Delhi District Court
Pinakin Dinesh vs (1) The State (Govt Of N.C.T Of Delhi) on 20 January, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Appeal No.26/11
(Unique No.02406R0258322011)
Pinakin Dinesh
S/o Sh. Din Bandhu Dinesh
R/o B-30, Gulmohar Park,
New Delhi.
..........Appellant
Versus
(1) The State (Govt of N.C.T of Delhi)
.........Respondent
Date of Institution : 07.10.2011
Date of Pronouncement Order : 20.01.2012
ORDER
1. This Appeal has been filed u/s 374 (3) of Cr P.C. against the impugned Order dated 21.09.2011, by which, the Ld. Trial Court has held the Appellant guilty of offence u/s 420 read with Section 511 IPC and Section 411 IPC and sentenced him to undergo Rigorous imprisonment of two years' alongwith fine of Rs. 1,000/- C.A.26/11 Pinakin Dinesh vs. State 1/38 for offence u/s 420 IPC read with Section 511 IPC and a further sentence of RI of two years alongwith fine of Rs. 1,000/- for offence u/s 411 IPC and in default of payment of fine to undergo further SI of 20 days. The sentences were directed to run concurrently.
2. On 29.08.1999, a first information report in respect of non cognizable offence was registered under Section 155 Cr.P.C at 2:45 p.m. on the statement of J.D. Tripathi, an officer of Allahabad Bank, Udai Park, New Delhi, wherein it is recorded that on 28.08.1999 at about 4:00 p.m. a draft book having 15 blank drafts in Book No. 389636 to 389650 has been lost and despite search the same could not be traced. Sh. J.D. Tripathi had made the statement at Police Post, Gulmohar Park, New Delhi.
3. On 31.08.1999, Sh. Mahavir Singh Saroha, Senior Manager, Anand Lok Branch of Allahabad Bank gave a written complaint to the Police Chowki Incharge of C.A.26/11 Pinakin Dinesh vs. State 2/38 Gulmohar Park. It was stated in this written complaint regarding some letter dated 29.08.1999 by which misplacement of Draft Book No. 389636 to 389650 was intimated to the Police. Further to it, it was stated that on 31.08.1999 at around 6:00 p.m, one person, who introduced himself as Dinesh, Proprietor of M/s Casio India, rang up the zonal office of Allahabad Bank at Parliament Street, New Delhi and informed that on 30.08.1999, one M/s Macro Dot Telecom of D-24/I, Gautam Nagar, had handed over a draft No. 389638 for Rs.2.45 crores dated 30.08.1999 in favour of M/s Casio India. When a Representative of the Company carried the draft for being deposited in the account in Sakura Bank, Connaught Place, at 12:00 noon on 31.08.1999 , he found the draft to be missing from his custody. To prevent the payment of the said draft, he had disclosed this information to the Zonal Office as the Anand Lok Branch was closed on 31.08.1999 due to a weekly holiday. He further informed the Zonal Office that photocopy of the said draft was in his possession and on C.A.26/11 Pinakin Dinesh vs. State 3/38 this when an officer was deputed from the Zonal Office, who contacted Dinesh at his residence B-30, Gulmohar Park at around 7:30 p.m on 31.08.1999, the copy of the draft was not found with Dinesh. Sh. M.S. Saroha/ complainant thus prayed for apprehending the culprits and taking immediate action in the matter. On this complaint, a case was registered under Section 380/468 IPC.
4. The appellant Pinakin Dinesh and co-accused Prabhu Dayal were arrested and their separate disclosures were recorded by the Police. The draft in question bearing No. 389638 for Rs.2.45 crores, an unsigned draft No. 389637 for Rs.2.45 crores and other blank unused drafts from 389639 to 389650 were recovered at the instance of the appellant. All these drafts were recovered vide recovery memo Ex.PW1/B. Apart from it, another genuine draft of Rs.1,000/- bearing No. 123962 in favour of Casio India Company Ltd., Mumbai was also recovered by the Police from the appellant Ex.PW1/C. C.A.26/11 Pinakin Dinesh vs. State 4/38
5. After completion of investigation, charge-sheet was filed by the Police and on 05.11.2003, the appellant was charged under Section 420/511 IPC and 411 IPC. The co-accused Prabhu Dayal was charged under Section 468 IPC. Both the accused persons denied the charge and claimed trial. To prove its case, prosecution examined eleven witnesses, out of which seven were public witnesses and three were police witnesses and one was from C.F.S.L. In order to appreciate the case of the prosecution, relevant gist of the depositions of the prosecution witnesses is given below:-
5.a PW-1 M.S. Saroha, Chief Manager, Allahabad Bank, deposed that on 28.08.1999 at about 5:00 p.m, an official of the bank informed him about missing of a Draft Book from the counter of the bank and when the same could not be searched despite efforts the matter was reported to the higher authorities as well as to the Police.
He further stated that on 31.08.1999, it was a holiday in the bank and in the evening, he received a telephone call C.A.26/11 Pinakin Dinesh vs. State 5/38 from S.P. Rai Chaudhary, Sr. Manager, who asked him to reach the Police Post, Gulmohar Park. There, Police called one person whose name he could not remember but it was perhaps Dinesh. Police made enquiries from him in the absence of this witness. The said person was then taken by the Police somewhere but he did not accompany the Police. Thereafter, police got 6-7 loose drafts in the Police Post and he was asked by the Police to make a formal complaint which he made and which he proved as PW-1/A. He showed his inability to identify the said person as he had seen him on that day only for 2 seconds. He further stated that Police had taken his signatures on certain memos which he could not read before signing. This witness was cross-examined by the Ld. A.P.P wherein he refused the suggestion that the recovery of drafts vide Ex.PW1/B was in his presence. He further refused the suggestion regarding recording of disclosure statement of appellant in his presence. He even refused the suggestion of recording of the statement under Section 161 Cr.P.C.
C.A.26/11 Pinakin Dinesh vs. State 6/38
5.b PW-2 S.P. Rai Chaudhary stated that on 25.08.1999, he received an information from M.S. Saroha regarding theft of one Draft Book. On the same day in the evening, he received a telephone call from the Casio Company that a draft of Rs.2.5 crores had been lost. On being asked as to who had handed over the draft to the company, name of Pinakin Dinesh was told to him. Becoming suspicious, he approached Police Post, Gulmohar Park. One Constable went to the house of the appellant and recovered the lost draft together with lost draft book and he brought Pinakin Dinesh in the Police Post, Gulmohar Park. In his cross-examination by the appellant, he stated that he had received the call that draft of Rs.2.5 crores had been lost on 31.08.1999 and not on 25.08.1999. However, it was not so recorded in the statement under Section 161 Cr.P.C. He further stated that he had not told to the Police at the time of his statement under Section 161 Cr.P.C that one Ct. went to the house of the appellant, who recovered the lost draft and brought him to the Police Post, Gulmohar Park C.A.26/11 Pinakin Dinesh vs. State 7/38 alongwith the lost Draft Book which was recovered from the house of the appellant.
5.c PW-3 Anil Kumar Yadav, Senior Manager, Allahabad Bank, deposed that in August 1999, one day the Routine Officer had informed him about the missing of Draft Book containing 17 draft leaves. This witness was cross-examined by the Ld. A.P.P and he stated to have not given any statement to the Police. He refused the suggestion that on 28.08.1999, the appellant had come to the bank or on 30.08.1999 for getting a draft of Rs.1,000/- issued.
5.d PW-4 Harish Chand was examined by the prosecution, who was posted as Clerk cum Cashier in the Allahabad Bank in Anand Lok Branch at the relevant time. He stated to be not knowing anything about this case. When he was cross-examined by the Ld. A.P.P, he stated to have not given any statement to the Police. C.A.26/11 Pinakin Dinesh vs. State 8/38
5.e PW-5 Dinesh Kaushik, who was working as Sr. Manager, Finance in Casio India Ltd at the relevant time, was examined by the prosecution, however, he also told nothing about this case and was cross-examined by the Ld. A.P.P. He refused to have given any statement to the Police. He denied the suggestion that on 30.08.1999 at about 9:00 p.m, Ex-M.D. Yugi Tegani had handed him over a draft of Rs.2.5 crores and had told him that the appellant had given this draft. He further denied the suggestion that the draft was handed over by him to Raka Gahloth on 31.08.1999 for depositing it in Sakura Bank. He further denied the suggestion that Raka Gahloth had informed him about misplacing the said draft. He also denied the suggestion to have gone to the house of the appellant or to have called Allahabad Bank, main branch Parliament Street regarding missing of draft No. 38938 dated 30.08.1999 of the same amount and for its 'stop payment'.
5.f PW-6 Arun Mehta was working as Senior C.A.26/11 Pinakin Dinesh vs. State 9/38 Manager at Zonal Officer, Allahabad Bank in the year 1999. He stated that in the said year, there was a stolen draft which was presented for clearing but the same was not paid and the bank did not suffer any loss in that case. He further stated that he was asked to visit some house in the locality by his colleague S.K. Rai Chaudhary but he does not remember the address of that house. This witness was also cross-examined by the Ld. A.P.P wherein he stated to not remember to have visited the house of appellant at B-30, Gulmohar Park or to have met the appellant. He denied the suggestion that he demanded a photocopy of the draft of Rs.2.45 crores from the appellant. He also denied the suggestion to have identified the appellant in the Police Post or to have refused to give the photocopy of the draft of Rs.2.45 crores. He also refused the suggestion that he had met with Dinesh Kumar at B-30, Gulmohar Park and he refused to give him a photocopy of the draft.
5.g PW-7 Raka Gahloth was examined, who stated C.A.26/11 Pinakin Dinesh vs. State 10/38 that he was working as office boy in Casio India Ltd in the year 1999. He stated to not remember about missing of any draft. He was cross-examined by the Ld. A.P.P wherein he stated to have not given any statement to the Police. He denied the suggestion that on 30.08.1999, the appellant came to their company and handed over a draft of Rs.2.45 crores. He also denied the suggestion that accused had offered him a job in his company. He denied the suggestion that when he reached the Sakura Bank, he found the draft of Rs.2.45 crores missing from his scooter dickey. The draft of Rs.2.45 crores was shown to this witness but he could not identify the same.
5.h PW-8, PW-9 and PW-11 were police witnesses where PW-8 was HC Bhagirath Prasad and PW-9 was IO/ Addl. SHO Akhilesh Yadav and PW-11 was Inspector Virender Jain. PW-8 proved the disclosure statement of the appellant as Ex. PW8/A, his arrest as Ex.PW8/B, his personal search as Ex.PW8/C, recovery of bank draft book and its seizure vide memo Ex. C.A.26/11 Pinakin Dinesh vs. State 11/38 PW1/B, recovery and seizure of original bank draft of Rs.1,000/- as Ex.PW1/C. PW-9 being IO proved his role during the investigation. He proved his endorsement as Ex.PW9/A on the complaint of M.S. Saroha (Ex.PW1/A) and sending the same to PS through Ct. Satish for registration of case. He further proved the recording of disclosure statement of appellant as Ex.PW8/A, arrest of the appellant as Ex.PW8/B and his personal search as Ex.PW8/C. He also proved seizure of drafts vide memo Ex.PW1/B and seizure of draft of Rs. 1,000/- as Ex.PW1/C. PW-11 deposed about depositing of the drafts No. 389638 to 389650 and sample handwriting for C.F.S.L. examination as Ex. PW8/G-1 to G-14. He further deposed regarding collection of F.S.L. Report (Ex.PW10/A) and filing of charge-sheet in the matter.
5.i PW-10 Dr. S.C. Mittal, Principal Scientific Officer, C.F.S.L was examined, who proved his Report as Ex.PW10/A wherein he had opined that handwriting on C.A.26/11 Pinakin Dinesh vs. State 12/38 drafts No. 389637 and 389638 was that of co-accused Prabhu Dayal.
6. The circumstances appearing against the appellant and the co-accused were put to them in their examination under Section 313 Cr.P.C. Ld. Trial Court after taking into consideration the entire evidence on record came to the conclusion that PW-2 S.P. Rai Chaudhary had supported the prosecution case that he received information about theft of the draft in question from Casio Company. This was corroborated from the statement of PW-8 HC Bhagirath and PW-9 Addl. SHO, Akhilesh. It was further held by the Ld. Trial Court that although the complainant PW-1 and PW-3 to 7 turned hostile but nevertheless the testimony of PW-1 corroborates and lends credence to testimony of other witnesses, specially, PW-2 and the IO. Ld. Trial Court further relied upon the deposition of PW-6 Arun Mehta to prove that the stolen draft was presented for clearing but the same was not paid. The recovery of the drafts at the C.A.26/11 Pinakin Dinesh vs. State 13/38 behest of the appellant was held to be proved unambiguously in pursuance to the disclosure which was held to be admissible under Section 27 of the Evidence Act. Statement of PW-2, PW-8 and PW-10 was relied upon by the Ld. Trial Court to prove the identity of the accused, disclosure and the seizure of the demand drafts in question. Thus, the Ld. Trial Court held the appellant guilty of having committed the offence under Section 420 read with Section 511 IPC and Section 411 IPC vide its judgment dated 21.09.2011 and by the order dated 28.09.2011, the sentence was awarded to the appellant and the co-accused Prabhu Dayal.
7. The present appeal has been filed by the convict Pinakin Dinesh. Sh. Sidharth Luthra, Ld. Sr. Advocate, argued on behalf of the appellant and took me through the statement of the witnesses. It has been argued that all the public witnesses except PW-2 turned hostile and have not supported the prosecution case but despite that the Ld. Trial Court has convicted the appellant, relying on C.A.26/11 Pinakin Dinesh vs. State 14/38 the deposition of police witnesses. Ld. Counsel has raised doubt about the place of recovery of the bank draft in question inasmuch as PW-8 Bhagirath Prasad had stated that the recovery of the draft was from the shop of the appellant. However, his statement regarding recovery cannot be relied upon as he could not tell the position of the drawer (right side or left side) on the table from which the draft in question and the draft booklet was recovered. He also could not tell the size of the table or the size of the office from where the said recovery was made. It was further stated that most of the questions were answered by this witness saying 'I do not remember'. Further, it was argued that non-joining of independent public persons in the recovery proceedings casts serious doubts about the seizure of the draft in question. Ld. Counsel has further stated that there is no investigation regarding signatures on the draft in question and signatures on the draft of Rs.1000/- are different from those appearing on the draft of Rs.2.45 crores. C.A.26/11 Pinakin Dinesh vs. State 15/38
8. On the other hand, Ld. Addl. P.P has supported the impugned judgment and has stated that PW-2, PW-8 and PW-9 were the main witnesses of the prosecution and they have supported the prosecution case to the hilt. It has been argued that the judgment of the Ld. Trial Court is based on appreciation of evidence led before it and the Ld. Trial Court had the benefit of observing the demeanor of the witnesses and thus concluded that the appellant was guilty of having committed the offence under Section 420/511 IPC and under Section 411 IPC and keeping in view the gravity of the offence, the Ld. Trial Court had handed out befitting sentence on the appellant, declining the request of probation of the appellant. The Ld. Addl. PP has thus prayed for dismissal of the appeal.
9. I have heard both the sides and have perused the TCR which was summoned. The powers of the appellate court are provided u/s 386 Cr.P.C and particularly against an appeal against conviction - the same are provided C.A.26/11 Pinakin Dinesh vs. State 16/38 under sub section (2) of Section 386 Cr.P.C. The law regarding the power of the appellate court in an appeal against conviction is well settled now. In a criminal appeal a duty is enjoined upon the appellate court to re- appreciate the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone - Rama vs. State 2002 (4) SCC 571. In Chinnamal vs. State 1997 (1) SCC 145, it was held that an appeal is to be decided on the basis of the evidence adduced by witnesses during the trial. The entire evidence is available to the appellate court to consider the guilt or innocence untrammeled by what the trial court said - Bhaskaran Nair vs. State of Kerala 1991 Cr LJ 23 Kerala. Keeping these broad principles in mind, I now proceed to discuss the evidence available on record.
10. Let us see what was the charge which the appellant was facing and was asked to defend. A charge u/s 420/511 IPC was leveled against the appellant on 5.11.203 in the following terms:
C.A.26/11 Pinakin Dinesh vs. State 17/38 "That on 31.8.1999 at Allahabad Bank at Udai Park Market, New Delhi within the jurisdiction of PS Defence Colony, you (Pinakin Dinesh) dishonestly attempted to cheat the bank by presenting a stolen and forged demand draft bearing no. 389638 for Rs. 2.45 crore for encashment of the said amount, and thus, you committed an offence punishable u/s 420/511 IPC within my cognizance."
11. Thus, the charge was that the appellant presented a stolen and forged demand draft for Rs. 2.45 crore for encashment of the said amount. Incidentally, no such evidence was produced that the said draft of Rs. 2.45 crore was ever presented for encashment by the appellant. On the contrary, the case of the prosecution is that the said demand draft of Rs. 2.45 crore and other stolen draft leaves were recovered from the drawer of the table of the appellant. When the drafts in question were recovered from the table drawer of the appellant, where was the question of appellant presenting the Demand C.A.26/11 Pinakin Dinesh vs. State 18/38 Draft of Rs. 2.45 crore for encashment? The prosecution case was that the said demand draft of Rs. 2.45 crore was reported lost by somebody from Casio Company which was given by somebody to it. The prosecution has not been able to establish as to who was the said person who handed over the said draft of Rs. 2.45 crore to Casio Company. According to prosecution case, Raka Gahlot was the person who had to deposit the said draft in Bank, from whom it was lost and hence, he was a material witness of prosecution. However, during the course of trial the said Raka Gahlot did not support the prosecution. It was the prosecution case that the said draft was given to Raka Gahlot for being deposited in Sakura Bank in Casio company's account. But in his deposition in Court he stated that he does not remember about any lost draft. He further stated that he was not given any such draft for being deposited. Further, the prosecution case was that the said draft was found to be missing from the dickey of his scooter and this too was refused by this witness during his court deposition. It C.A.26/11 Pinakin Dinesh vs. State 19/38 was then the case of the prosecution that the appellant stole the draft in question from the scooter dickey of Raka Gahlot but the prosecution miserably failed to prove this stealing by the appellant. When this witness says that he does not remember anything about any lost draft, a presumption arises that no such draft was ever lost, as misplacement of a draft of such high value (Rs. 2.45 crores) is not an ordinary incident and would remain ink in the memory of at least the person from whose custody it is lost. In this manner, the handing over of the draft and its stealing by the appellant has not been proved by the prosecution. Apart from it, the prosecution has also not placed on record any evidence, either documentary or oral to prove the motive of the appellant for doing the offence. What was the purpose of the appellant in giving the said Demand Draft to the Casio company in the first instance and then why the said draft was stolen by him, if he had already given the same to the Casio Company. The prosecution has not proved any invoices or purchase orders having been placed by the C.A.26/11 Pinakin Dinesh vs. State 20/38 appellant on the Casio Company and in settlement of the liability arising out of this transaction, the said demand draft was given by the appellant to Casio Company. Nor the prosecution has proved that the draft of Rs.2.45 crores was given by the appellant to Casio Company in settlement of any existing outstanding liability. PW-5 Dinesh Kaushik was examined on behalf of Casio Company and he was working as Senior Manager, Finance and Accounts in Casio India Company Ltd in the year 1999. This witness, being dealing with the accounts at a senior position, would have been the right person to say about the financial liability of the appellant towards the Casio Company. However, this witness does not say anything in this regard, meaning thereby that there was no financial liability on the appellant towards the Casio Company. We have to keep in mind that it is not the Casio Company, who is the complainant, who had complained about any cheating by the appellant against them. The case started at the complaint of Allahabad Bank. To reiterate, no PW has supported the prosecution C.A.26/11 Pinakin Dinesh vs. State 21/38 case of firstly giving of the said draft by the appellant to Casio Company and then its stealing by him. It has already been noticed that nothing has been brought on record to prove that the appellant had presented the forged bank draft of Rs. 2.45 crore for encashment of the said amount. Neither any PW has stated so that the appellant ever presented the said demand draft for encashment nor any such pay-in-slip has been filed, much less proved, by which the appellant had made such an attempt by presenting the said demand draft for encashment. It is general practice of the bank that whenever an instrument is presented for encashment, a bank rubber stamp showing its presentation in the bank, is affixed on the back side of the instrument. The bank draft in question Ex.P-3 has been perused and on this also, there is no such stamping, to show that it was ever presented for clearing. In these circumstances, the offence u/s 420 IPC cannot be made out against the appellant and the findings of the Ld. Trial Court converse to it, cannot be sustained.
C.A.26/11 Pinakin Dinesh vs. State 22/38
12. So far as offence of attempt to commit cheating is concerned, the law on the point of 'attempt' is clear. To constitute an offence, first of all, there is planning followed by preparation and then an attempt is made in the direction of committing the offence. If the attempt succeeds, the offence is said to be done which is penal.
So far as penology is concerned, law does not provide that only a successful attempt attracts penal liability and not the unsuccessful attempt. In other words, even if an attempt is made by the offender to commit an offence, even the said attempt is punishable at law irrespective of the success or failure of the said attempt. If the attempt succeeds, a stringent punishment has been provided but if the attempt fails, still a punishment has been provided, though, at a mild scale. If an offence is committed, it is not difficult to decide the same and award punishment in accordance with law for the offence. However, the difficulty arises when the offence is not completed and falls short of it. It is to be decided as to whether the acts done by the offender falls within the realm of C.A.26/11 Pinakin Dinesh vs. State 23/38 'preparation' or exceeds the same and amount to 'attempt' so as to attract penal liability. It goes without saying that if the acts done by the offender only amount to 'preparation' the same attracts no penal liability but if it crosses the stage of preparation, an 'attempt' to commit the offence is said to be done, which provides for a punishment. The moot question which arises to consideration at this stage is what is that dividing line which separates the acts already done by the offender from the stage of 'preparation' to the stage of 'attempt'. The word 'attempt' has not been defined in the Indian Penal Code. Whether the acts already done by the accused amounts to an 'attempt' to commit a particular offence, is purely a question of fact, to be decided taking into consideration the steps already taken and the steps which are necessary to be taken to complete the offence. In 'Abhayanand Mishra vs. State of Bihar', AIR 1961 SC 1691, the Hon'ble Supreme Court in Para 24 summarized its views about the construction of Section 511 IPC as under:-
C.A.26/11 Pinakin Dinesh vs. State 24/38 "Para 24. ........................ A person commits the offence of "attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."
13. In 'Malkeet Singh vs. State of Punjab', 1969 (1) SCC 157, a three judges bench of the Hon'ble Supreme Court on Section 511 IPC held that the test for determining whether the act of the appellant constituted an 'attempt' or 'preparation' is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless."
14. Taking guidance from the aforesaid golden words, C.A.26/11 Pinakin Dinesh vs. State 25/38 if the facts of this case are tested, it is found that the acts already done would fall within the territory of 'preparation' only and not amount to an 'attempt'. The case of the prosecution is, at the cost of the repetition is that the bank draft of Rs. 2.45 crores was recovered from the drawer of the table of the appellant in midnight. As already noticed, the prosecution has not been able to prove that the said demand draft was presented by the appellant for encashment with the bank. The very location of the bank draft at the time of its recovery (table drawer) and the timing of the recovery(midnight), shows that the overt acts done so far remained in the zone of only 'preparation'. The acts would have become 'attempt' only if the draft in question had been presented to the bank for encashment, thereby taking it out of the control of the accused. As noted earlier, neither any documentary evidence showing presentation of the draft in question has been brought on record nor any public witness has deposed anything in this regard and in the circumstances the overt acts done would not amount to C.A.26/11 Pinakin Dinesh vs. State 26/38 'attempt' but would only fall within the four corners of 'preparation'-which does not attract penal action. Hence, the irresistible conclusion is that the offence under Section 420/511 IPC is not made out.
15. The other charge faced by the appellant was under
Section 411 IPC which reads as under:-
" You got recovered the stolen demand pay order cheques bearing No. 380637 to 389650 from your office 24D/1, Gautam Nagar, New Delhi belonged to Allahabad Bank which you retained or received knowing or having reason to believe that the same was stolen property and thus you committed an offence punishable under Section 411 of the IPC and within my knowledge."
16. Section 411 IPC has been defined as under:-
"411 -Dishonestly receiving stolen property-
Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either C.A.26/11 Pinakin Dinesh vs. State 27/38 description for a term which may extend to three years, or with fine, or with both."
17. Decision on this charge depends upon the recovery of draft Nos. 389637 to 389650 from the custody of appellant. Case of the prosecution is that these drafts were recovered at the disclosure of the appellant from the drawer of the table in the office of the appellant. The recovery memo by which these drafts were seized is Ex. PW1/B. This recovery memo bears the signatures of two witnesses, namely, HC Bhagirath Prashad and M.S. Saroha, Sr. Manager, Allahabad Bank, besides the signatures of the IO and the appellant. It is mentioned in this memo that the appellant in custody voluntarily got recovered the demand drafts No. 389637 to 389650 after opening his office at 24D/1, Gautam Nagar, New Delhi. PW-1 M.S. Saroha in his deposition in the court, had stated as under:-
".............police called one person whose name I do not know perhaps Dinesh. Police made enquiries from him but I was not C.A.26/11 Pinakin Dinesh vs. State 28/38 present with the Police during the interrogation of the said Dinesh. Vol. I was present in the premises of Police Post. The said person was taken by the Police somewhere but I do not know accompanied to the Police. Police brought 6/7 loose drafts at the Police Post. I was asked by the Police to make a formal complaint which is Ex.PW1/A which bears my signatures at point A. I cannot identify that boy as I had seen him for two seconds only. I cannot identify him even if shown to me because five years have left. I do not know anything more about this case. Police obtained my signatures on certain memos. I did not read over those memos before signing them and it was midnight."
18. This witness was cross-examined by the Ld. Addl. P.P wherein the witness said as under:-
" It is wrong to suggest that drafts seized vide seizure memo PW1/B were recovered by the Police in my presence from the accused Dinesh."
19. The recovery memo of the bank drafts in question bears signatures of only one public witness i.e M.S. C.A.26/11 Pinakin Dinesh vs. State 29/38 Saroha, who too was not an independent witness. However, this witness in his deposition in the court clearly stated that he never accompanied the Police when they recovered the drafts. The other person who witnessed the recovery of the drafts was HC Bhagirath Prashad. In his deposition, he stated as under :-
"................ accused Pinakin Dinesh as per his disclosure statement led us at his shop, Gautam Nagar, 24D/1. From the first floor and from the drawer of the table, he taken out bank draft book and handed over the same to the IO, SI Akhilesh Yadav who seized the same vide memo Ex. PW1/B.
19.a In his cross-examination, he stated as under:-
" Shri Akhilesh had called accused Pinakin Dinesh in P.P on telephone but I do not remember at what time he was called. ............... I do not remember the address was worn by accused Pinakin Dinesh. .............. I do not remember when the key of the office of accused Pinakin Dinesh was brought by the father of the accused Pinakin Dinesh. I do not remember if father of Pinakin Dinesh again went back to his house to bring the key of the office and C.A.26/11 Pinakin Dinesh vs. State 30/38 I also do not remember whether the key was produced by the father of the accused in P.P or directly at the office of the accused Pinakin Dinesh when we reached there. I do not remember how long we stayed in the office of the accused Pinakin Dinesh. I do not remember what was the size of the office of accused Pinakin Dinesh. I do not remember the size of wooden table from which the draft booklet, draft of Rs.2,45,00,000/- and draft of Rs.1,000/- was recovered. The draft booklet and draft of Rs.2,45,00,000/- were found together in the same drawer but I do not remember if this drawer was on the right side or the left side of the table. There were only police officials present in the office of the accused when the aforesaid recovery of draft booklet, draft of Rs.2,45,00,000/- and draft of Rs.1,000/- was effected.
20. PW-9 Akhilesh Yadav IO deposed about the recovery of drafts as under:-
"............... as per his (accused) disclosure statement, accused led us at this office alongwith HC Bhagirath and M.S. Saroha, Ct. Ravinder and SI Yogesh. We reached at his office at Gautam Nagar, 24D/1. Accused Dinesh taken out one bank draft book from the drawer of the table and on checking the same we found that draft of serial C.A.26/11 Pinakin Dinesh vs. State 31/38 number 389636 was missed. The draft serial number 389639 to 389650 were intact were blank and draft at serial number 389367 was filled up in the amount of Rs.2,45,00,000/- in the name of Casio India Company without signatures. Accused Pinakin Dinesh also taken out one draft serial No. 389638 and handed over the same to me bearing Rs.2,45,00,000/- in the Casio India Company duly signed as authorised signatory of bank officer.
20.a In his cross-examination, he stated as under :-
" I did not taken into possession the key. It is correct that key was not seized. Vol. The key was called for opening the office of the accused Pinakin Dinesh and it was produced by Sh. Deen Bandhu and it was returned to him. ........... I do not remember the size of the office of the accused. The father of the accused Pinakin Dinesh also reached the office of accused Pinakin Dinesh before we reached. We opened the lock and returned back the key to the father of accused Pinakin Dinesh. It was wooden table from which the draft booklet was taken out. The draft of Rs. 1,000/- was also in the same drawer of the table.
21. A close scrutiny of the depositions of above said C.A.26/11 Pinakin Dinesh vs. State 32/38 two police officials show that they are not in sync. None of these witnesses is able to tell the size of the office from where the drafts in question were recovered. We cannot lose sight of the fact that the allegations in the case are of recovery of a forged bank draft of a huge sum of Rs.2.45 crores and not regarding recovery of a bank draft of a small denomination. The Head Constable, who vouches to be present at the time of the alleged recovery is not able to tell the size of the table or the side (left or right) of the table from which the drafts in question were recovered. Both these police witnesses are telling that the table was wooden table. It does not appeal to reason that a person who witnesses the recovery of the drafts of such huge denomination would not notice and remember such apparent details relating to the recovery. HC Bhagirath Prashad had clearly stated that M.S. Saroha was not present at the time when the recovery of the drafts in question took place. Why was he not joined in the recovery of the drafts when according to the prosecution, the accused had already C.A.26/11 Pinakin Dinesh vs. State 33/38 made a disclosure and had voluntarily agreed to get recovered the stolen bank draft booklet? Was he not anxious to see the said recovery? Both these questions remain itchingly unanswered. M.S. Saroha has already deposed that the recovery of the drafts was not effected in his presence. This is corroborated by HC Bhagirath Prashad as well. Even S.P. Rai Chaudhary PW-2 has deposed that only one Constable had gone to effect the recovery of the drafts. As such, the alleged recovery is only in the presence of police which casts serious doubts about the said recovery, keeping in mind that HC Bhagirath Prashad is unable to tell fine details asked from him during cross-examination, relating to the said alleged recovery. In 'Sanspal Singh vs. State of Delhi', 1998 (2) SCC 371, the Hon'14ble Supreme Court opined that where recoveries were effected only in the presence of the police officials do not inspire confidence an order of acquittal. In 'Staila Sayyed vs. State', 2009 (107) DRJ 153, a division bench of the Hon'ble Delhi High Court held as under:-
C.A.26/11 Pinakin Dinesh vs. State 34/38 "The Hon'ble Supreme Court has in a number of judgments asserted that in the absence of independent witnesses, the evidence of disclosure statements and consequent recovery do not inspire confidence. Ld. Court has also observed that neither in its safe to rely upon the testimony of police witnesses specially where it is not supported by independent witnesses on the material particulars nor should reliance be placed upon evidence where witnesses signed the documents at the instance of the police officials."
22. In convicting the appellant, the Ld. Trial Court has relied upon the recovery of the draft booklet and the demand draft in question from the possession of the appellant. The Ld. Trial Court also relied upon the testimonies of PW-8 Head Constable Bharigath and PW-9 IO/Addl. SHO Akhilesh Prasad regarding the recovery. The ld. Trial Court observed that the complainant PW-1 himself and other prosecution witnesses namely PW-3 to PW-7 all turned hostile, yet, in its zeal, the ld. Trial Court undertook a journey, which it ought not have taken in these circumstances. This is where the Ld. Trial Court fell in error and drew wrong C.A.26/11 Pinakin Dinesh vs. State 35/38 conclusions, overlooking the basic discrepancies.
23. Prosecution has not been able to prove that Dinesh was the proprietor of Casio India Ltd unlike mentioned in the complaint dated 31.08.1999 made by M.S. Saroha to the Police. Prosecution has also not been able to prove as to who had gone to the house of Dinesh to get a photocopy of the demand draft whether it was PW-5 Dinesh Kaushik or PW-6 Arun Mehta. PW-5 Dinesh Kaushik had refused the suggestion that he had gone to the house of the appellant to get a photocopy of the demand draft. Similar suggestion was given and refused by PW-6 Arun Mehta. It appears that the prosecution is not clear as to who had gone to collect the photocopy of the demand draft, otherwise, where was the necessity to put such a suggestion to two witnesses as it was not the case of the prosecution that two persons had gone to collect the photocopy of the demand draft in question. Anil Kumar Yadav PW-3 had refused the suggestion that the appellant had visited the bank on 28.08.1999 or on C.A.26/11 Pinakin Dinesh vs. State 36/38 30.08.1999. The court is not oblivious of the fact that the draft booklet was noticed to have been lost at 4:00 p.m on 28.08.1999 but the report was made to the Police only on 29.08.1999 at 2:45 p.m. There is no explanation for this delayed reporting. PW-1 M.S. Saroha had stated that he was asked to make the complaint dated 31.08.1999 only after the arrest of the appellant, his search, recording of his disclosure and recovery of the alleged bank drafts. In other words, the complaint was not a spontaneous complaint on which the Police had acted and had nabbed the culprit. On the contrary, after doing everything, a formal written complaint was taken from M.S. Saroha, Senior Manager, Allahabad Bank. Thus, the entire prosecution case is shrouded in mystery and it can hardly be said that the prosecution has been able to establish its case beyond reasonable doubt. Be that as it may, when the recovery itself is doubtful, the charge under Section 411 IPC would also fall, whose basic ingredient is recovery from the possession, actual or constructive of the accused, which the prosecution has C.A.26/11 Pinakin Dinesh vs. State 37/38 not been able to prove beyond any pale of doubt.
24. In the net result, the appeal deserves to be allowed and consequently the impugned order convicting the appellant for offences under Section 420/511 IPC and 411 IPC is set aside and the appellant is acquitted. The appellant be set at liberty if not required in any other case. His bail bond is cancelled and surety is discharged.
25. The appellant shall however, furnish bail bonds in terms of Section 437-A of the Code of Criminal Procedure in the sum of Rs. 10,000/- with one surety in the like amount. The bail bond shall remain in force for six months and the appellant shall appear before the Hon'ble High Court as and when it issues any notice on any appeal or other petition filed before it against this order.
Announced in the open court. (RAJEEV BANSAL) Dated:20.01.2012 ASJ-3/SOUTH DISTT.
SAKET COURTS, NEW DELHI C.A.26/11 Pinakin Dinesh vs. State 38/38