Delhi District Court
State vs . Ram Sewak & Ors. on 29 January, 2020
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE02, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI
PRESIDIING OFFICER: SH. GAJENDER SINGH NAGAR
STATE VS. RAM SEWAK & ORS.
FIR NO. 26/2002
PS: BARA HINDU RAO
U/S: 420/471/34 IPC
JUDGMENT
CIS No. : 292748/16
Date of commission of offence : 29.07.2001
Date of institution of the case : 27.04.2002
Name of the complainant : Sh. Ved Prakash Gandhi
Name of accused and address : (1) Ram Sewak
S/o Sh. Net Ram
R/o Tulsi Colony, near
Adarsh Vidhyalaya,
Ganesh Pura, Muraina,
M.P.
(2) Pratap Singh
S/o Sh. Sita Ram
R/o Ganesh Pura,
Muraina, M.P.
(3) Mohan Kumar
S/o Sh. Rajender Singh
FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 1/24
R/o Ganesh Pura,
Muraina, M.P.
Offence complained of or proved : U/s 420/471/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Accused persons namely
Pratap Singh and Mohan
Kumar are convicted for
the offences punishable
U/s 420, 471 r/w Section
467 and 34 IPC.
Accused Ram Sewak is
acquitted.
Date on which reserved for judgment: 15.01.2020
Date of judgment : 29.01.2020
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons namely Ram Sewak; Partap Singh and Mohan Kumar pursuant to chargesheet filed by PS Bara Hindu Rao U/s 420/468/471/34 IPC subsequent to the investigation carried out by them in FIR No. 26/02.
2. Brief facts of the case are that on 22.01.2002 complainant Sh. Ved Prakash Gandhi wrote a complaint to SHO, P.S. Bara Hindu Rao stating therein that he is doing work of fabric cloth at M/s Chunni Lal FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 2/24 & Sons, 308, Azad Market, Delhi110006 and is having current account in Jammu & Kashmir Bank, Sadar Bazar, Delhi. It is stated that on 30.07.2001 a person introduced himself as Ashok Singh came at his shop with two other persons. The said person also visited the shop 23 days ago and inquired about the price of fabric cloth. On 30.07.2001 the said persons handed over a bank draft bearing no. 892410 dated 27.07.2001 amounting to Rs. 2,05,000/ to complainant for purchase of fabric cloth on cash discount, complainant agreed to give cash discount and said that he can supply goods only after clearance of draft. On 31.07.2001 draft was presented in the bank. The same was cleared. Thereafter, the goods were supplied at the address given by said Ashok Singh i.e. Ashok Singh, S/o Sh. Ramji Lal, R/o Islampura, Mauraina, Madhya Pradesh. The goods were transported through Aggarwal Maharashtra Transport having office at 94, Ram Nagar Market, Qutub Road55. The goods were sent by way of four bills dated 02.08.2001, 02.08.2001, 03.08.2001 and 11.08.2001. On 15.09.2001 banker of the complainant informed him that draft deposited by him was forged. On 25.09.2001 bank issued a notice to complainant for recovery of Rs. 2,05,000/. Thereafter, the bank also filed a Civil Case against him for recovery. On the basis of this complaint, FIR was registered. During investigation accused persons were arrested in the present matter. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable U/s 420/468/471/34 IPC.
FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 3/243. Complete set of chargesheet and other documents were supplied to the accused persons. After hearing arguments, charge for offences punishable under section 420/471/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 11 witnesses in total.
5. PW1 Sh. Ved Prakash Gandhi deposed that he is running shop of fabric clothes and plastic tubes at 308, Azad Market, Delhi110006. It is stated that he was having current account in the Bank of Jammu & Kashmir, Sadar Bazar. It is stated that on 31.07.2001 at about 12:00 noon two persons came to his shop. He can identify them, if shown to him. It is stated that one of them disclosed his name as Ashok Singh. This witness identified accused Mohan Dandotia as person who had disclosed his name as Ashok Singh and correctly identified him in the Court. He also identified accused Pratap Singh as the other person accompanying accused Mohan Dandotia on 31.07.2001. It is stated that these two accused persons handed over a bank draft of Rs. 2,05,000/ to him and asked him to supply goods on that he told them he would supply goods only after clearance of draft as the said persons were unknown to him. The accused persons agreed to receive the goods only after clearance of the draft. On FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 4/24 31.07.2001 he deposited the draft in bank which was cleared on 02.08.2001 on that he supplied goods in four lots approximately on different dates which took about 1820 days. It is stated that around 15.09.2001 he received a telephonic call from Jammu & Kashmir Bank informing him that the draft in question was forged one. It is stated that on that day there was an amount of Rs. 1,71,000/ in his account. The bank officials asked him to deposit the balance amount (i.e. 2,05,000 - 1,71,000/). It is stated that Jammu & Kashmir Bank seized his bank account and gave a notice to pay a sum of Rs. 2,05,000/ to him. It is stated that the bank also filed civil case against him. It is stated that he consulted a number of persons. In the meantime, he saw one newspaper report qua theft of draft book from the bank probably of Bank of India, Muraina Branch. He made a complaint Ex. PW1/A to the police. It is stated that in the month of January, 2002 he visited the Court for making an enquiry about his case from Advocate. On that day he had seen the accused Mohan with the police officials. He immediately identified accused Mohan being same person who has disclosed his name as Ashok to him at the time of incident. He could not tell as to when he had seen the accused Pratap again after lodging of FIR. He could not identify the third accused namely Ram Sewak. This witness was crossexamined by Ld. APP for the State. Even in his crossexamination by Ld. APP, he could not tell if he had seen accused Pratap alongwith accused Mohan with the police. It is stated by him that he might not have noticed about presence of accused Pratap with IO on that day, however it is confirmed by him that accused Pratap is the same person FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 5/24 who visited his shop with accused Mohan (Ashok Singh). It is stated that due to lapse of time he could not remember if there were three persons or two on 31.07.2001, though it is stated by him that his statement, Ex. PW1/A reflecting about three persons at his shop is true. It is stated by this witness that he cannot say if accused Ram Sewak was also accompanying other two accused persons on 31.07.2001. In his crossexamination on behalf of accused Mohan Dandotia, it is denied by him that IO has shown him the accused Mohan today outside the Court. It is stated that the name of his firm is Chunni Lal & Sons, on that attention of this witness was drawn to the photocopy of draft, Ex. PW1/A wherein name of payee was mentioned as M/s Chunni Lal Sons (Delhi). On confrontation it is again stated by him that name of his firm is M/s Chunni Lal & Sons. It is stated that he has not given any receipt after receiving the draft from the accused persons. It is stated that accused persons were not given supply order in writing to him, however he had put down the address where goods were to be sent and has also noted down the order of the accused persons. It is also stated that he has not given the buyer copies (duplicate copy) of the order to the accused persons duly signed by him. It is stated that the Court Room No. 50 situates on the ground floor of Tis Hazari. It is stated that on 28.01.2002 he came to meet his counsel at Tis Hazari Courts and he also visited the premises of Tis Hazari Courts. He could not tell on which floor his advocate met him. It is stated that accused Mohan alongwith police met him on the first floor, however he could not tell in front of which Court Number the accused met him due to lapse of about five years. It is FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 6/24 stated that he had lodged the FIR after about five months of incident. It is stated by him that he could not hand over original challan to IO as the same has to be sent to the buyer. It is stated by him that he has handed over the receipt of the registry to the IO. However it is observed by the Court that the carbon copies of the bills are not on record and only photocopies are on record which are marked as Mark B and MarkC. In his crossexamination on behalf of accused Pratap, it is stated by him that he has seen the accused Pratap after the day of incident today (i.e. 03.08.2006) in the Court. It is admitted by this witness that he has not identified accused Pratap in any judicial TIP (it is to be noted that no judicial TIP of accused Pratap was conducted in the present matter). It is admitted by him that he does not know accused Pratap by his name to the police. It is admitted that he does not disclose the physical description of accused Pratap. It is stated that he does not know as to when the accused Pratap was arrested. It is admitted that police did not inform him about the arrest of accused Pratap. He could not tell parentage of accused Pratap, thought it is stated that as per his knowledge accused Pratap belongs to Village Muraina. It is stated that during investigation, only once he was called in the police station where he identified the accused whose name he does not remember, though it is stated that accused Pratap was not present there.
6. PW2 W/SI Shivani exhibited carbon copy of FIR as Ex. PW 2/A and his endorsement on rukka as Ex. PW2/B. FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 7/24
7. PW2A Ct. Nagender deposed that on 30.01.2002 he alongwith Ct. Rajesh Kumar, SI Tara Chand and accused Mohan Kumar and Pratap Kumar went to District Mauraina, Madhya Pradesh where IO met to Manager, Bank of India, Mauraina, Madhya Pradesh and took his specimen signature. Thereafter, they went to Aggarwal Transport Company, Mauraina from where IO took the documents of delivery of goods. On the next day, they went to Gwalior and met with the another Manager of Bank of India and took his specimen signatures. Thereafter, they came back to Delhi. It is stated that on 02.02.2002 accused Pratap was taken by IO to Azad Market where accused pointed out the place of occurrence. IO prepared pointing out memo, Ex. PW2/A. He correctly identified both the accused persons present in the Court. In his crossexamination on behalf of accused Mohan Kumar, he could not tell the DD Entry qua departure of police party for Mauraina. He could not tell whether tickets of accused persons were taken or not. He could not tell the distance between Bank of India, Mauraina and Transporter Office. He could not tell the description, age, name etc. of the person who met him at Transport Office. PW5 HC Rajesh deposed on the same lines as averred by this witness.
8. PW2B Sh. Ramesh Singh Bhedoriya deposed that on 31.01.2002 he was working as Bank Manager at Bank of India, Mauraina, Madhya Pradesh. It is stated that on 23.08.2001 one book FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 8/24 containing 25 leaves bearing no. 892401 to 892425 were stolen from their branch. It is stated that he came to know about this fact from Cannaught Place, Bank of India by draft no. 892410. It is stated that when he inquired about the said draft, he could not found book of these leaves in his branch. It is stated that during investigation, he came to know that one casual labour Ram Sewak had stolen the said book, so he lodged the case in this regard at P.S. Mauraina. On 31.01.2002 IO of this case came to him and shown him the draft no. 892410, on that he apprised him that the draft is containing forged signatures of this witness and Sh. J.P. Sharma. It is stated that IO obtained his specimen signatures on some other papers. This witness was not crossexamined on behalf of accused persons despite opportunities.
9. PW3 Sh. M.K. Aggarwal (employee of Bank of India) deposed that he handed over the original draft presented in clearing to Sh. Tara Chand who was police official. He identified his signatures on seizure memo of draft at PointA which is Ex. PW3/A. It is admitted by him on the question being asked by Ld. APP for the State that he had handed over the draft to police official on 17.04.2002 and it was bearing no. 892410. In his crossexamination on behalf of accused persons, it is admitted by him that he had handed over the draft in question to police official without taking permission from his senior officier. It is stated that he had asked from his senior official for handing over the draft in question to police on telephone.
FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 9/2410. PW4 Sh. Brahma Aggarwal (owner of M/s Aggarwal Maharashtra Transport) deposed that in the year, 2001 they had received four bilties from their office at 94, Ram Nagar Market, Qutub Road, Delhi. The bilties were booked from Chunni Lal & Sons, 308, Azad Market, Delhi in favour of Ashok Singh. It is stated that on 04.08.2001 the bilties vide delivery memos no. 27318, 27319 and 37320 were got released by a person who disclosed his name as Ashok Singh accompanied by 23 more persons and on 13.08.2001 bilty vide delivery memo no. 27474 was got released by aforesaid Ashok Singh and goods were carried by Ashok Singh on rickshawrehris. It is stated that police officials from P.S. Bara Hindu Rao, Delhi made enquiries form him regarding the said bilties and he handed over photocopies of aforesaid delivery memos to the police which were seized by the police vide seizure memo, Ex. PW4/A. The photocopies of delivery memos were collectively exhibited as Ex. P X. This witness was not crossexamined on behalf of accused persons despite opportunity.
11. PW6 Inspector Naresh Kumar deposed that on 15.01.2002 he was posted as Incharge, P.P. Ballimaran, P.S. Chandni Chowk and was IO of case bearing FIR No. 201/01, P.S. Chandni Chowk. It is stated that during investigation, he reached at Tis Hazari Court and with the permission of Court interrogated accused persons Mohan and Pratap in lock up. He correctly identified the accused Pratap. It is FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 10/24 stated that both the accused persons namely Mohan and Pratap were arrested and their disclosure statements were recorded which were exhibited as Ex. PW6/A and Ex. PW6/B. It is stated that after interrogation of the said accused person, they were produced before Ld. MM in muffled face. On 22.01.2002 accused Mohan led him and Ct. Rajappa to Shop No. 308, Chunni Lal & Sons situated at Azad Market, Delhi. Pointing out memo which is Ex. PW6/C was prepared at his instance. Thereafter, he informed to the P.S., Bara Hindu Rao regarding the involvement of abovesaid accused persons in the present case as disclosed by them. In his crossexamination on behalf of accused persons, it is stated that they reached at the Shop No. 308, Azad Market at about 10/11:00 am. It is stated that he did not prepare site plan of the abovesaid place.
12. PW7 retired SI Tara Chand deposed that on 22.01.2002 he was posted as SI at P.S. Bara Hindu Rao when investigation of the present case was marked to him. It is stated that he has received the complaint which is already Ex. PW1/A on the basis of which FIR already Ex. PW2/A was registered. It is stated that he received information from P.P. Ballimaran, P.S. Chandni Chowk that accused Mohan and Pratap were arrested in an another case who have disclosed about their involvement in the present case. Accordingly, he appeared in the Court of P.S. Chandni Chowk where he moved an application for interrogation as well as formal arrest of the accused persons. With the permission of the Court, he recorded disclosure FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 11/24 statements of accused persons namely Mohan Lal and Pratap Singh which are exhibited as Ex. PW7/A and Ex. PW7/B, respectively. He formally arrested the accused persons namely Pratap Singh and Mohan Lal vide memos Ex. PW7/C and Ex. PW7/D, respectively. It is stated that after arrest accused persons were again produced before the Court and were taken on seven days PC remand. It is stated that both the accused persons correctly identified. It is stated that during police custody accused persons were taken to Mauraina in Madhya Pradesh where they reached at Aggarwal Transport. It is stated that the proprietor of the said transport stated that one person namely Ashok Kumar bailed out the bilty. Thereafter, they went to State Bank of India, Mauraina Branch where he recorded the statement of Bank Manager. Thereafter, they went to Gwalior where he also recorded statement of Bank Manager of State Bank of India and obtained his signatures in the statement. He seized certain documents taken from the Bank Managers vide seizure memos were already Ex. PW4/A and Ex. PW5/A. It is stated that he also took specimen signatures of Sh. Chunni Lal on five sheets which are collectively exhibited as Ex. PW7/E1 to Ex. PW7/E6. It is stated that he had prepared pointing out memo of place of shop of the complainant at the instance of accused Pratap Singh which is already Ex. PW2/A. He seized builty already marked as PX and the draft which is Ex. PW 1/DA seized from the complainant Sh. Chunni Lal vide seizure memo already Ex. PW3/A. It is stated that the same were sent to FSL for forensic examination alongwith the specimen signatures of Sh. Chunni Lal. It is stated that he had taken the handwritings of accused persons FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 12/24 Mohan vide seizure memo Ex. PW7/F and accused Pratap and had sent the handwritings of both the accused persons to FSL, Rohini. It is stated that he had taken the specimen signatures of Sh. Ramesh Singh Bandoria, Manager, Bank of India, Mauraina vide seizure memo which is already Ex. PW5/A. This witness also seized the two challans and two builties of the case property in question from the complainant already marked as MarkB, MarkC, MarkD and Mark E. It is stated that complainant had also handed over the ledger account and two other papers which are marked as MarkF, MarkG and MarkH. This witness correctly identified the draft in question, Ex. PW1/DA. In his crossexamination, it is admitted by him that he has not recovered any case property in the present case. It is admitted that there is no specimen signature of accused Pratap Singh on the record. It is admitted that he had verified the builties and challan marked as MarkB, MarkC, MarkD, MarkE, MarkF, MarkG and MarkH from the Aggarwal Transport, Mauraina. It is admitted that original builty had not been seized from the accused persons. It is denied by him that he has not seized the second true copy as no such offence had been made out in this case. It is admitted that draft in question is in the favour of M/s Chunni Lal & Sons. It is stated that complainant did not accompany him when he visited Mauraina for investigation. It is admitted by him that he did not verify the delivery memo/ slips with the builties of the complainant. It is stated that he had obtained the specimen handwriting of accused persons namely Mohan and Pratap in the P.S. It is admitted that he did not move any application before the Court for getting permission for obtaining FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 13/24 handwriting of accused persons. It is admitted that accused Mohan did not sign on Ex. PW8/A1 to Ex. PW8/A11, however it is stated that he had obtained handwriting of accused Mohan on Ex. PW8/A1 to Ex. PW8/A11. It is admitted that there is no signature of bank official Sh. Ramesh Bandoria on record.
13. PW8 Sh. Devak Ram (retired Assistant Director (Documents) deposed that on 29.08.2002 he was posted at FSL, Malviya Nagar as Senior Scientific Assistant in the Documents Division. On that day, certain documents i.e. questioned Q1, Q2 and Q2/1 on the bank draft bearing no. 892410 which is already Ex. PW1/DA alongwith specimen writing and signatures marked as MarkS1 to MarkS11 of Sh. Mohan Kumar Dandotia which is exhibited as Ex. PW8/A1 to Ex. PW8/A11 were compared. It is stated that no conclusive opinion could be given in the absence of admitted writing/ signatures of Sh. Mohan Kumar Dandotia. He exhibited his detailed report in this regard as Ex. PW8/B. In his crossexamination on behalf of accused persons, it is stated by him that the writing written by blue pencil as Q1, Q2 and Q2/1 on Ex. PW1/DA are in his handwriting.
14. PW9 Sh. J.P. Sharma deposed that he has retired as Senior Branch Manager from Bank of India. It is stated that in the year, 2002 IO of the present case came to him at Phool Bagh Branch, Gwalior and shown him a draft bearing no. 892410 on that he informed him that the said draft did not bears his signatures anywhere. It is stated FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 14/24 that there was procedure in the bank, if bank issued bank draft more than Rs. 50,000/ than it is required to be signed by two officers of the bank minimum scale he and above. It is stated that IO had also obtained his signatures on three papers. The bank draft already exhibited as Ex. PW1/DA has been shown to this witness to which he states that the said bank draft does not bears his signatures. It is stated that one person applied for a demand draft of Rs. 100/ from their branch much prior to the date of incident on which he had signed. It is again stated by him that the draft in question i.e. 892410 already Ex. PW1/DA does not bear his signature. It was observed by the Court that the documents bearing specimen signatures of this witness are not on record. In his crossexamination on behalf of accused persons, it is stated by him that the statement, Ex. PW9/D1 available on record is his own, though his name has been mentioned as S.P. Sharma. It is stated that he was never informed and was not aware that his name had been wrongly mentioned as S.P. Sharma instead of J.P. Sharma. It is stated by him that there used to be single signatures on draft of Rs. 100/. He could not tell if signatures of Sh. R.S. Bhadauria had been obtained on any draft. A question was put to this witness that whenever a draft is prepared, he mention a secret code of bank, in the absence of which no draft could be encashed on which it is admitted by him that such a code is mentioned. It is stated by him that in his considered view upon seeing the draft Ex. PW1/DA, the said draft is complete in all respects, except that the signatures thereupon are forged. It is stated that he had not explained the system of punching the drafts to any person who had obtained the draft from him. A FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 15/24 question was put to him whether the draft in favour of Chunni Lal & Sons was encashed in favour of Chunni Lal & Sons to which it is stated by him that he has no concern with the said facts.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
15. Statements of accused persons recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them. It is stated by them that they have been falsely implicated in the present case. Accused opted to lead defence evidence. However, no defence witness could be examined.
ARGUMENTS:
16. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimonies have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offences punishable U/s 420/471/34 IPC are proved beyond doubt.
17. On the other hand, Ld. Counsel for accused persons has stated that name of the firm of the complainant is M/s Chunni Lal & Sons, while the bank draft is in the name of payee M/s Chunni Lal Sons (Delhi), thus it can be said that the said bank draft was not in the name of the firm of the complainant. There is no document on record to FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 16/24 show if any order was placed by accused persons. No receipt was issued by the complainant qua receiving of draft in question. The complainant could not tell in front of which Court at Tis Hazari Courts, he has seen the accused Mohan Kumar. The FIR has been lodged after five months which raises question qua its genuineness. It is argued that only xerox of the bills are on record and their originals are not on record. It is argued that complainant could not tell the date when he saw accused Pratap Singh in the Court. It is stated that it is highly improbable that PW2B Ramesh Singh Bhedoriya when saw the demand draft on 31.01.2002 came to realize that one book containing leaves of demand drafts was stolen from their branch on 23.08.2001. Nothing was recovered from the possession of accused persons. Specimen signatures of Sh. Ramesh Singh Bhedoriya and Sh. J.P. Sharma were not sent to FSL for comparison. It is argued that the bank draft was genuine as same is bearing coding from the bank. It is further argued that prosecution has failed to prove the case against the accused persons beyond reasonable doubt. Hence, accused persons are entitled to be acquitted.
FINDINGS:
18. Arguments adduced by Ld. APP for the State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
19. Section 420 IPC provides punishment for cheating. Section 471 FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 17/24 IPC provides punishment for using forged documents. In order to prove offence U/s 420 & 471 IPC against accused persons following facts are required to be proved in the present case :
(i) Demand draft bearing no. 892410 is the forged document i.e. bearing forged signatures of the bank officials.
(ii) The accused persons had used the said forged demand draft bearing no. 892410.
(iii) The said forged demand draft was used as genuine by the accused persons to cheat the complainant Sh. Ved Prakash Gandhi which resulted into wrongful loss to the complainant.
20. It is stated by Ld. Counsel for accused persons that demand draft in question is genuine one as the same is having due coding and punching from the bank, hence it cannot be termed as forged demand draft. This contention is not tenable as the demand draft in question purports to have been signed by two bank officials namely Sh. Ramesh Singh Bhedoriya and Sh. J.P. Sharma. Both the said bank officials have been examined in the Court as PW2B and PW9. Both of them have denied their signatures on the demand draft in question. It is also to be noted that PW2B Sh. Ramesh Singh Bhedoriya has got registered an FIR in Mauraina qua theft of a book of demand drafts containing 25 leaves bearing no. 892401 to 892425 (i.e. including draft in question i.e. 892410) from their branch. Both the said witnesses have not been crossexamined on behalf of accused persons despite opportunities, thus the testimonies of both these witnesses FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 18/24 remain uncontroverted and unrebutted. From the testimonies of both these witnesses, it has been proved that their signatures on the demand draft in question are forged. The forgery of demand draft would fall U/s 467 IPC as it is a valuable security.
21. Though specimen handwriting of accused persons were sent to FSL to compare if they are the one who had forged the demand draft in question, however no positive report can be given on the same, hence it cannot be said that the accused persons are the one who had forged the demand draft. Nonetheless there are evidences on record qua use of the forged demand draft by two of the accused persons, as discussed herein below.
22. The complainant had categorically identified accused Mohan Kumar as the person who impersonated as Ashok Singh to him. He also identified accused Pratap Singh as the person accompanied accused Mohan Kumar to his shop. It is also stated by him that these two were the persons who had handed over the demand draft in question to him. Both these accused persons have been correctly identified by the complainant in the Court. Though in his complaint complainant had stated that three persons came to his shop to purchase the articles and to hand over the demand draft, however he could not identify accused Ram Sewak in the Court despite being cross examined on this aspect by Ld. APP for the State. This truthfulness of complainant in not identifying accused Ram Sewak shows that he is a FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 19/24 genuine witness who has not been tutored by any one, further who has correctly identified the accused persons who have induced him to supply the goods by handing over forged demand draft.
23. The contentions of Ld. Counsel for accused persons that complainant could not tell in front of which Court he had seen the accused Mohan Kumar at Tis Hazari Courts or he has failed to tell as to when he had seen accused Pratap Singh in Court or no judicial TIP of the accused persons has been conducted in the present matter, are not tenable as the complainant had correctly identified two of the accused persons in the Court, while categorically stated that he could not identify the third one. No motive would be imputed upon the complainant to falsely implicate the two accused persons. Further the lacunas of police in conducting investigation in the present matter i.e. nonconducting of judicial TIP will not prejudice the case as the complainant has correctly identified the accused persons in the Court. It is established principle of law that the complainant shall not suffer due to the conduct of the police officials and the accused persons shall not be allowed to take benefit of the faulty investigation of the police officials. It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
"The settle position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 20/24 evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
24. It is contended by Ld. Counsel for accused persons that original documents whereby order was placed, any receipt qua receiving of demand draft or any bills have not been proved on record to show if any wrongful loss was occurred to the complainant or any such transaction had actually taken place. This contention is not tenable as it is categorically stated by the complainant that accused persons placed order and handed over demand draft on 30.07.2001. On that complainant had put a condition that only after encashment of the demand draft he would supply the goods. This condition being put by the complainant is very rational and reasonable which shows his genuineness. It is undisputed contention that the demand draft in question was encashed in the account of the complainant on 02.08.2001. It is stated by the complainant that thereafter he supplied the goods in four lots through Aggarwal Maharashtra Transport vide four builties. This contention was corroborated by the testimony of PW4 Sh. Brahma Aggarwal who stated that he is running M/s Aggarwal Maharashtra Transport. It is contended that in the year, 2001 four builties were received at their Qutub Road Office. The same were booked by M/s Chunni Lal & Sons i.e. firm of the FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 21/24 complainant in favour of one Ashok Singh. It is contended that the goods were got released to one Ashok Singh at Mauraina (i.e. accused Mohan Kumar impersonated as Ashok Singh to complainant). This witness was not crossexamined on behalf of the accused persons despite opportunities. Thus, factum of sending the goods by the complainant to fake name and address of Ashok Singh given by the accused persons has been proved on record. The testimony of PW4 also lend credibility to the testimony of the complainant qua facts stated by him. It is to be noted that it is undisputed that demand draft in question was encashed in the account of the complainant firm. It is immaterial that name of the payee in the draft was written as "M/s Chunni Lal Sons (Delhi)" (in Hindi), while infact name of the firm of the complainant was "M/s Chunni Lal & Sons" as its only a insignificant change in the name of the firm as payee. Since banker of the complainant encashed the demand draft in his account, thus this immaterial/ insignificant change in the name of the firm of the complainant is of no consequence. It is stated by the complainant on Oath that he was informed by his banker around 15.09.2001 that demand draft deposited by him and encashed in his account was forged one. Thereafter, bank freezed his account as well as filed civil case against him which shows that wrongful loss has occurred to the complainant due to act of accused persons.
25. The contention of Ld. Counsel for accused persons that in the present matter FIR has got registered by the complainant with the FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 22/24 delay of five months, hence FIR appears to be false, is not tenable as the factum of supply of goods by the complainant to the fake person Ashok Singh (i.e. accused Mohan Kumar impersonated as Ashok Singh to complainant) and encashment of demand draft in the account of the complainant are the undisputed facts in the present matter. It is to be noted that accused persons were arrested in similar kind of case by officials of P.P. Ballimaran, Chandni Chowk who took the accused persons to the shop of the complainant on 22.01.2002. It is on the same day when FIR was got registered by P.S. Bara Hindu Rao. It is possible that till that time complainant might be thinking that demand draft to be genuine. Thus, the delay in filing FIR has been explained.
26. In view of the abovestated discussions, it is hereby held that accused Mohan Kumar (represented himself as Ashok Singh) and accused Pratap Singh (accompanied Ashok Singh) induced the complainant to supply goods by handing over the forged demand draft to him believing that the demand draft is forged one. Consequently, the complainant supplied the goods after encashment of said forged demand draft. Later on, his account was freezed by the bank. Thus, offence U/s 420 as well as 471 r/w Section 467 and 34 IPC are proved beyond reasonable doubt against accused persons namely Mohan Kumar and Pratap Singh. Thus, they are convicted for commission of offences punishable U/s 420, 471 r/w Section 467 and 34 IPC. However, there is no evidence on record in respect of accused Ram Sewak qua fraud or using of forged document, hence he is acquitted FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 23/24 from the present matter.
27. Copies of the judgment be supplied to the accused persons free of cost. Digitally signed by GAJENDER GAJENDER SINGH NAGAR SINGH Date:
NAGAR 2020.01.29
17:11:36
+0000
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR)
COURT ON 29.01.2020 ACMM02 (CENTRAL)DELHI
Containing 24 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) ACMM02 (CENTRAL)DELHI FIR No. 26/02, PS Bara Hindu Rao State Vs. Ram Sewak etc. Page 24/24