April, 1994 on the strength of appointment letter dated 1st April, 1994 proved as document Ex. PW 1/D. Admittedly, the said appointment letter was issued under the signatures of Brigadier (Retd.) P.K. Gopal (PW2), who himself had been a resident during the relevant period of B12, Greater Kailash PartI, New Delhi 110048 and was a trustee in Sudbhavana Trust in which the first informant of the case Lt. General Sushil Kumar (Retd.) (PW1) was the Chief Trustee. It may be added here that the premises from where the office of Sudbhavana Trust was functioning was ordinarily the residence of PW1 Lt. General Sushil Kumar (the first informant). As per the appointment letter (Ex. PW 1/D), the remuneration payable for the services rendered by the appellant was to be Rs. 2250/ (consolidated) besides the actual cost of travels.
7. It has further come as material beyond reproach that, prior to this appointment with Sudbhavana Trust, the appellant had been working as office Incharge in Shatrujit Enterprises Private Limited, an entity having its office in the same property where the trust would run its office from, namely, C30, Defence Colony, New Delhi 110024, ordinarily the residence of PW1. The engagement of the appellant as office Incharge in the said company occured on the basis of appointment letter dated 16.11.1992 issued under the signatures of PW2 Brigadier P. K. Gopal vide document Ex. DW Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 3 of 18 2/A. The appointment letter concerning the said company (hereinafter referred to as "Shatrujit Enterprises") shows that the engagement of appellant was initially for a period of six months, subject to review and on terms including pay at Rs. 3,000/ per month, out of which only Rs. 2,000/ per month with actual expenses (presumably on travel) was to be paid, with Rs. 1,000/ per month, being retained and deposited to be paid along with simple interest of saving bank at the time of discharge. The terms and conditions of the said service also included the right to leave, holidays etc. Noticeably, PW2 signed the said appointment letter issued on behalf of Shatrujit Enterprises as director of the said company. From this, it can be safely inferred (as has even otherwise been admitted), that PW1 and PW2 were together running the two entities, namely Shatrujit Enterprises and Sudbhavana Trust.
8. It appears from the appointment letter (Ex. PW 1/D) that the appellant was also an exserviceman, as he has been described as a Sargeant. In his own evidence as DW2, the appellant explained that he had been earlier working as parttime typist near Savitri Cinema, where PW2 used to come for typing work and upon being satisfied with his work, he had engaged him firstly with Shatrujit Enterprises and later his services were transferred to Sudbhavana Trust, in continuity.
9. The FIR of the case was registered on the basis of complaint that Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 4 of 18 appears to have been handed over in police station Defence Colony on 20.10.1994 under the signatures of PW1. According to the said complaint, which resulted in FIR (Ex. PW 3/A) being registered, PW1 had to leave India for England for some personal errands. While leaving for England on 03.07.1994, he had left two cheque books pertaining to the bank account no. 66244 of Sudbhavana Trust held in Canara Bank, Lajpat Nagar (Main), located in Defence Colony, New Delhi to PW2. According to the version of PW1 and PW2, in these two cheque books, 7 blank cheques leaves were signed by PW1, since he was the only person authorised to operate the said account, so that the dues and disbursement could be taken care of during the absence from India of PW1. It has been submitted that the said 7 cheques included one bearing cheque no. 207702 (Ex. PW 1/A). The first informant returned to India on 16.09.1994, and after checking the account, it was revealed to him that the cheque Ex. PW 1/A had come to be issued during his absence in the name of the appellant, and that the latter had deposited the same in his account no. 126292 held in State Bank of Patiala, Nehru Place Branch, New Delhi and withdrawn/encashed the value thereof.
10.It may be mentioned here that sufficient material has come on record to show beyond all doubts that the cheque Ex. PW 1/A was actually deposited by the appellant for encashment in his aforementioned bank account and credit was given to him to such Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 5 of 18 extent thereagainst on 18.07.1994 and soon thereafter, he made withdrawals to the extent of Rs. 50,000/, firstly by way of cash of Rs. 10,000/ drawn on 25.07.1994 and then Rs. 40,000/ in cash on 26.07.1994. These transactions have been proved by the prosecution through substantive material including the evidence of the bankers of both sides, i.e. of the appellant as well as the complainant. The appellant has conceded the correctness of the evidence to such effect in entirety.
11. The services of the appellant were terminated on behalf of Sudbhavana Trust by its trustee PW2 with effect from 31.07.1994. The evidence in this regard was adduced through document Ex. PW 1/C. Undoubtedly, the said document does not bear signatures of the appellant. But then, the prosecution also relied upon Ex. PW 1/F, a document described as final settlement of accounts concerning the services of the appellant, the evidence confirming that this document was authenticated by the appellant under his own signatures on 01.08.1994. According to this statement of account, Sudbhavana Trust owed Rs. 2099.50ps as the outstanding amount to the appellant. The document appears to have been prepared with the intention that the said amount of money would be paid by way of cheque as spaces for filling up cheque number and other particulars were left blank. It is, however, conceded that a certificate was also given therein to the effect that the appellant had received all his dues and no more money was outstanding Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 6 of 18 towards him by Sudbhavana Trust. This corroborates the evidence of PW1 and PW2 about the outstanding dues of the appellant as calculated on 01.08.1994 vide Ex. PW 1/F having been paid to him in cash.
12.In his complaint Ex. PW 1/B, PW1 informed the SHO Police Station Defence Colony that PW2 had left for London (after his own return from abroad on 16.09.1994) and the transaction concerning the cheque Ex. PW 1/A had aroused his suspicion. He had made inquiries on telephone from PW2 who had shown ignorance in such regard. Further inquiries from the concerned bank revealed that the value of the cheque had been deposited in the account of the appellant. PW1, therefore, lodged a report seeking investigation into the matter alleging that the appellant had taken advantage of his absence and finding the occasion had removed the blank cheque Ex. PW 1/A, drawn it in his favour and encashed the amount and (thereby) committed criminal misappropriation in such regard.
13.Upon registration of the FIR, the investigation was taken up during which relevant documents were collected by the investigating agency from the concerned banks. The appellant also joined investigation. His specimen handwriting was collected besides the specimen signatures of PW1. The questioned writings Q1 to Q3 as appearing on cheque Ex. PW 1/A which related to the name of payee, amount of the cheque in words and figures were sent to Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 7 of 18 Forensic Science Laboratory (FSL) for opinion. The handwriting expert, however, expressed inability to given definite opinion as to the authorship of the questioned writings on the basis of available material. It is clear that the authorship of the said contents of the cheque cannot be attributed to the appellant.
14. On the basis of material collected, charge sheet was laid seeking trial of the appellant for offences under Sections 381/408/420 IPC. The Magistrate took cognizance and issued process. After presence of the appellant had been secured and compliance made with section 207 Cr.P.C, he was put to trial on charge for offences under Sections 381/408/420/467/471 IPC framed on 04.09.2001 by Sh. Chandra Shekhar, Metropolitan Magistrate to which appellant pleaded not guilty.
15.In the course of trial, the prosecution led evidence by examining, in all, nine witnesses which would include Lt. General Susheel Kumar (Retd.) (PW1), the first informant; Brigadier (Retd.) P. K. Gopal (PW2), one of the trustees; HC Sripal Singh, (PW3), the MHCM who handed over the documents to Ct. Basant Ram for depositing with FSL for report; ASI Singh Raj (again numbered as PW3), the duty officer who recorded the case FIR; HC Sripal Singh (PW4), MHCM; Harsh Vardhan (again numbered as PW4), Sr. Scientific officer who gave FSL report; Birendra Kandulna, (also again numbered as PW4), the bank Manager of bank where appellant was having his account; Ashok Rai Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 8 of 18 Chaudhary (PW5), Bank Manager of the bank where Sudbhavana Trust was having its account; and Inspt. Dinesh Kumar (PW6), the investigating officer of the case.
16.After the prosecution had concluded its evidence, the statement of the appellant was recorded under Section 313 Cr.P.C. on 06.08.2011 in which he claimed to be innocent and falsely implicated. It must be mentioned here that during the course of trial, particularly at the stage of recording of evidence for the prosecution as also in his statement under Section 313 Cr.P.C., the appellant took the plea that he had never committed theft or criminal breach of trust in respect of the cheque in question and that, instead, the cheque had been handed over to him by PW2 towards the dues which included the outstanding Rs. 1,000/ per month that had been retained. He, thus, claimed that the cheque was taken over by him from PW2 lawfully and had deposited the same as legal remuneration. In this context, he claimed that his services had been illegally terminated and that he had threatened PW2 with legal action in the labour court and, therefore, had gone with his wife (DW1) to the residence of PW2 where the cheque was handed over. He submitted that even after the cheque had been encashed, he had continued to work with the complainant for a few days. He insisted that he had availed the benefit of credit on the basis of cheque Ex. PW 1/A in his own rights.
17. The appellant led evidence in defence by examining his wife Smt. Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 9 of 18 Pushpa Nayar (DW1) and examined himself as DW2, mainly in an effort to prove the above facts as set up in the defence plea.
18.The learned Magistrate was not satisfied with the defence evidence and rejected the same. He found the prosecution evidence to be worthy of reliance. He, thus, held the appellant guilty for offences under Sections 381, 408 and 471 IPC.
19.Though, the appellant had also been put to trial for offences under Sections 420 and 467 IPC, no finding in such regard appears to have been recorded by the trial court. From this, it has to be assumed that the learned Magistrate did not find sufficient material to hold the appellant guilty for the said offences. The appellant must, therefore, be presumed to have been acquitted for the said offences.
20.At the out set, it must be said that the charge under Section 420 IPC, even otherwise, could not have been framed as there is no material indicating the cheque to have been taken by the appellant through deception or on the basis of some misinterpretation. Further, in view of the report of FSL, wherein the authorship of the questioned parts of the cheque Ex. PW 1/A has not been connected with the appellant, the charge under Section 467 IPC could not stick. The result before the trial court on the charge for these two offences is, thus, the correct conclusion.
21. At this stage, I must observe that the offence under Section 381 IPC and Section 408 IPC cannot coexist. If theft is proved, there Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 10 of 18 can never be a criminal breach of trust and vice versa. There is nothing on record to show that the cheque was actually entrusted in the hands of the appellant. In absence of entrustment, the criminal misappropriation, or criminal breach of trust, could not be inferred. The learned Magistrate, in the impugned judgment, seems to have overstretched the reasoning to pin down the appellant with culpability with offence under Section 408 IPC by observing (in para 45) to the effect that being in the employ of the complainant trust, he had dominion over the trust property. In my considered view, having regard to the capacity in which he was engaged, there is no scope for such dominion to be inferred or concluded against him. In these circumstances, even on the basis of material submitted by the prosecution, the charge under Section 408 IPC was incorrect and cannot result in any conviction.
22.The case, thus, has to be decided from the perspective of the charges under Section 381 and 471 IPC only.
23.The facts which stand proved, and virtually admitted, include the following:
(a) The appellant was engaged initially with Shatrujit Enterprises with effect from 16.11.1992 as office Incharge vide Ex. D W2/A at a salary of Rs. 3,000/ out of which Rs. 1,000/ per month was retained as security to be paid at the time of discharge;
(b) PW1 and PW2 who were engaged in the affairs of Shatrujit Enterprises decided to transfer Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 11 of 18 the services of the appellant to Sudbhavana Trust with effect from 01.04.1994 when appointment letter Ex. DW1/D was issued, though terms of engagement stood modified, in that the appellant was to receive, instead of Rs. 3,000/ per month, only Rs. 2250/ as consolidated pay per month. Noticeably, the condition of retention of Rs. 1,000/ per month had come to an end upon services with Shatrujit Enterprises having ceased with effect from 31.03.1994;
(c) The cheque Ex. PW 1/A for Rs. 52,000/ bears the date 12.07.1994 and was deposited by the appellant in his own bank account and received credit there against on 18.07.1994, whereafter he had withdrawn an amount to the tune of Rs. 50,000/ there from almost immediately, i.e. by 26.07.1994. The credit for the said cheque was given to him by debit of the equivalent amount against the bank account of Sudbhavana Trust against which the cheque purported to have been issued under the signatures of PW1; and
(d) The services of the appellant with Sudbhavana Trust came to an end with effect from 31.07.1994 and he settled the account with PW2 by receiving Rs. 2099.50ps on 01.08.1994, certifying vide Ex. PW 1/F that no further money was outstanding in his favour.
24. The evidence of PW1 and PW2 about PW1 having left for abroad on 03.07.1994 and to have returned on 16.09.1994 has gone unimpeached. From this, and other material, it can safely be concluded that the evidence of PW2 that he was looking after the affairs of Sudbhavana Trust during the absence of PW1 deserves Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 12 of 18 to be believed. There has been no effort worth the name to assail the word of PW1 and PW2 about the former having handed over the record including the cheque books of the bank account of Sudbhavana Trust to the latter for looking after the affairs of Sudbhavana Trust during his absence.
25.The evidence of PW2 unmistakeably shows that the appellant as a clerk, engaged by Sudbhavana Trust, was discharging his duties during the absence of PW1 under the control of PW2. From this, it can be inferred that since PW2 was functioning from his own residence, the appellant would also be reporting for duties and discharging his responsibility from the temporary office of Sudbhavana Trust at the residence of PW2. In fact, the suggestions given by the appellant to PW2, and his own defence evidence, only corroborate that the appellant had access to the office of PW2 at his residence.
26.In view of the above, the argument of the counsel for the appellant that the prosecution has not proved as to how the appellant could have stolen the cheque from the almirah of PW2 deserves to be rejected as devoid of substance.
27. Undoubtedly, the case is not supported by any direct evidence of theft of cheque. No one actually saw the appellant stealing the cheque from the almirah of PW2. In this regard, the circumstances that have been proved speak for themselves. The cheque is shown to have been issued on 12.07.1994. It was Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 13 of 18 deposited by the appellant in his own account immediately thereafter resulting in credit being given by the banker on 18.07.1994. That was the period when the appellant was admittedly still in the employ of Sudbhavana Trust. He admittedly was reporting for duty in the said office till 31.07.1994.
28.There is nothing on record to substantiate the claim of the appellant that the cheque represented the dues outstanding towards him from Sudbhavana Trust. Even if it is assumed that despite the settlement of account vide Ex. PW 1/F, the appellant was entitled to return of Rs. 1,000/ per month as security by Shatrujit Enterprises, which would be for the period of 16.11.1992 to 31.03.1994, and even if simple interest thereupon was to be added, the amount would not accrue to the extent of Rs. 52,000/. It must be added here that the appellant had availed some loan which was also outstanding. An admission in this regard came hesitantly during the course of crossexamination of the appellant at the stage of defence evidence. If the outstanding loan was to be deducted, the amount payable would get reduced even further from what would have to be paid for refund of the security amount.
29.The material on record, thus, leaves no room for doubt that, by no calculation, the appellant could have claimed Rs. 52,000/ as an amount due towards him by Sudbhavana Trust as on 12.07.1994. This itself is sufficient to demolish the defence plea that the cheque Ex. PW 1/A was handed over on such account by PW2 to him. Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 14 of 18
30.From the above it naturally follows that the cheque came in the hands of the appellant unauthorisedly.
31. As observed earlier, there is no direct evidence available of theft. But then, the circumstances pointedly indicate that the cheque could not have come in the hands of the appellant except by way of theft for facilitating which he had due access to the office of PW2 during the relevant period. The cheque book was handed over to PW2 by PW1 on or about 3rd July, 1994. The cheque had surfaced on 18.07.1994 when credit was received there against by the appellant in his bank account.
32.From the above set of facts, it can safely be presumed that the appellant only would have been the person who would have picked up the said cheque from the office of PW2. Given the fact that the cheque did not represent the lawful remuneration due to the appellant, it naturally follows that the cheque was picked up by the appellant from the office of PW2 with dishonest intention of gaining wrongfully. Given the admitted position that he was engaged during the relevant point of time as clerk, his complicity for the crime under Section 381 IPC has been duly brought home and rightly so concluded by the trial court.
33.In the above facts and circumstances, the appellant has not been able to give any reasonable explanation as to why he encashed the cheque by depositing it in his bank account. Since the cheque does not represent his lawful dues, it has to be concluded that he Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 15 of 18 arranged for the cheque to be prepared so as to represent it to be an instrument issued in his favour for Rs. 52,000/. This would render the cheque a fabricated or forged document. The use of the cheque for encashment through the bank, thus, constituted offence under Section 471 IPC for which the appellant has been rightly held guilty by the court below.
34.In above facts and circumstances, the impugned judgment is partially modified. The conviction for offence under Section 408 IPC is set aside and the appellant is acquitted of the said charge. The findings of the trial court for offences under Sections 381 and 471 IPC, however, stand affirmed and sustained. The appeal of the appellant to that extent is dismissed.
35.Coming to the question of sentence, the counsel for the appellant argued that the appellant is 51 years old who had earlier served in Air Force and was honourably discharged from there. He submitted that the appellant has not been involved in any criminal activities either prior to or after the registration of this FIR. He submitted that the appellant has faced a long trial of over 19 years and has already deposited Rs. One lac as compensation in terms of directions of the trial court.
36.Per contra, the State argued that the case involves grave offences, particularly as an element of breach of trust is inherent wherein the clerk engaged by the trust committed theft so as to gain wrongfully. The Additional Public Prosecutor submitted that the Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 16 of 18 sentence awarded by the court below is well justified and there is no need for any modification.
37. On the other hand, counsel for the complainant has pointed out that the complainant was also constrained to face undue harassment as he had to ensure logical conclusion of the case registered at his instance by assisting the prosecution all through out with the counsel engaged for such purposes. He submitted that the complainant has also suffered in the process and deserves closure with punishment commensurate with the crime meted out to the offence.
38.I have given my considered thoughts to the question of sentence, in the light of submissions from all sides, and the facts and circumstances of the case.
39.Since the appellant stands acquitted on the charge for offence under Section 408 IPC, the sentence awarded by the trial court for the same stands set aside.
40.In my considered view, for the delayed conclusion of the trial, the appellant will also have to share the blame. The proceedings were held up at some stages on his account.
41. In my view, given the delayed conclusion, the sentence for rigorous imprisonment of one year with fine of Rs. 1,000/ each for offences under Sections 381 and 471 IPC should meet the ends of justice. The order of compensation as awarded by the trial court, however, must be maintained. Both the substantive sentences Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 17 of 18 shall run concurrently. The order on sentence passed by the trial court is modified accordingly.
42.Bail bonds are discharged. The appellant is taken in custody. He be sent to jail under appreciate warrant to undergo the sentence.
43.The amount of compensation, as has already been deposited with the trial court, shall be released to the complainant after the expiry of the period of revision/appeal.
44. A copy of the judgment be given free of costs to the appellant.
45.The Trial Court record be returned with copy of this judgment.
46.The file of the criminal appeal be consigned to Record Room. Announced in open Court today on this 30th day of August, 2013. (R.K. GAUBA) District & Sessions Judge (South District) Saket/New Delhi Crl. Appeal No. 79/2012 Shashidharan Vs. State Page 18 of 18