Delhi District Court
State vs Mukesh Bhatnagar Etc. Sc 38/2012 1 on 27 September, 2014
ID No.02403R1040882008
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-04 &
SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: NEW DELHI
Sessions Case No. 38/2012
Unique ID No.02403R1040882008
FIR No. 172/1994
U/s 120-B/420/467/471/489-C/489-D IPC
PS : Crime Branch (South Delhi)
State
Versus
Mukesh Bhatnagar ..........accused no. 1
s/o Sh. Kishan Lal
r/o C9-B, Avantika Enclave,
near Pole Star School,
Sector-2, Rohini, Delhi
Sunil Kumar ..........accused no. 2
s/o Sh. Balak Ram Sharma
r/o 79/6, Pushp Vihar,
Sector-1, New Delhi
Ram Kishan ..........accused no. 3
s/o Sh. Baldev Singh
r/o 95-AU Block, Ekta Enclave,
T-Huts, Pitam Pura, New Delhi
Devender Kumar ..........accused no. 4
s/o late Sh. Khushal Chand
r/o 5543/74, Raiger Pura,
Karol Bagh, Delhi
Instituted on : 16th July,2012
Arguments concluded on : 23rd September,2014
Decided on : 27th September,2014
JUDGMENT
1. Accused persons were sent up for trial for the offence punishable under section 120-B read with Section 420, 467, 471, 489-C and u/s 489-D IPC. In brief, case of the prosecution is that on 18th March, 1994, Regional Manager, Dena Bank, Arya Samaj Road, Karol Bagh New Delhi branch gave a complaint regarding receipt of a fake draft having serial number 455931 dated 05th March, 1994 for Rs. 2,75,600/- in favour of Sh. Rakesh Kumar purported to be issued from their Sonepat Branch, presented through Union Bank of India, Palika Kendra for credit in the account of M/s. Meerut Agro Mills. Dena Bank informed Union Bank of India Palika Kendra that the draft was forged and instructed them not to make payment. Sh. G. S. Tyagi, Managing Director of M/s. Meerut Agro Mills, who presented the demand draft (DD) State vs Mukesh Bhatnagar etc. SC 38/2012 1 ID No.02403R1040882008 visited the bank on 15.03.1994 and informed that the said DD was received by Sh. Rakesh Kumar from some other person. A FIR under section 420/467/468/471/506 IPC was registered at Police Station R. K. Puram. During the course of investigation, it was revealed that Sh.Rakesh Kumar Singh was interested for purchasing land at Shimla and was known to accused Devender Dhuria, who suggested that land could be available in Shimla. On 19.02.1994, on his assurances, Rakesh Kumar allegedly paid a token money of Rs. 3 lacs to accused Sunil Kumar. Rakesh Kumar visited Shimla and due to distance and high transportation cost, he dropped the idea by informing Devender Kumar Dhuria and asked for return of money. Devender Kumar informed him that he had given the said token money to accused Sunil Kumar, another property dealer and Shafiqur Rehman, a friend of Sunil Kumar. Rakesh Kumar Singh had to return Rs.2,75,600/- to Sh. G. S. Tyagi for the purchase of Basmati Rice. On 18.03.1994, Devender Kumar Dhuria gave bank draft No. 455931 dated 05.03.1994 for a sum of Rs 2,75,600/- Dena Bank Sonepat and cash amount of Rs 24,400/- alongwith a receipt settlement letter duly signed by accused D. K. Dhuria, as attesting witness and Sunil Kumar to Sh. Rakesh Kumar Singh, who endorsed the draft in favour of Meerut Agro Mills Ltd. in which Sh. G. S. Tyagi was the Managing Director, who deposited the Demand Draft in Union Bank of India, Palika Kendra.
2. Manager, Union Bank of India, Palika Kendra informed Sh. G. S. Tyagi that the Demand Draft was fake and returned the demand draft to Sh. G. S. Tyagi. On 29.03.1994, accused Sunil Kumar and Ram Kishan were arrested and a cheque of Rs.76,000/- was recovered from accused Sunil Kumar which was allegedly given to him by Devender Kumar Dhuria for providing forged Demand Draft. Two counterfeit US note of $ 100 denomination and two counterfeit Lira note of 1,00,000/- denomination each were recovered from the possession of accused Ram Kishan from his personal search at the time of arrest. On 30.03.1994, accused Shafiqur Rehman (PO) and Babu Lal (PO) were arrested. One Lira counterfeit note of State vs Mukesh Bhatnagar etc. SC 38/2012 2 ID No.02403R1040882008 1,00000/- of denomination was recovered from the possession of accused Babu Lal at the time of his arrest. All three counterfeit Lira were having identical number i.e. PC520577B. There was difference in quality of paper, printing style and colours of the dollars and Lira which confirmed that the recovered foreign currency was forged/counterfeit.
3. On 06th April, 1994, accused Madan Lal Yadav (PO), Mohan Singh (PO), Mukesh Bhatnagar and Hari Kirtan Singh were arrested. On 24th September 1994, accused Devender Kumar Dhuria was arrested. During the course of investigation, it was found that the forged bank draft passed through the hands of Devender Kumar Dhuria, Sunil Kumar, Shafiqur Rehman (PO), Ram Kishan, Babu Lal (PO), Surender Singh and Mukesh Bhatnagar @ Bunty, who were fully aware regarding supply of the forged draft in furtherance of their criminal conspiracy. It is stated that accused Surender Singh could not be traced. It is alleged that forged draft was filled by accused Mukesh Bhatnagar @ Bunty and was printed by accused Madan Lal Yadav (PO). Accused Mohan Singh and Hari Kirtan Singh obtained the block of said draft by representing themselves to be the officials of Dena Bank. It is alleged that around 50 forged drafts were printed and several persons were cheated by accused Mohan Singh, Hari Kirtan Singh and Mukesh Bhatnagar @ Bunty all over the country. Several cases for presenting forged bank draft were registered at different police stations all over the country. Handwritings of Mukesh Bhatnagar @ Bunty, Devender Kumar Dhuria and Sunil Kumar were sent to FSL for expert opinion.
4. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 04th July, 1994 . Case was committed to the Court of Sessions by Learned Metropolitan Magistrate on 16th July, 2012. On 24th August, 2012, charges under section 120-B IPC r/w 420/467/471 IPC against accused Sunil Kumar, Ram Kishan, Mukesh Bhatnagar, Har Kirtan Singh and Devender Kumar Dhuria, charges for the offence punishable u/s 489(c) IPC against accused Ram Kishan and charges u/s 489 (d) IPC against accused Har Kirtan were framed to State vs Mukesh Bhatnagar etc. SC 38/2012 3 ID No.02403R1040882008 which they plead not guilty and claimed trial.
5. During pendency of trial, on 09th April 2002 accused Babu Lal, on 19th July 2003 accused Mohan Singh, on 19th October 2006 accused Madan Lal and on 07th August 2007 accused Safikur Rehman were declared proclaimed offenders. Accused Harkirtan Singh expired and vide order dated 23rd July 2014 proceedings against him stood abated.
6. Points which emerge for determination in this case are:
(i) Whether during the period between 19th February 1994 to 18th March 1994, accused persons were party to criminal conspiracy to forge the demand drafts of Dena Bank in order to cheat the complainant as well as the bank?
(ii) Whether accused persons were party of criminal conspiracy for committing cheating by dishonestly inducing Rakesh Kumar to sell a piece of land in Shimla for which accused persons received a sum of Rs. Three lacs and presented forged demand draft before the complainant bank for getting the same encashed?
(iii)Whether accused persons in pursuance of criminal conspiracy prepared and presented a forged demand draft no. 455931 dated 05 th March 1994 in the sum of Rs. 2,75,600/-, Dena Bank, Sonipat before complainant bank for encashment?
(iv) Whether accused persons in pursuance of criminal conspiracy were found in possession of four cheques, valuable documents, securities and the printing material i.e. blocks for preparation of forged demand drafts?
(v) Whether accused Ram Kishan was found in possession of US $ of 100 with one note of Lira (Italian currency) of one lac , which he retained knowingly or having reasons to believe that same was forged or counterfeit?
7. To establish charges against accused, prosecution examined 19 witnesses. Brief outline of the testimony of prosecution witnesses is as under :
7.1 Smt. Suman Mohan (PW-1) clerk cum cashier at Service Branch, Dena Bank at Cannaught Place in March 1994 is witness to the entry in the register (Ex. PW1/A) wherein Demand draft no. 455931 was written in the sum of Rs.2,75,600/-. R.N. Aggarwal (PW-2) Senior Manager, Service Branch, Dena Bank at Cannaught place State vs Mukesh Bhatnagar etc. SC 38/2012 4 ID No.02403R1040882008 in 1994 is witness to seizure memo (Ex. PW2/A) of certified photocopies of register pertaining to Dena Bank in relation to rerun of drafts, page no. 017 for the date 09.03.1994 and 10.03.1994 including the entry regarding Demand draft no. 455931 dated 05.03.1994 for Rs. 2,75,600/- (Ex. PW2/B) purported to have been issued by Sonipat Branch of Dena Bank. Bhupender Singh (PW-3) Officer, Service Branch, Dena Bank at Cannaught place placed on record photocopy of forged demand draft (Ex. PW3/A).
7.2 Mahender Kumar Verma (PW-4) was Branch Manager, Dena Bank at Sonipat , Haryana. Sujeet Singh Rawal (PW-5) security officer, Dena Bank, Regional office, Arya Samaj Road is witness to seizure memo (Ex. PW5/A) of photocopies of 19 fake bank drafts alongwith list of fake drafts. He placed on record two copies of letters (Ex. PW5/B and Ex. PW5/C) found in a letter box at his house i.e. 18, New Rohtak Road. PW-5 is witness to seizure memo (Ex. PW5/D)of 13 photocopies of forged bank draft. Garib Dass (PW-6) Officer of Dena Bank, Cannaught Place verified signatures appearing on fake demand draft (Ex. PW3/A) bearing no. 455931 dated 05.03.1994 from the specimen signatures book and found that the signatures that said instrument was found to be fake. Ashok Gupta (PW-7) senior Manager at Cannaught Place, Union Bank of India is witness to demand draft dated 09.03.1994 in favour of Rakesh Kumar alongwith pay-in-slip vide copy (Ex. PW7/A); copy of reason memo (Ex. PW7/B). PW-7 is witness to seizure memo (Ex. PW7/D) of page of register (Ex. PW7/C) and entry at point A regarding returning of Demand draft to the account holder ; seizure memo (Ex. PW7/F) of demand draft and copy of age (Ex.
PW7/E) of clearing cheque register dated 09th March 1994.
7.3 Kuldeep Chauhan (PW-9) dealing in manufacturing of printing block at his work shop at 21, Naya Bans, Katra Bariyan is witness to seizure memo (Ex. PW9/B) of copy of Bill Book no. 3612 (Ex. PW9/A) and pointing out memo (Ex. PW9/C). Rajiv Chugh (PW-11) was clerk in Union Bank of India , Palika Kendra Branch. On 22nd March, 1994, police came to the bank and shown him one draft number 455931 State vs Mukesh Bhatnagar etc. SC 38/2012 5 ID No.02403R1040882008 dated 05th March 1994 of Rs. 2,75,600/- in favour of Rakesh Kumar endorsed in the name of M/s Meerut Agro Mills Private Limited. Tarun Kumar (PW-12) Deputy Regional Manger, Dena bank deposed that it was brought to his notice through Captain Rawal-security officer of the bank that forged demand draft had been presented by Union Bank to their service branch for clearance and PW-12 filed complaint (Ex. PW12/A) dated 18th March, 1994 to DCP, Crime PHQ, New Delhi . 7.4 Arun Sareen (PW-16) Cluster Head-Foreign Exchange at M/s Thomas Cook (India) ltd appeared to depose on behalf of M/s Thomas Cook (India) ltd as Ajay Bhatia posted as Manager, Foreign Exchange left the job from their company and his present whereabouts were not known. PW-16 deposed that US Dollar bearing Nos. B75054649B (Ex. PW16/A-1) and B74348296C (Ex. PW16/A-2) and three Lire notes bearing similar numbers i.e. PC520577B (Ex. PW16/A-3 to Ex. PW16/A-5) were apparently counterfeit due to difference in the quality of paper, printing style and colour.
7.5 Dr. S. C. Mittal (PW-17) Senior Scientific Officer , Grade-I (Documents), CFSL, CBI, New Delhi placed on record report no. CFSL-94-D690 (Ex. PW17/A) dated 07th September 1994 and eight photographs bearing questioned writing and signatures and printed matter. Two photographs of copy of document (Ex. PW17/B) having mark Q1 , Q2 and Q2/1. He placed on record separate photograph of signature Q2/1 (Ex. PW17/C), photograph of handwriting and signature Q3 & Q3/1 (Ex. PW17/D), Separate photograph of signature Mark Q3/1 (Ex.PW17/E), Separate photograph of signature & handwriting Mark Q4, Q4/1 & Q5 (Ex.PW17/F), Separate photograph of signature Mark Q5 (Ex.PW17/G), Separate photograph of signature Mark Q4/1 (Ex.PW17/H), Separate photograph of admitted signature Mark A1/1 (Ex.PW17/J), Separate photograph of signature Mark A1/2 (Ex.PW17/K), Separate photograph of admitted handwriting and signature Mark A1/1 and A1/2 (Ex.PW17/L), Specimen documents mark S1 to S80 on 80 separate photographic sheets (Ex.PW17/M-1 to Ex.PW17/M-80). PW-17 had not given any opinion on the questioned writing mark State vs Mukesh Bhatnagar etc. SC 38/2012 6 ID No.02403R1040882008 Q3 and Q5 due to the reason that sufficient number of similarities or difference were not found between the available questioned and specimen writings. 7.6 SI Jeet Singh (PW-10) joined investigation with IO/SI Rajesh Kaushik. PW-10 is witness to personal search memos (Ex. PW10/A to Ex. PW10/D and Ex. PW10/K) of accused Madan Lal, Mukesh Bhatnagar, Harkirtan Singh, Mohan Singh and accused Devneder Kumar Dhuria. PW-10 is also witness to disclosure statements (Ex. PW10/E to Ex. PW10/H) of accused Mohan Singh, Mukesh Kumar @ Bunty, Harkirtan Singh and Madan Lal Yadav respectively, seizure memo (Ex. PW10/J) of dismantled parts of printings press, one carpet, one VCR TEXLA company with remote. SI Vijay Kumar (PW-13) duty officer recorded FIR (Ex.PW13/A) at 10:15 pm at Police Station R. K. Puram and made endorsement (Ex.PW13/B) on the rukka. Ct. Narender Kumar (PW-14) joined investigation with IO/SI Rajesh Kaushik. He is witness to disclosure statements (Ex. PW14/A and Ex. PW14/B) of accused Harkirtan Singh and Mohan Singh respectively. PW-14 is witness to pointing out memo (Ex. PW14/C) prepared by IO/SI Rajesh Kaushik at the instance of accused Mohan Singh at 64/41, Katra Bariyan, Old Delhi . PW-14 is witness to seizure memo (Ex. PW14/D) of bill no. 6342 (Ex. PW14/E) dated 22nd February 1991 produced by Hari Ram. ACP Suresh Chandra (PW-15) joined investigation with IO/SI Rajesh Kaushik. PW-15 is witness to personal search memos (Ex. PW15/A and Ex. PW15/B) and disclosure statements (Ex. PW15/C and Ex. PW15/D) of accused Sunil Kumar and Ram Kishan. PW-15 is witness to personal search memo (Ex. PW15/E) and disclosure statement (Ex. PW15/F) of accused Shafikur Rehman. PW-15 is witness to personal search memo (Ex. PW15/G) and disclosure statement (Ex. PW15/H) of accused Babulal.
7.8 M. K. Sharma (PW-18) Inspector Crime Branch conducted investigation and prepared several documents, during the course of investigation. He placed on record photocopy of instrument no. 455931 (Ex. PW18/A) dated 05th March 1994 produced by Sh. Ashok Gupta, Manager, Union Bank of India and photocopy of 19 demand State vs Mukesh Bhatnagar etc. SC 38/2012 7 ID No.02403R1040882008 drafts (Ex. PW18/B-1 to Ex. PW18/B-19) alongwith the list (Ex. PW19/C) produced by Sh. S. S. Rawal, security officer, Dena Bank.
7.9 Rajesh Kumar Kuashik (PW-19) SI, Anti Forgery Section, Crime Branch conducted investigation. PW-19 made endorsement (Ex. PW19/A) on a complaint from Regional Manager, Dena Bank regarding circulation of forged bank drafts. PW-19 prepared seizure memo (Ex. PW19/B) of photocopies of five documents i.e. bank draft number 455931 for Rs.2,75,600/- with the report that the draft is fake, mail to M/s. Meerut Agro Mills Ltd. dated 11 th March, 1994 for Rs.2,75,600/- Union Bank of India, bill no. 21 dated 11th December, 1993 for Rs.2,75,600/- from M/s. Meerut Agro Mills Ltd. to Rakesh Kumar, Ghaziabad, confirmation letter given by Rakesh Kumar to M/s. Meerut Agro Mills Ltd. for demand draft No. 455931 and fake demand draft number 455931 Dena Bank for Rs.2,75,600/- in the name of Rakesh Kumar which are (Ex. PW19/B-1 to Ex. PW19/B-5) . PW-19 prepared seizure memo (Ex. PW19/C) of forged bank draft no. 455931 for Rs. 2,75,600/- and one money receipt for acknowledging the return of token money of Rs. Three lacs and seizure memo (Ex. PW19/D) of two dollar notes of 100 denomination each of United States of America and two lire for Rs. 1,00,000/- denomination allegedly recovered from the possession of accused Ram Kishan.
8. On conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.PC were recorded. Accused persons pleaded innocence and false implication. Accused Mukesh Bhatnagar stated that in the year 1994, he alongwith his friends had come out from the gym, some persons, in civil uniform, came to them and took them to the police station. His other friends were released but he was detained in the police station and his signature were obtained on many blank papers as well as written papers. His arrest was shown after 10-12 days. He had not gone to any place and his disclosure statement was not recorded and nothing was recovered at his instance. Accused Ram Kishan stated that some police officials who were not in uniform called him from his house C-5/31, Sector 15, Rohini on 20 th March 1994. State vs Mukesh Bhatnagar etc. SC 38/2012 8
ID No.02403R1040882008 They asked address of some hotel which he refused to furnish. They took him away with them and implicated him falsely in this case and thereafter, his arrest was falsely shown on 28th March 1994. His neighbour made a telephonic call at 100 number as he thought that some unsocial element had abducted him. Thereafter, his neighbour came to know that those persons were police officials. Nothing was recovered from him. Accused Devender Kumar Dhuria submitted that in the year 1991, a scuffle took place between him and one police official (sardarji) in a party. In the year 1994, one police official had come to his house and alongwith him, he had gone to the police station. Thereafter, he has was arrested. His signatures were obtained on many blank papers and he was not aware about the facts of the case. Accused Sunil Kumar stated that he has been falsely implicated in the present case by the police because he had not greased their palms. He stated that prior to his arrest, he casually knew Ram Kishan (co accused), as he was working in the ISBT as a mechanic. He used to meet him often during journey from Himachal Pradesh to Delhi and back at ISBT and used to exchange greetings. Apart from that, he had no link with him or any of the co accused.
9. Learned Addl. PP submitted that prosecution has proved the case against the accused persons. Handwritings of accused persons namely, Mukesh Bhatnagar and Devender Kumar matched with the questioned document. It is submitted that chain of evidence proves that the demand draft no. 455931 is forged instrument on which the handwriting of Mukesh Bhatnagar proved by the expert's opinion (PW-17). It is contended that dismantled printing press is proved to be recovered from accused Mukesh Bhatnagar. Factum of purchasing blocks for printing forged demand draft is also proved as receipt was recovered from Kuldeep Chohan at the instance of accused Mohan Singh . It is submitted that recovery of fake US dollar and Lire from accused Ram Kishan and Sunil Kumar is also proved. The recovery of Lire of one Lac from accused Babu Lal is proved. It is argued that all the accused persons in furtherance of criminal conspiracy committed the offences charged and thus, State vs Mukesh Bhatnagar etc. SC 38/2012 9 ID No.02403R1040882008 accused persons are liable to be convicted for the offences charged.
10. Learned defence counsels submitted that there was not even a single document on record, which is proved against the accused persons by the prosecution. It is submitted that prosecution has miserably failed to prove charges against the accused persons. Learned counsel placed reliance upon a case reported as "Bachan Singh vs State of Punjab"1 and "Vijender etc. vs State of Delhi"2. Sh. H. S.Dhillon Learned counsel for accused Ram Kishan submitted that as far as authenticity of fake currency note is concerned, Arun Sareen (PW-16) is material witness who admitted that he did not obtain any certificate or document in regard to expertise to examine foreign currency. PW-16 admitted that Italian currency (Lira) was not in circulation from last about 10-12 years and he had not seen currency from the last 4-5 years. How the prosecution could rely upon a witness who did not checked the foreign currency or had any authorization from any authority including Indian, US or Italy. As per IO/Inspector Rajesh Kumar Kaushik (PW19), foreign currency was seized from accused Ram Kishore. IO/Inspector Rajesh Kumar Kaushik (PW-19) did not seized foreign currency as per procedure established by law and the same was not properly sealed with stamp of IO. IO failed to explain as to for how much period the alleged unsealed foreign currency remained in his possession or that he had not deposited said alleged fake currency with malkhana moharar.
11. It is submitted that FSL report (Ex. PW17/A) was erroneous. It is submitted that Court was not bound with the expert opinion. In this regard, Learned counsel placed reliance upon "Mahender Singh vs State"3 and "Gulam Rahman vs The King"4. Learned counsel submitted that specimen signature or specimen writing was to be compared with the specimen signature or specimen writing which was obtained 11981 Law Suit (P&H) 34 2 1997, C.R. 357 (SC) 3AIR 1953 SC 416 41950 Cal. 66 State vs Mukesh Bhatnagar etc. SC 38/2012 10 ID No.02403R1040882008 before the concerned Court but in this case, specimen signature of accused Mukesh Bhatnagar was obtained by the IO in the police station. It is submitted that it is well settled law that no accused persons can be compelled to give evidence against him. In this case, IO obtained specimen signature and writing of accused persons in compelling circumstances and alleged signature and writing vary with the signature of accused persons. Learned counsel placed reliance upon "R. B. Katodia vs State of Maharashtra"5.
12. Sh. Gaurav Gandhi Learned counsel appearing on behalf of accused Sunil Sharma submitted that accused was falsely involved in this case and there was no incriminating evidence against accused Sunil Sharma in charge sheet but despite that accused faced complete trial and during the course of trial, no incriminating evidence had emerged on record or proved against accused. It is submitted that prosecution failed to produce any material public witnesses namely Sh. G. S. Tyagi, Sh. Rakesh Kumar Singh Bishnoi and Sh. Nigam, without testimony of these witnesses, it was impossible to ascertain the correctness and truth of the prosecution story. Learned counsel also referred "Subarna Barik vs The State of Orissa"6 and "Shobha Rani vs Ravi Kumar P & H"7. It is urged that grant of police custody of accused persons were ex-facia illegal and so called confession and alleged recovery had no evidentiary value. The investigation conducted by the police with reference to the accused was not bonafide and false recording were created to implicate the accused persons. It is argued that the provision of Section 100 of the Code would apply to search and seizure but in this case, no public witness brought by the IO on the relevant time of search and seizure and it is the violation of said provision. It is submitted that document should be furnished before the Court from the possession or custody of competent authority, while in the present case, IO collected the 51972 Bombay Law Report 116 61976 AIR 236 71999 AIR 21 State vs Mukesh Bhatnagar etc. SC 38/2012 11 ID No.02403R1040882008 incriminating items, forged documents from the possession of Sh. Rawal-Security officer and he was not competent authority to possess the aforesaid documents, which violates Section 90 r/w 81 of Indian Evidence Act.
13. Present FIR was registered against the accused persons for the offence because a deal pertaining to the land of 30 acres situated at Shimla, was taken place between accused Sunil Kumar and Rakesh Kumar Bishnoi, who had given Rs. 3,00,000/- as advance to the accused Sunil Kumar but due to non-maturity of aforesaid deal , Sunil Kumar had returned the amount by way of handing over the bank draft bearing no. 455831 dated 05th April 1994 of Rs. 2,75,600/- and for the rest amount of Rs. 24,400/- was given in cash. In this regard, a receipt or settlement deed was prepared (without date) by both parties wherein both of them put their signature alongwith signatures of Devender Kumar Dhuria as attesting witness. The said bank draft was allegedly given by Sh. Rakesh Kumar Bishnoi to one Sh. G. S. Tyagi, who was Managing Director of M/s Meerut Agro Rice Mill against the sell/purchase/deal of rice. Sh. G. S. Tyagi presented the said bank draft to Indian Bank, at Palika Kendra branch on 09th March 1994 for clearance but the same was found forged by the banker and on 11th march, 1994 information was given to Sh. Rakesh Kumar Bishnoi. During investigation, forged draft bearing no. 455931 dated 05th April 1994 and specimen signatures and specimen writings were sent to FSL for expert opinion.
14. To appreciate submissions advanced by Learned counsels, now I advert to material evidence. Suman Mohan (PW-1) deposed that demand drafts, which used to be returned for any reason including the reason of those not being found genuine/fake/stale or post dated. Bhupender Singh (PW-3) deposed that he received a fake demand draft in the sum of Rs. 2,75,600/- dated 05.03.1994 of Sonipat Branch for clearance. He found that the said demand draft was forged and was returned to the concerned bank alongwith memo stating that demand draft was fake. PW-3 deposed that on the basis of stamp used, printing and the paper used and the signature of the concerned official, they found that a demand draft was forged. PW-3 State vs Mukesh Bhatnagar etc. SC 38/2012 12 ID No.02403R1040882008 did not know whether any entry of those instruments was made apart from the statement of the list of instruments. PW-3 did not know whether the genuine stamp used in printing and the paper used as well as the signature of the concerned official were supplied to the police by the branch manager.
15. On being asked about the original demand draft, PW-3 stated that they had sent the original demand draft to the concerned Bank from where it was sent for clearance through RBI and Police had shown him only photocopy of demand draft. PW-3 admitted that the demand draft in question had not gone through his hands. Garib Dass (PW-6) deposed that specimen signatures book was maintained and kept in the bank but he did not know if police recovered the said book or not. PW-6 personally had not made any entry in the returning register maintained in the bank. PW-6 admitted that personally neither he handed over any document nor had informed the police. Mahender Kumar Verma (PW-4) deposed that draft bearing no. 455931 dated 05.03.1994 in the sum of Rs. 2,75,600/- was not issued by the branch of Dena Bank. PW-3 stated that photocopy of demand draft (Ex. PW3/A) did not bear his signatures at the relevant time. He stated that the stamp affixed on (Ex. PW3/A) does not pertained to their bank. On the copy (Ex. PW3/A) "SONIPAT" was mentioned whereas, in their stamp "SONEPAT" was mentioned and (Ex. PW3/A) was different from the draft block used by their bank. PW-4 could not tell if he had given any specimen signatures or rubber stamp of their branch to the police. PW-3 could not tell whether details of genuine demand draft was supplied to the police or not. PW-4 admitted that any employee of his branch had not intimated him anything about the demand draft in question.
16. Ashok Gupta (PW-7) could not tell who signed the pay-in-slip or deposited the instrument. PW-7 admitted that it was not necessary that only the payee of an instrument should deposit the instrument in the Bank. PW-7 admitted that M/s. Meerut Agro Mills Ltd. was a customer of Moti Bagh Branch of their Bank. The pay-in- slip mentioned Cash Credit and name of M/s. Meerut Agro Mills Ltd. and no account State vs Mukesh Bhatnagar etc. SC 38/2012 13 ID No.02403R1040882008 number. PW-7 did not remember if he provided specimen signatures of the account holder of M/s Meerut Agro Mills Ltd. PW-7 admitted that he was deposing as per record and had stated that demand draft was fake only because Dena bank had returned the same alongwith returning memo stating that it was a fake demand draft. he had not personally verified the genuineness of demand draft . PW-7 was not aware who was the proprietor or the partner of M/s Meerut Agro Mills Ltd. PW-7 did not remember if he had taken any action against the depositor after it was revealed to them that the demand draft which was deposited in their branch was fake. Rajiv Chugh (PW-11) deposed that he had not detected personally that the demand draft presented at the counter was fake. Tarun Kumar (PW-12) admitted that he had not seen original as well as copy of demand draft no. 455931 issued on 05.03.1994 for Rs. 2,75,600/- in favour of Sh. Rakesh Kumar issued from Sonipat Branch (already Ex. PW3/A). PW-12 admitted that he had not seen original of the threatening letters (Ex. PW5/B and Ex. PW5/C) in the name of Sh. Rawal. Original demand draft no. 455931 issued on 05.03.1994 for Rs. 2,75,600/- in favour of Sh. Rakesh Kumar issued from Sonipat Branch was not placed before him by Captain Rawal or by any official of the bank for satisfying himself about the correctness of the complaint. On being asked, whether (PW-12) had seen photocopy of the demand draft no. 455931 issued on 05.03.1994 for Rs. 2,75,600/- in favour of Sh. Rakesh Kumar issued from Sonipat Branch, with the complaint (Ex. PW12/A), PW-12 denied and stated that the staff might have attached the copy of the DD with the complaint. PW-12 stated that as far as he could recollect, he had not seen copy of Demand draft (Ex. PW3/A) alongwith the complaint while signing the complaint. Rajesh Kumar Kaushik (PW-19) stated that Inspector M. K. Sharma had seized photocopies of the bank record.
17. FSL report (Ex. PW17/A) obtained by the IO is without comparing the contents of the forged demand draft with the original rubber stamp, printings and paper used in the bank. During investigation, IO had obtained specimen signatures of accused Sunil Sharma for matching the same with the signatures allegedly stated to be State vs Mukesh Bhatnagar etc. SC 38/2012 14 ID No.02403R1040882008 signed by the accused but as per FSL report (Ex. PW17/A) completely disproved the signatures of accused Sunil Sharma on the writing writing as shown against accused could not be proved in view of FSL report (Ex. PW17/A). As per FSL report (Ex. PW17/A) , signatures of accused Sunil Kumar are marked Q-5 on the writing (Ex. PW19/D-1). Sh. S. C. Mittal (PW-17) opined that he had not give any opinion on the questioned handwriting mark Q-3 and Q-5 due to quality and difference were not found between the available questioned and specimen writing. As per the case of prosecution, there was a dealing with Rakesh Kumar Singh Bishnoi, as a result he paid Rs. Three lacs. There is no concrete evidence is on record to establish the dealing of accused Sunil Kumar with Devender Kumar Dhuria regarding property dealing business. After the arrest of accused, no recovery of money was effected and one cheque pertained to Devender Kumar Dhuria. IO has not verified whether Sunil Kumar paid the amount or not. There is no witness to prove settlement deed in question and prosecution failed to prove the said document. The credibility and genuineness of said documents are doubtful.
18. ACP Rajesh Kumar Kaushik (PW-19) had inquired from G. S. Tyagi regarding the whereabouts of the original forged drafts who informed him that the said drafts were with Rakesh Kumar Singh Bishnoi, who was cheated. Admittedly, PW-19 seized the forged original bank draft bearing no. 455931 form Rakesh Kumar Singh Bishnoi but have not been produced or placed on record. Forged draft was allegedly presented in the bank by Sh. G. S. Tyagi, who is stated to have received it from Rakesh Kumar Singh Bishnoi to whom the said drafts were given by accused Devender Kumar Dhuria. IO (PW-19) had not investigated the bank account details of Sh. G. S. Tyagi. PW-19 admitted that he had not collected the company details of M/s Meerut Agro Mill Limited. Sh. G. S. Tyagi is stated to be director of M/s Meerut Agro Mill Limited. IO (PW-19) testified that Rakesh Kumar Singh Bishnoi wanted to purchase some land in Shimla through Devender Kumar Dhuria for which Rs. Three lacs were paid as advance. During investigation, PW-19 admitted that he had not State vs Mukesh Bhatnagar etc. SC 38/2012 15 ID No.02403R1040882008 collected or ascertained the details and the particulars of the land and the deal between Rakesh Kumar Singh Bishnoi and accused Devender Kumar Dhuria could not be materialized.
19. Rakesh Kumar Singh Bishnoi, who was projected as a material witness, was not produced or examined by the prosecution to show that accused Devender Kumar Dhuria had given the alleged forged bank draft to him. Sh. G. S. Tyagi , as per the case of prosecution , was handed over the forged draft in question to him by Rakesh Kumar Singh Bishnoi, who was not examined. Prosecution failed to establish that Rakesh Kumar Singh Bishnoi was dishonestly induced by any of the accused to see piece of land in Shimla or presented the forged demand draft to him. Photocopy of document is not admissible unless proved to be genuine. If the document in question is a copy of copy and the person who made that copy was not produced by the prosecution as a witness, the document was inadmissible in evidence as per Indian Evidence Act 1872.
20. As per testimony of Suresh Chandra (PW-15) he arrested accused Ram Kishan and his disclosure statement was recorded. PW-15 had not stated about any alleged fake currency being recovered in his presence or whether the said currency was sealed by the him or was kept with him after following the process of law. Seizure memo (Ex.PW15/B) is having signatures of accused Ram Kishan, Suresh Chandra (PW-15) and M. K. Sharma (PW18) but it is no where mentioned at what point of time personal search of accused Ram Kishan was conducted. No public person was joined at the time of conducting investigation with regard to alleged seizure of fake foreign currency from accused Ram Kishan.
21. SI Jeet Singh (PW-10) deposed that IO had not requested any public person at the station to join the investigation. He had not seen any official of railway protection force at the time of arrest of accused. PW-10 admitted that they had not carried on personal search of the accused at the Railway Station. The personal search of the accused was conducted after returning to the Office of Crime Branch, State vs Mukesh Bhatnagar etc. SC 38/2012 16 ID No.02403R1040882008 where they were arrested. No proceeding other than personal search memo was conducted on 06.04.1994. PW-10 could not tell that disclosure statement of which of the accused was recorded first of all. PW-10 could not tell by what time IO had started to record the disclosure statement of accused. PW-10 could not tell about the presence of any other police official at the time of recording of statement. PW-10 was not sure in which vehicle they had gone to the house of Mukesh Bhatnagar. They did not inform about their visit to the Local Police Station. PW-10 admitted that the number of parts have not been described in the seizure memo (Ex.PW10/J). PW-10 admitted that no public person from the neighbourhood of accused Mukesh Bhatnagar was involved at the time of effecting recovery from the house of accused Mukesh. PW-10 admitted that signature of the mother of Mukesh or any other occupant present there were not obtained on the seizure memo. PW-10 stated that they had not gone inside the shop of the property dealer and accused Devender had met them outside the shop. According to PW-10, he had seen accused Devender earlier about 6 months or 1 year prior to the incident, he had gone to attend a marriage organized by Sh. Y. S. Dhuria (IPS) at Naraina Vihar, where he had met accused Devender. Sh. Y. S. Dhuria was uncle of Devender. PW-10 had also gone at the residence of Devender after the marriage as he was sent there by Sh. Y. S. Dhuria in connection with his some work. PW-10 had accompanied IO once at the residence of Devender Dhuria before 29.04.1994, but he had not met them on that occasion. No writing work was done by the IO at the place from where Devender was apprehended and no inquiry was made from any other person at that time.
22. Rajesh Kumar Kaushik (PW-19) testified that accused Mukesh Kumar Bhatnagar was arrested on 06th April 1994 from the waiting hall of Old Delhi Railway Station. No railway ticket or platform ticket was recovered from the personal search of accused Mukesh Bhatnagar. ACP Rajesh Kumar Kaushik (PW-19) stated that he did not take the specimen signatures of Sh. G. S. Tyagi and Rakesh Kumar Singh Bishnoi. He had not obtained the specimen signature of branch manager of which the State vs Mukesh Bhatnagar etc. SC 38/2012 17 ID No.02403R1040882008 forged drafts were presented by Sh. G. S. Tyagi. The questioned documents and specimen handwritings deposited in FSL for comparison were by some constable and the form was signed by Inspector M.S. Sharma on 06 th June, 1994. Specimen handwriting of accused Mukesh Bhatnagar and Dvender Kumar Dhuria were not taken. PW-19 had not taken the specimen signatures of Branch manager, Dena Bank, Sonipat and the Manager of Union Bank of India. PW-19 did not take the original draft from the bank to compare with the forged bank draft.
23. Kuldeep Chauhan (PW-9) deposed that Mohan Singh had informed the police officials at Police Station Dev Nagar that he had got manufactured blocks for printing bank drafts of Dena Bank from his shop. According to PW-9, Police made no inquiries from him and had obtained his signatures on 1-2 blank papers. Police had not shown him any prints or blocks. Police had asked him to bring his bill book and retained copy of bill book after obtaining signatures of Mohan Singh. PW-9 could not identify as to whether the printing on the said draft was through the block manufactured at his shop or sold to Mohan Singh. Police had not made any inquiries from him. PW-9 admitted that police had recorded his statement on 08th April 1994. PW-9 admitted that police had brought Mohan Singh at my work shop on 08.04.1994. PW-9 had not told to the police that in February - March, 1991, Mohan Singh had come to his shop or had represented himself as Manager of Dena Bank and got printed the stationery of Dena Bank and blocks. PW-9 had not identified the printing on the draft No. 411931 before the police or stated that the said printing was through the block manufactured by him at the instance of Mohan Singh. PW-9 neither denied nor admitted the suggestion that the printing on the draft no. 455931 (Ex.PW3/A) bears the printing of block manufactured by him at the instance of accused Mohan Singh.
24. IO (PW-19) deposed that the blocks which were allegedly used in priting the forged bank drafts were not recovered, therefore, there was no question of sending them to the forensic laboratory for comparison with the original blocks used for printing genuine drafts of the bank. PW-19 had not received original (forged bank State vs Mukesh Bhatnagar etc. SC 38/2012 18 ID No.02403R1040882008 drafts and other documents) sent to the FSL. PW-19 stated that FSL had returned back those original bank drafts and other documents to the office of crime branch, which were 'misplaced' from there.
25. To sum up, prosecution has not placed on record original fake draft in question Prosecution is required to establish its case by primary evidence and secondary evidence or the photographs, copies of documents can only be admitted after prosecution establishes about the whereabouts of the original document or the primary evidence. Prosecution has failed to establish the deal of land at Shimla or any settlement deed between Rakesh Kumar Singh Bishnoi and Devender Kumar Dhuria. There is nothing on record to show that accused Sunil Kumar or Devender Kumar Dhuria had any nexus with co-accused Mukesh Bhatnagar, Ram Kishan or other accused. Material witnesses namely Rakesh Kumar Singh Bishnoi , L. N. Verma , G. S. Tyagi and Nigam were not examined. Prosecution has withheld material witnesses namely Rakesh Kumar Singh Bishnoi and G. S. Tyagi , therefore, an adverse inference can be drawn against prosecution. Admittedly, specimen signatures of the accused persons were not taken in the presence of Magistrate. As regards recovery of two counterfeit Lira notes allegeldy recovered from accused Ram Kishan is concerned, it is highly doubtful, as said currency notes were not sealed by the IO. There is no explanation for not sealing the counterfeit notes. There is no report of any expert of Government press that the currency notes were in fact counterfeit.
26. On appreciation of the evidence noted above as a whole, this Court is of the view that prosecution has failed to establish charges against the accused beyond reasonable doubt and accused are entitled to benefit of doubt. In the result, accused persons, namely, Mukesh Bhatnagar, Ram Kishan, Devender Kumar Dhuria and Sunil Kumar are hereby acquitted from the charges. File be consigned to record room u/s 299 Cr. PC as PO file.
State vs Mukesh Bhatnagar etc. SC 38/2012 19 ID No.02403R1040882008 announced in the open court on (Vinay Kumar Khanna) 27th September, 2014 Additional Sessions Judge-04 & Spl. Judge (NDPS) South East, New Delhi State vs Mukesh Bhatnagar etc. SC 38/2012 20