Delhi District Court
State vs Yashpal Tomar on 25 March, 2023
IN THE COURT OF SH. PUNEET PAHWA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST02-027228-2017
IN THE MATTER OF:
State Vs Yashpal Tomar
FIR No.09/2015
PS Crime Branch-South
U/s 420/511/468/471 IPC
JUDGMENT
A) Sl. No. of the case : CR No. 297/2018
B) The date of commission of : 07.01.2015
offence
C) The name of the complainant : Mr. M. L. Nandwani, Sr. Staff
Officer, UPL, CMD's Secretariae
NTPC Ltd. Scope Complex New
Delhi.
D) The name and address of : Yashpal Singh Tomar, S/o Late Sh.
accused Bhagat Singh, R/o House No.1/8,
Kabool Nagar, Shahdara, New
Delhi.
E) Offence complained of : 420/511/468/471/201 IPC.
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 25.03.2023
DATE OF INSTITUTION : 20.12.2017
Digitally signed
by PUNEET
DATE OF FINAL ARGUMENTS : 08.02.2023
PUNEET PAHWA DATE OF JUDGMENT : 25.03.2023
PAHWA Date:
2023.03.27
16:36:19 +0530
FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.1 of 20
PS Crime Branch-South
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State, against accused Yashpal Singh Tomar S/o Late Sh. Bhagat Singh. As per charge-sheet, on 07.01.2015 at unknown time at NTPC Ltd., Scope complex, New Delhi, accused sent a FAX/ letter from the office of Dr. S.K. Singh DG Global Need foundation having address 1/8 Double Storey Kabool Nagar for corporate sponsorship for award ceremony " National Talent Competition for Drawing Poster and Do it yourself Kit" NTC 2014" to be held on 13.02.2015 at ICR, Indraprastha and in the letter, a request had been made to NTPC Limited to sponsor award ceremony for Rs. 1,50,000/-. The fax number on the letter was of PM Office and the letter contained endorsement from PMO to award the sponsorship and on enquiry, it was found to be fake one and thereby allegedly attempted to cheat the complainant and other PSUs and thereby, had committed an offence punishable under Section 420/511 IPC. Also, he had forged the signatures of Dr. S.K. Singh and also made false endorsement with intention to cheat the complainant and other PSUs and also used the said forged documents as genuine and thus committed an offence punishable u/s 468/471 IPC.
2. On the basis of the charge-sheet, Court took cognizance of the offences on 12.02.2018, he was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed charge against the accused for offences punishable under Section 420/511/468/471 IPC. Charge was read over and explained to him to which he pleaded not guilty Digitally FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.2 of 20 signed by PUNEET PS Crime Branch-South PUNEET PAHWA PAHWA Date:
2023.03.27 16:36:37 +0530 and claimed trial.
3. During trial, the State examined 12 witnesses viz. PW-1 SI Gurmeet Singh, PW-2 Manohar Lal Nandwani, PW-3 Anshuman Kashyap, PW-4 Mahesh Dubey, PW 5 Deepshikha Deka, PW6 Jiju, PW7 Dr. Virender Singh, PW8 Sunita Tomar, PW9 Sanjay Kumar Joshi, PW10 ASI Pawan Kumar, PW11 HC Ajay Kumar and PW12 Inspector Data Ram.
4. During examination in chief, PW1 SI Gurmeet Singh deposed that on 27.01.2015, he was posted as SI at Inter State Cell, Chankya Puri. On that day, investigation was marked to him. On the basis of that complaint, on 31.01.2015 he made endorsement which is Ex.PW1/A and prepared rukka and handed over to Ct. Ajay for registration of FIR. Ct. Ajay went to PS Malviya Nagar, Crime Branch for registration of FIR. After registration of FIR, Ct. Ajay came back to Chankya Puri alongwith copy of FIR and original rukka and handed over to him. He recorded his statement under section 161 Cr.PC. During investigation, notice under section 91 Cr.PC to provide CDRs of landline FAX of Oil India Office, Noida was issued by ACP, ISC Sh. K.P.S. Malhotra which is Ex.PW1/B. Thereafter, the investigation was marked to SI Data Ram. PW 1 was duly cross examined by Ld. Defence Counsel.
5. During examination in chief, PW2 Retired Senior Staff Officer Sh. Manohar Lal Nandwani, NTPC deposed that on 07.01.2015 while working as Senior Staff Officer to CMD, NTPC, he received a Fax on the Fax machine number 24363050 purported to be from Prime Minister's Office Digitally signed by PUNEET FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.3 of 20 PUNEET PAHWA PS Crime Branch-South PAHWA Date:
2023.03.27 16:36:51 +0530 on one letter head requesting for sponsorship of Rs. 1.5 lacs for the programme of Global Need Foundation. Such sponsorship in NTPC were handled by Director (HR) office. On receiving the Fax in Director (HR) office, his special technical assistant Mr. Patra came to him and enquired whether such sponsorship was to be done. Since in the past, no such requests were directly received from Prime Minister's Officer in CMD, NTPC office, he checked up with Mr. Padi in the office of Principal Secretary to Prime Minister who wanted him to Fax back the Fax received on 07.01.2015. On receiving the Fax, Mr. Padi rang up to say that no such Fax was sent from Prime Minister's Office to CMD, NTPC or Director (HR) office. Thereafter, he filed complaint with ACP, Crime Branch, Chankya Puri. PW-2 was duly cross-examined by Ld. Counsel for the Defence.
6. During examination in chief, PW-3 Anshuman Kashyap stated that he had been authorized by the company to depose in this case on behalf of Sh. Mahender Singh, Legal Incharge vide authority letter Ex.PW3/A. He deposed that he could identify the signatures of Sh. Mahender Singh and the reply dated 30.04.2015 which is Ex.PW3/B is signed by Sh. Mahender Singh as he has seen his signatures in the record of the company on several occasions.
7. During examination in chief, PW-4 Mahesh Dubey deposed that he gave the details of landline number 2336928 to police. The telephone details are Ex.PW4/A in support of the call record, he had also given the certificate under section 65B of the Indian Evidence Act. The said certificate Digitally signed by PUNEET PUNEET PAHWA PAHWA Date: FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.4 of 20 2023.03.27 PS Crime Branch-South 16:37:04 +0530 is Ex.PW4/B. PW Mahesh Dubey duly cross examined by Ld. Defence Counsel.
8. During examination in chief, PW-5 Deepshikha Deka deposed that on 10.01.2017, a notice under section 91 Cr.PC was received in her office which was sent by SI Data Ram. The notice is Ex.PW5/A. She was authorized by Executive Director (HR) and CMD to look into the matter. Thereafter, on 15.02.2017 reply regarding the abovesaid notice was furnished by her on behalf of Executive Director and CMD vide Ex.PW5/B. The letter of Global Need Foundation was received at OIL vide computer diary no. 125/2015 diarised by Secretary, CMD on 06.01.2015. The said letter was annexed with her reply as annexure 1 and Ex.PW5/C (running into 2 pages). PW-5 was duly cross-examined by Ld. Counsel for the Defence.
9. During examination in chief, PW-6 Dr. Jiju P.V., Assistant Director, CFSL deposed that In the year 2015, he was posted at FSL, Rohini as Senior Scientific Officer. He was M.Sc. In Physics, M.Sc. In Computer Science and PhD. In Forensic Physics. He had joined the FSL, Rohini in 2010 and he had examined several documents in his tenure and compared several handwritings and signatures. The exhibits of this case were received on 20.05.2015 from Crime Branch. Questioned writings/signatures were marked as Mark Q1 to Q7 and the specimen handwriting/signatures were marked as Mark S1 to S12. He had examined these documents with the help of scientific instruments under different lighting conditions and he was of the opinion that documents Q1 to Q6 were poor quality xerox in nature and it Digitally signed by PUNEET PUNEET PAHWA FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.5 of 20 PAHWA Date: PS Crime Branch-South 2023.03.27 16:37:13 +0530 was not possible to study the line quality characteristics of strokes and therefore, no conclusive opinion could be given on their comparison with S1 to S9. He further opined that it was not possible to express any opinion on document Q7 in comparison with S9 to S12 in the absence of admitted writings/signatures of the person concerned. His detailed report is Ex.PW6/A. The questioned documents are Ex.PW6/B (colly) and the specimen signatures and handwritings are Ex.PW6/C (colly). PW 6 was duly cross examined by Ld. Defence Counsel.
10. During examination in chief, PW-7 Dr. Virender Singh, Assistant Director, FSL deposed that he was M.Sc., Physics with Electronics, M.Phil, Ph.D in Physics having more than 10 years experience in digital exhibit examination. On 13.05.2015 one sealed parcel with the seal of DR was received at FSL, Rohini. Same was marked to him for examination. He examined the said parcel which was consisting of one HP made laptop and its hard disc (Toshiba) and marked the same as HDD1. He examined the same with the help of available software. The relevant data which could be retrieved from HDD1 was enclosed alongwith his report and were marked from P1 to P4. His report was Ex.PW7/A. The documents P1 to P4 with office stamp are Ex.PW7/B (colly, 4). PW Dr. Virender was duly cross examined by Ld. Defence counsel.
11. During examination in chief, PW-8 Sunita Tomar who was the wife of the accused, deposed that she was housewife and she had studied upto 5th class. She let out second floor of her house to S.K. Singh who was Digitally signed by PUNEET PUNEET PAHWA FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.6 of 20 PAHWA Date: PS Crime Branch-South 2023.03.27 16:37:25 +0530 running NGO in the name of Global Need Foundation from there. She did not know anything else about this case. PW Sunita Tomar was duly cross examined by Ld. APP for the State and Ld. Defence Counsel.
12. During examination in chief, PW 9 Sanjay Kumar Joshi deposed that on 10.01.2017, he was posted as Deputy General Manager Corporate Communication at Deen Dayal Urja Bhawan, ONGC, Vasant Kunj, New Delhi. On that day, notice under section 91 Cr.PC was received by the concerned person of his department. Thereafter, he checked the record of his office and replied to the notice under section 91 Cr.PC. All the details are mentioned in his report dated 16.02.2017 which is Ex.PW9/A and with the attested copy of FAX no. 011-23016857 dated 06.01.2015. The aforesaid FAX is Ex.PW9/B. PW Sanjay Kumar Joshi was duly cross examined by Ld. Defence counsel.
13. During examination in chief, PW-10 ASI Pawan Kumar deposed that on 31.01.2015, he was posted as Duty Officer at PS Crime Branch, Malviya Nagar. On that day, he received Rukka sent by SI Gurmeet Singh through Ct. Ajay. On the basis of the same, he registered FIR No. 9/2015. After registration of the FIR, he handed over the original Rukka and copy of the FIR to Ct. Ajay. The copy of the FIR is Ex. PW10/A (OSR). He had also brought the Rojnamcha Register reflecting DD No. 14, the copy of which is Ex. PW10/B (OSR). Witness was cross examined by Ld. Defence Counsel.
14. During examination in chief, PW-11 HC Ajay Kumar deposed Digitally signed by FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.7 of 20 PUNEET PUNEET PAHWA PS Crime Branch-South PAHWA Date:
2023.03.27 16:37:35 +0530 that on 31.01.2015, he was posted at ISC Crime branch ChankayaPuri as Ct. SI Gurmit handed over him rukka of two pages. He left the office at 2:00 PM and reached Ps Crime Branch Malviya Nagar at about 3:00 PM. He got the FIR registered. He came back at ISC Crime branch Chankayapuri at about 5:00 PM with copy of FIR and original rukka which he handed over to SI Gurmit. On 05.02.2015, he alongwith SI Data Ram, HC Satender and Ct. Virender went to the address of NGO Global Need Foundation, 1/8, Kabul Nagar, Shahdara, Delhi where they met one person namely Yashpal Tomar and he was interrogated by SI Data Ram. During interrogation, accused was not cooperating, however, later on he disclosed that he himself made the signature of Dr. S.K. Singh on the disputed document with the help of Sanjay. Thereafter the accused was arrested vide arrest memo Ex.PW11/A and his personal search was conducted vide memo Ex.PW11/B. Thereafter his disclosure statement was recorded which is Ex.PW11/C. He alongwith SI Data Ram, HC Satender and Ct. Virender seized fax machine make Panasonic, laptop make HP, sample letter, certificate of registration vide seizure memo Ex.PW11/D, Ex.PW11/E, Ex.PW11/F and Ex.PW11/G. IO seized all the case properties with the seal of DR and handed over to him. On next day i.e. 06.02.2015 supplementary disclosure statement of accused was recorded vide memo Ex.PW11/H wherein the accused disclosed that he himself signed the disputed document without the help of Sanjay and Sanjay was the fake person. Witness was duly cross-examined by Ld. Counsel for the Defence.
15. During examination in chief, PW-12 Inspector Data Ram Yadav Digitally signed by FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.8 of 20 PUNEET PS Crime Branch-South PUNEET PAHWA PAHWA Date:
2023.03.27 16:37:46 +0530 deposed that on 05.02.2015, he was posted at ISC, Crime Branch, Chanakypuri, New Delhi as SI and on that day, further investigation of present case was assigned to him. During investigation, he had collected the total calls originated from number 22326928 from MTNL and the same is Ex. PW-4/A and PW-4/B. Notice u/s 91 Cr.P.C. was already served upon the ED, MTNL regarding the providing of CDR of landline fax received at 01202488427 installed at office of CMD, OIL, Noida. Perusal of CDR revealed that the fax in question was sent by the MTNL number 22326928. When he checked online directory of the said number, he came to know that the said number was registered in the name of Mrs. Sunita Tomar, w/o Yashpal Tomar. Later on, wife of accused had produced two original bills of number 22326928 and 22321193 and the same were taken into police possession vide seizure memo Ex. PW-8/A. Both the original bills are marked Mark A and B. Both the numbers were registered at the address of accused situated at 1/8 Kabool Nagar, Shahdara.
16. PW Inspector Data Ram Yadav further deposed that on 05.02.2015, he along with HC Satender, Ct. Ajay and Ct. Virender reached at the said address at second floor. Accused Yashpal Singh Tomar was found present. Accused Yashpal Singh Tomar was interrogated upon the fact that whether the fax in question was sent to OIL and NTPC by him or by anyone else. Initially, accused refused the same, however, when sustained interrogation was made, he admitted his guilt and requested for pardon. His disclosure statement was recorded and the same is Ex. PW-11/C. Thereafter, accused was arrested and his personal search was conducted vide memos Ex.
FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.9 of 20
Digitally PS Crime Branch-South
signed by
PUNEET
PUNEET PAHWA
PAHWA Date:
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PW-11/A and 11/B. Accused had pointed towards a fax received make panasonic and stated that the fax in question was sent by said machine and thereafter, the said fax machine was taken into police possession vide seizure memo Ex. PW-11/D. Accused had also got recovered a laptop make HP Pavilion and stated that the letters in question were typed and drafted on said laptop. Thereafter, the same was also taken into police possession vide seizure memo Ex. PW-11/E. Accused had also produced photocopy of certificate of registration for global need foundation and same was also taken into police possession vide seizure memo Ex. PW-11/G. The said photocopy is Ex. D1. Accused had also produced sample letter of global need foundation for national talent competition addressed to Mr. PPG Sarma, CEO of GSPC Gas company Ltd. having original signature of Dr. SK Singh, Director General. The same was also seized vide seizure memo Ex. PW-11/F. The letter is Ex. D2.
17. PW Inspector Data Ram Yadav further deposed that he along with his staff and accused reached at malkhana, PS Crime Branch situated in Nehru place where he deposited fax machine and laptop. He had also seized said fax machine and laptop after preparing pulanda sealed with the seal of "DR". After medical examination of accused, he remained in their custody at his office. He recorded statements of witnesses u/s 161 Cr.P.C. On next day, i.e. 06.02.2015, accused was produced before the Hon'ble court and he was sent to JC. He had also recorded supplementary disclosure statement of accused on 06.02.2015 vide Ex. PW-11/H. During investigation, on 20.04.2015, a notice was served upon Panasonic India pvt. Ltd. to enquire Digitally signed by FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.10 of 20 PUNEET PS Crime Branch-South PUNEET PAHWA PAHWA Date:
2023.03.27 16:38:09 +0530 the fact that whether it was possible to configure any name and number in fax machine. The said notice is Ex. PW-12/A. On 30.04.2015, he received reply from panasonic which is Ex. PW-3/B and it was replied that user can manually feed any number and name to give the identity of the machine. On 19.06.2015, a notice u/s 91 Cr.P.C. was also served upon the Registrar of societies to verify factum of registration of Global Need Foundation. The notice is Ex. PW-12/B. Certified copies of global need foundation with covering letter were provided by Registrar of Societies and same were taken into police possession Ex. PW-12/C (Colly) (running into 5 pages). The registration was found genuine as accused Yashpal Tomar was secretary general in the said foundation. A notice u/s 91 Cr.P.C. was also served upon CMD, OIL to verify the fact that if any fax was received from Global Need foundation to his office. The notice is Ex. PW-5/A. On 15.02.2017, reply was received and it was in affirmative. The said notice is Ex. PW-5/B. A notice was also served upon GM, ONGC regarding verification of fax if any, received in his office. The said notice is Ex. PW-12/D. Reply from ONGC received on 16.02.2017 which is Ex. PW-9/A. The said reply was in affirmative.
18. PW Inspector Data Ram further deposed that on 06.02.2015, specimen signature and handwriting of accused Yashpal Tomar was obtained which is Ex. PW-6/C (Colly) (running into 12 pages). Thereafter, specimen signature / handwriting and recovered document Ex. D2 were sent to FSL, Rohini and report Ex. PW-6/A was received. He had not collected admitted signature of accused. During investigation, he had also sent the laptop in the FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.11 of 20 Digitally signed PS Crime Branch-South by PUNEET PAHWA PUNEET Date:
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FSL and report was received which is Ex. PW-7/A. During investigation, he recorded statement of witnesses u/s 161 Cr.P.C. As accused had sent the fax to OIL, ONGC and NTPC by personating himself as Personal Secretary of Prime Minister and configured the name and number of fax machine as Prime Minister Office and used the same, thereafter, he concluded the investigation and prepared charge-sheet and submitted the same before the Hon'ble Court for judicial verdict. PW Inspector Data Ram Yadav has been duly cross examined by Ld. Defence Counsel.
19. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in his defence. Thereafter, final arguments were heard
20. Thereafter, matter was listed for final arguments. Final arguments of both the parties were heard at length.
COURT OBSERVATION:
21. It is the case of prosecution that on 07.01.2015 at unknown time at NTPC Ltd., Scope complex, New Delhi, accused sent a FAX/ letter from the office of Dr. S.K. Singh DG Global Need foundation having address 1/8 Double Storey Kabool Nagar for corporate sponsorship for award ceremony " National Talent Competition for Drawing Poster and Do it yourself Kit"
NTC 2014" to be held on 13.02.2015 at ICR, Indraprastha and in the letter, a Digitally signed by FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.12 of 20 PUNEET PS Crime Branch-South PUNEET PAHWA PAHWA Date:
2023.03.27 16:38:29 +0530 request had been made to NTPC Limited to sponsor award ceremony for Rs. 1,50,000/-. The fax number on the letter was of PM Office and the letter contains endorsement from PMO to do the award sponsorship and on enquiry, it was found to be fake one and thereby attempted to cheat the complainant and other PSUs and thereby, had committed an offence punishable under Section 420/511 IPC. Also, he had forged the signatures of Dr. S.K. Singh and also made false endorsement with intention to cheat the complainant and other PSUs and also used the said forged documents as genuine and thus committed an offence punishable u/s 468/471 IPC.
22. At the outset, it is pertinent to reproduce the relevant provisions of law which are as under:
(a) Section 420 IPC-Cheating and dishonestly inducing delivery of property- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(b) Section 511 IPC- Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment- Whoever attempts to commit an FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.13 of 20 Digitally signed PS Crime Branch-South by PUNEET PAHWA PUNEET Date:
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offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does not act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life, or as the case may be, one half of the longest term of the imprisonment provided for that offence, or with such fine is provided for the offence, or with both.
(c) Section 468 IPC- Forgery for purpose of cheating- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(d) Section 471 - Using as genuine a forged document or electronic record. - Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.14 of 20 Digitally signed PS Crime Branch-South by PUNEET PAHWA PUNEET Date:
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23. The accused has been charged for committing an offence u/s 420/511, Sections 468 and Section 471 of IPC. As per the prosecution story, a complaint was received from Sh. M.L. Nandwani, senior staff officer with CMD, NTPC Ltd. stating that a fax was received in their office on 07.01.2015 from one Dr. S.K. Singh, DG Global Need foundation. The letter received was for corporate sponsorship form award ceremony " National Talent Competition for drawing, poster and Do it yourself kit" NTC, 2014 to be held on 13.02.2015 at ICCR, Indraprastha, New Delhi. Through this letter, a request was made to NTPC Ltd. to sponsor award ceremony for Rs,. 1,50,000/-. the fax number on the letter was of PMO and the letter contained endorsement from PMO. On verification from PMO, it was found that letter was fake.
24. During investigation, it was revealed that one Yashpal Singh Tomar i.e. the accused herein was the secretary of NGO Global Need Foundation and his wife Sunita was the treasurer. A similar letter was received by ONGC office on 06.01.2015 and CMD, OIL India Ltd. , Noida on 06.01.2015. on the basis of data base maintained by MTNL office, it was revealed that the fax was sent from landline number 011-2232698 and the telephone was subscribed in the name of Sunita Tomar, wife of Yashpal Singh Tomar, the accused having the same address on which the NGO was registered. It has been alleged that the said letters were sent by the accused and thereby he has attempted to cheat the aforesaid companies / PSUs by sending forged letters using forged signatures of Dr. SK Singh. He also used Digitally signed FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.15 of 20 by PUNEET PS Crime Branch-South PUNEET PAHWA Date:
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fake endorsement of PMO with the intention to cheat the complainant and other PSUs and cause wrongful loss to the complainant and wrongful gain to himself.
25. It has been argued by Ld. APP for the State that there is sufficient evidence on record which proves beyond reasonable doubt that it was the accused only who had forged and fabricated the letter by signing the same in the name of Dr. S.K. Singh and sending the same through fax by making necessary modifications in the fax machine due to which the fax received with the complainant had an endorsement of PMO so as to induce the complainant to part with the money by sponsoring the proposed event, as if the said fax has been received from the PMO. On the other hand, ld. Counsel for accused argued that the original complaint was against Dr. SK singh and the accused has been apprehended merely because he was the owner of the premises and the landline number from which the fax was sent was in the name of his wife. Ld. Counsel has further argued that there was neither any inducement nor any cheating on the part of the accused and the prosecution has failed to prove any fact which would show that the accused has committed any kind of forgery so as to gain unlawfully or to cause unlawful loss to the complainant. It has further been argued that the call details / details of the fact show that it was sent at 11:43 and the same was received at 11:36 which is highly unlikely. Moreover, the FSL report also supports the accused as no definite opinion has been given by FSL so as to bring home the guilt of the accused.
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26. The prosecution has examined 12 witnesses in total. In the considered opinion of this court, the witnesses examined by the prosecution only go on to prove the facts that a fax was received at NTPC regarding sponsorship of an event and the said fax had an endorsement of PM's Office. When the complainant Sh. ML Nandwani had enquired from Mr. Padhi in the Office of Principal Secretary to PM, he was informed that no such letter has been sent from the PMO. However, the prosecution has not examined anyone from the PMO office so as to prove this fact as to whether any such letter was being sent from the PMO or not. The complainant was informed on phone that no such request has been sent from the PMO and in the absence of the examination of any person as a witness from the PMO, it can be said to be just a hearsay evidence upon which conviction cannot be based.
27. The witness Sh. Anshuman Kashyap, Assistant Managar, Panasonic PW3 has only been able to show that certain modifications can be done in the fax machine so as to make it look like that the fax has been sent from a particular source and Sh. Mahesh Dubey, Deputy Manager, MTNL, PW4 has only been able to show that a fax was sent from the number 011- 2336928. In his cross examination, he admitted that the fax sent by the number 011-22326928 to the number 012-02488427 at 11:43:11 on 06.15 and was received after 248 seconds. These facts are not sufficient to prove criminality of the accused so far as the present case is concerned. The depositions of Ms. Deepshikha Deka, GM, OIL India Ltd., PW5 and Dr. Jiju, Assistant Director, CFSL, PW6 are of not much relevance either.
Digitally signed by PUNEET PUNEET PAHWA PAHWA Date: FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.17 of 20 2023.03.27 16:39:26 +0530 PS Crime Branch-South
28. The evidence of Dr. Virender Singh, Assistant Director, FSL, PW7 is to the effect that data was received from the laptop and its hard disk which after analysis show that there were certain letters stored in the said hard disk and thus it was the accused only who would have sent the said letter to the complainant. PW8 is the wife of the accused who has not at all supported the case of the prosecution. PW9 Sh. Sanjay Kumar Joshi, GM, ONGC has deposed to the extent that similar fax was received to their office also which is also not relevant so far as the present case is concerned. Remaining witnesses are official in nature.
29. Moreover, for the purpose of offence u/s 468/471 IPC, the first and foremost requirement for the prosecution is to prove that forgery of a document has been committed by the accused. Section 463 of IPC defines forgery and Section 464 of IPC provides for making a false document. Making a false document as provided u/s 464 of IPC is a sine qua non for commission of an offence of forgery as defined u/s 463 IPC. Thus, unless and until it is proved by the prosecution that the accused has been guilty of making a false document, he cannot be held guilty of committing forgery and in turn, he cannot also be held committing any offence u/s 468/471 IPC which are the aggravated forms of forgery. Only an official from the PM office could have proved the fact that no such letter was sent from the office and since the prosecution has not examined any person from the PM office, it cannot be said that any offence of forgery has been committed at all. Similarly, there is nothing on record which would show beyond all reasonable doubt that the accused had attempted to commit the offence of FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.18 of 20 Digitally signed by PS Crime Branch-South PUNEET PUNEET PAHWA PAHWA Date:
2023.03.27 16:39:35 +0530 cheating so as to make him liable u/s 420/511 IPC.
30. It is a cardinal principal of criminal jurisprudence that every accused is presumed to be innocent unless rebutted by prosecution evidence beyond all reasonable doubts. It should not stand on weakness of defence and it shall stand or fall on its own merits. Falsity of defence plea would not establish prosecution case. The court cannot make out a new case for prosecution and convict the accused on that basis. A false plea by defence can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused. Conviction cannot be sustained if the court is satisfied that the prosecution theory may be true, it must satisfy itself that it must be true.
31. It has been held by the Hon'ble Supreme Court in number of cases that Suspicion or conjuncture, however strong it may be, is not equal to legal proof. Suspicion cannot take the place of proof. The sea of suspicion has no shore and the court that embarks upon it is without rudder or compass.
32. In view of the above, this Court has no hesitation in holding that the prosecution has miserably failed to prove its case against the accused beyond all the reasonable doubts and to bring his acts and conduct within four corners of the said provisions of law constituting any of such offence or within legal ambit which would warrant his conviction and punishment under Section 420/511, Sections 468 and Section 471 of IPC. In view of the cardinal principle of law that prosecution must prove the guilt of the accused Digitally FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.19 of 20 signed by PUNEET PS Crime Branch-South PUNEET PAHWA PAHWA Date:
2023.03.27 16:39:44 +0530 beyond reasonable doubts and every benefit of doubt must be given to the accused, hence, the accused is entitled to every benefit arising due to lacuna's in the prosecution case.
33. In view of the above discussions, it is held that the prosecution has failed to prove its case against the accused and has not been able to prove the charge for the offence punishable under Section 420/511, Sections 468 and Section 471 of IPC against the accused. Accordingly, The accused Yashpal Singh Tomar, S/o Late Sh. Bhagat Singh, is hereby acquitted for the offences punishable under Section 420/511, Sections 468 and Section 471 of IPC. Accused is directed to furnish necessary bail bonds under Section 437A CrPC.
34. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
35. File be consigned to Record Room, after due compliances.
PUNEET Digitally signed by PUNEET PAHWA PAHWA 16:40:04 +0530 Date: 2023.03.27 (PUNEET PAHWA) CHIEF METROPOLITAN MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court On 25th March, 2023 FIR No. 09/2015 State Vs. Yashpal Singh Tomar Page No.20 of 20 PS Crime Branch-South