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Unknown vs K Khanna I.E Pw 5. Sh on 14 August, 2012

State v Rajat Jolly & Anr.                                                                          Page 1 of 13

 IN THE COURT OF SH PULASTYA PRAMACHALA : A.C.M.M(WEST) 
                TIS HAZARI COURTS : DELHI

Case ID No.02401 R 0128691999
State  v. Rajat Jolly& Another.
FIR No. 709/96
P.S.   Rajouri Garden. 
U/S  381/420/468/471/511 r/w 120 B IPC.  
                                    JUDGMENT

a.    The  serial no. of the case                     :      1121/2

b.    The date of commission of the                          :      On or about 25.1.96   
       offence                                                      Upto 16.8.1996.
c.    The name of the complainant                            :      Sh. Rajesh Bedi. 

d     The name of the accused                 :   1.Rajat Jolly S/o Sh. N.K. Jolly     
        their parentage & addresses                  R/o  JG 3/155 C, Vikas Puri, New Delhi.
                                                      
                                                   2. Raziuddin S/o Late Sh.Riyazuddin, 
                                                       R/o G­54 Karam Pura, New Delhi. 

e.    The offence complained of                       :       U/s 381/420/468/471/511 r/w 120 B IPC

f.     The plea of the accused persons                :       Pleaded not guilty.

g.    The final orders                                :       Acquitted.
 
h.    Final arguments heard                           :        09.08.2012

i.     The date of judgment                           :       14.08.2012.


FIR No.709/96                                                                            Sh. Pulastya Pramachala
                                                                                            ACMM(West)/Delhi.
 State v Rajat Jolly & Anr.                                                              Page 2 of 13

Briefly stated the case of prosecution is as follows:

1. The complaint dated 22.8.1996 was made by complainant and was received by the police on 24.8.1996 on the basis of which the present FIR was registered at police station Rajouri Garden. It was alleged in this complaint that on 16.8.1996, complainant was informed by the officials of Canara Bank that one person namely Krishan had presented a bearer cheque no. 309096 dated 13.8.96 for Rs.4,75,000/­. This cheque was drawn on account of Bedi Films Visuals and out of suspicion, call was made to the complainant on telephone , in order to confirm that payment was payable to Sh Krishan. Sh Krishan had vanished from the bank after hearing such call being made to the complainant and complainant alleged that said cheque was stolen from his cheque book and after forging his signature as well as amount and name of beneficiary, it was presented for encashment. Thereafter, same complainant made another complaint dated 24.8.96, which was received by police on 26.8.96. In this complaint, it was alleged by the complainant that he and his brother Naresh Bedi had been carrying the business in the name of Bedi Films and after taking of statement of their accounts being maintained in Canara Bank branch Rajouri Garden, they came to know that there were certain unauthorized withdrawals from the FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

bank account of both the brothers, between the period from 25.1.96 upto 24.7.96. The complainant alleged that said withdrawals were made on the basis of forged signatures.

2. Police investigated this case and filed the present charge sheet in the court on 2.11.1999 against accused persons alleging commission of offences punishable under section 381/420/468/471/511/120 B IPC. This Court framed charges against both accused persons on 13.5.2004 for aforesaid offences. Thereafter prosecution examined 10 witnesses in support of its case, while one witness was examined on behalf of accused Rajat Jolly. Statement of both accused persons were recorded under section 313 Cr P.C on 22.9.2011.

3. I have heard Ld. APP for the State, learned counsels for accused persons and have carefully perused the entire record in the light of relevant statutory provisions of law.

4. Ld. Counsel for defence has argued with vehemence that prosecution has miserably failed to prove the charges against the accused. Ld. counsel has relied upon the judgment cited in Sanjay @ Sonesh Dass v State 2009 (1) FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

JCC 472 Delhi (DB) to submit that PW 6 was not confronted with his previous statement, therefore, it can not be said that there was any contradiction in his examination in chief. He relied upon Shaikh Umar Shaikh and Anr v State of Maharashtra 1998 Cr.L.J 2534 (SC) and State of U.P v Ashok Dixit and Anr II (2000) SLT 179 (SC) to submit that there was no TIP conducted of the accused persons and their identification for the first time in the Court can not be given any favourable consideration. He further relied upon Raj Mani v State 1997 CrL.J 3879 (Delhi­DB) to state that report prepared by Sh T.R Nehra can not be read in evidence as he did not enter into the witness box to prove his report and to stand the test of cross examination. Ld. counsel also relied upon Magan Bihari Lal v State of Punjab AIR 1977 SC 1091 to say that even otherwise, opinion of expert cannot become test to find guilt of accused persons. He relied upon Paramjit Singh & Ors v State of Punjab & Ors. 1997 SCC (Cri) 486 to submit that delay in recording the supplementary statement of PW 1 and PW 2 cast heavy doubt over the legitimacy of prosecution case. He also relied upon State v Ravi @ Munna 2000 CrL.J 1125 (Delhi­DB) to submit that besides one cheque i.e P­13, none of the cheques were duly seized by the IO which raises severe doubt over the FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

manner in which investigation was done in this case.

5. Both the accused persons were charged that on or about 25.1.1996, they entered into a criminal conspiracy to steal cheques of their employer and to withdraw the amount from the account of their employer by forging their signatures. They were also charged with allegation that on or about 25.01.1996 up to 16.08.1996, they stole blank cheques of their employer in furtherance of their criminal conspiracy, they forged signature of Rajesh Bedi and Naresh Bedi on five cheques as per their respective accounts and withdrew the amount to cheat their employers. They were also charged with offence that they used the forged cheques and withdrew the amount in order to cheat their employers and that on 16.8.96, they attempted to withdraw the amount of Rs.4.75 lacs in dishonest manner after stealing another cheque of their employers.

6. For the purpose of appreciation, it is worth to clarify that PW 1 and PW 2 are alleged to be the employers of both accused persons and PW 1 is the complainant in this case.

7. The prosecution has not produced any direct evidence to show that both accused persons had entered into alleged criminal conspiracy or that they FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

had stolen the cheques in question or that they had forged the signatures of PW 1 and PW 2 on these cheques. The case of prosecution is dependent upon circumstantial evidence only, because no eye witness to the aforesaid allegations could be found by the prosecution. Therefore, in order to analyze the evidence on record, it would be better to know the scope of circumstantial evidence in order to find guilt of accused persons. It was held in AIR 2010 SUPREME COURT 762 "Musheer Khan v. State of Madhya Pradesh" that "The first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and is incapable of explanation upon any other reasonable hypothesis except his guilt. (Para 50)".

FIR No.709/96                                                            Sh. Pulastya Pramachala
                                                                            ACMM(West)/Delhi.
 State v Rajat Jolly & Anr.                                                          Page 7 of 13

8. In the present case, as already observed herein above, there is no eye witness to state that he saw both the accused persons making design of criminal conspiracy or stealing the cheques from the office of PW 1 or PW 2 or forging the signature of PW 1 and PW 2 on those different cheques. The prosecution has made allegation of criminal conspiracy as well as of theft and forgery on the basis of report given by Sh V. K Khanna i.e PW 5. Sh. Khanna had examined the cheques as well as specimen signatures and hand writing of both accused persons and certain admitted hand writing of accused Rajat Jolly. He deposed that as per his examination, the body of cheques ExP­17 and ExP­18 had similar hand writing as that of accused Rajat Jolly. He had also opined that there were certain similarities found by him in the specimen hand writing of both accused persons and certain writings on the back side of cheques ExP­11, P­12, P­13, P­16, P­17 and P­18. These writings on the back side of these cheques are the signatures in the name of beneficiary of these cheques respectively. However, he also observed in his report that he was unable to express a more strong opinion because there were no complete similarity of all the letters as well as figures used in the questioned hand writing. There is no second opinion in respect of legal position that an expert's opinion can not be the sole evidence to find guilt of accused and that such opinion of the expert must be supported with FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

other corroborative evidence. In the present case, even the opinion of PW 5 in respect of certain hand writing on the cheques in question is not conclusive opinion as he himself has mentioned that it was a case of similarity alongwith some discrepancies. The report prepared by Sh T R Nehra was not proved by calling him as a witness in this case and I do find that the judgment relied upon by the accused leaves no doubt that in the absence of examination of Sh. Nehra as a witness in this case, this report can not be treated as duly proved one.

9. The next relevant piece of evidence is the statement given by PW6 Sh. Shiv Raj Singh, who deposed that he was posted in that branch at the relevant time and was performing his duty as the Cashier. In his examination in chief, he could not identify those two persons who had received the payment from him in the name of Mahesh and Shankar. However, in his cross­examination being conducted by Ld. APP, he deposed that he identified both accused persons as they used to come in the bank as employees of Bedi Films. He also deposed that he could not say with certainty whether accused Rajat Jolly came to bank on 04.07.1996 and was handed over Rs.1.25 lacs. Rather he denied the suggestion that accused Rajat Jolly impersonated as Mahesh and was paid Rs.1.25 lacs by him vide cheque Ex.P18 or that accused FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

Raijuddin impersonated as Mahesh and was paid Rs. One lac vide cheque ExP­17. However,in the last of his cross examination, he admitted the suggestion that he had told the police by pointing out both accused persons that they were the persons to whom he had made the payment. He also admitted the suggestion that he could not identify these accused persons as the case was 18 years old. In his cross examination by accused persons, he deposed that he could remember the face of the person to whom he had delivered the cash, if such person was shown to him within next 2/3 days and he could not tell regarding a particular person that he was paid a particular payment after going through his records of the payment. He further deposed that police had shown the accused persons to him in the bank after about 3 years of the occurrence and he reiterated that he knew them as representative of Bedi Films because they used to come in the bank in connection of affairs of their company. The aforesaid statement of this witness make it clear that this witness would have known the accused persons at the time of disclosure of such incident of fraud in the bank. As per prosecution story, on 16.8.96, the alleged incident of withdrawal on the basis of forged signatures on the cheques was disclosed in the Bank. In that situation, in normal scenario, this witness would have straightway told the police that alleged payments were made to accused Rajat Jolly or accused FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

Raizuddin. However, he did not make any such statement to the police immediately after discovery of such fraud. Rather, he was shown these two persons after 3 years of the occurrence, when he allegedly recognized them to be the person who withdrew the money. If immediately after disclosure of fraud, memory of this witness did not work on or about 16.8.96, to figure the accused persons to be the responsible persons for such fraudulent withdrawal of amount, then it could not have worked after lapse of another three years. Therefore, I find that the statement given by this witness during his examination in chief is probable and worth reliance rather than the admission extracted from his mouth in his cross examination by ld. APP regarding identification of both accused persons.

10.Another important witness in this case is PW 3, who maintained her stand through out the examination in chief as well as cross examination by Ld. APP for State that she could not identify the persons who had produced the cheques in question and to whom she had given token on different dates starting from 25.1.96 upto 27.7.96. Besides these two witnesses, none of the witnesses examined by the prosecution could make any statement regarding the identification of accused persons to be the person responsible for alleged fraud. Rather PW 9 who had conducted initial inquiry in the bank in respect FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

of alleged fraud, pointed the suspicion towards the family members of complainant and his brother i.e wife of PW 1 and PW 2 . Thus, the evidence of this witness examined by the prosecution itself raises doubt in respect of culpability of accused persons. PW 10 was IO of this case. However, he did not explain the reasons to keep the investigation pending for almost 3 years by him and the outcome of investigation being done during these 3 years, if made. This question is important because it is apparent from the prosecution evidence itself that PW 9 had submitted his report after making initial investigation and inquiry on 3.4.97. The IO had arrested the accused persons on 19.3.97 and 20.3.97 on the basis of CFSL report allegedly received by him. IO admitted in his examination before the Court that he had got prepared a sketch of suspect, however, same did not match with accused persons. He also admitted that only one cheque ExP­13 was seized and sent to CFSL. However, the record shows that all the cheques are placed on record. It also shows that there is seizure memo in respect of cheque ExP­13 only, which was the last cheque allegedly presented on 16.8.96. In the charge sheet, IO has written that he had obtained the cheques from Canara Bank. However, in his statement before the Court he deposed that complainant had handed over other cheques to him. However, he did not remember the date and no seizure memo was prepared by him. This FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

omission on the part of IO to mention the date of seizure or preparing a proper seizure memo of said cheques is contrary to the established procedure of investigation. Such irregular practice of investigation does have effect to raise a doubt over the manner in which investigation was conducted, because the other cheques were duly encashed and could not have been in possession of PW 1.

11. I have not discussed the statement of PW 1 and PW 2 because I could not find any incriminating statement against accused persons in respect of alleged offences except the presumption of these two witnesses. Rather, I find that these two witnesses were not deposing very correctly regarding the facts, which shows that they had been making statement which suited to them and their interest. PW 1 and PW 2 could not dispute the fact that their wife and son also withdrew the amount from the same branch as well as adjacent branch on certain dates of alleged fraudulent withdrawal of amount. The presence of their family members and the knowledge of bank officials regarding representatives of company being run by these two persons, raise an assumption that payments were not made in suspicious conditions to a third person without authorization of PW 1 or PW 2 This assumption gets support from the fact that PW 1 and PW 2 did not name the accused persons FIR No.709/96 Sh. Pulastya Pramachala ACMM(West)/Delhi.

in the initial complaint and statement.

12.Thus, the over all evidence on the record show that there is no incriminating evidence against accused persons so as to form a conclusive opinion regarding their involvement in the alleged act of fraud, criminal conspiracy, theft as well as cheating. Hence, both the accused persons are acquitted of the charges.

13.File be consigned to Record Room.

Judgment dictated and pronounced in the open Court On this 14th day of August, 2012.

                                                                  ( Pulastya Pramachala )    
                                                         Addl. Chief Metropolitan Magistrate  
                                                       West District, Tis Hazari Courts:Delhi




FIR No.709/96                                                              Sh. Pulastya Pramachala
                                                                              ACMM(West)/Delhi.
 State v Rajat Jolly & Anr.             Page 14 of 13




FIR No.709/96                Sh. Pulastya Pramachala
                                ACMM(West)/Delhi.