Delhi District Court
Civil Suit For Civil Judge/170/1995 on 12 December, 2012
IN THE COURT OF SH. NAVEEN GUPTA, MM,
TIS HAZARI COURTS, DELHI
1. FIR No. : 170/95
2. Date of Offence : 24.07.1995-27.07.1995
3. Name of the complainant : Sh. R.D. Pai, Chief Manager,
Syndicate Bank, Rajinder Palace,
New Delhi.
4. Name, parentage and Address :
of the accused Shesh Nath
S/o Sh. Ram Barai
R/o RZ-213/16, Tuglaka Bad
Extn., Delhi.
Second Address: VPO Vaithara,
PS Ubhav, District Balia, U.P.
5. Offences charged with : Section 420/468/471 IPC.
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving order : 24.11.2012
8. Sentence or final order : Accused is convicted.
9. Date of order : 12.12.2012
JUDGMENT
1. The present case emanated from the complaint of Chief Manager, Rajinder Palace Branch of Syndicate Bank, wherein he averred that M/s Rohit International represented by Prop. Smt. Kiran Anand was maintaining its current account with the branch since April, 1994, vide account no. 2974 (for short 'the impugned account'); the party had FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 1/25 lodged a complaint informing the branch that two cheque nos. 406528 and 406529 amounting to Rs.25,000/- and Rs.40,000/- respectively had not been withdrawn by them and the same had been withdrawn after forging their signature; further, one Shesh Nath (hereinafter referred as 'accused') pretended himself as representative of M/s Rohit International tendered a requisition slip for collection of two cheque books of 25 leaves each on 24.07.1995 purported to have been signed by authorised signatory; M/s Rohit International informed that the requisition slip was also fabricated one and signatures of the authorised signatory was also forged; further, on verification, it was found that sum of Rs.25,000/- and Rs.40,000/ against cheque no. 406528 dated 25.07.1995 and cheque no. 406529 dated 26.07.1995, respectively, had been collected by the accused on the same dates of the cheques. He further averred that presuming that the culprit Shesh Nath would come to the bank for encashing another cheque since he had successfully enashed earlier two cheques; at around 10:30 am, accused came to their branch and tendered a cheque no. 406530 of Rs.50,000/- at the counter; the concerned clerk of current account department issued him a token no. 1; since they had kept a trap, they caught him red handed and handed over to Prasad Nagar police station for necessary action. On receipt of the above said complaint, the present case was registered.
2. After investigation, charge-sheet was filed against the accused. The copies of charge-sheet were supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 420/468/471 IPC to which he pleaded not guilty and claimed trial.
FIR No. 170/95PS: Prasad Nagar State v. Shesh Nath 2/25
3. In support of its version, prosecution examined 11 witnesses. PW-1 Ashok Kumar was cashier at the impugned branch at the relevant time. He stated that on 25.07.1995, he was at the cash counter and gave cash of Rs.25,000/- on a cheque bearing no. 406528 Ex. PW-1/A of M/s Rohit International; on the next date, he had given Rs.40,000/- against the withdrawal of cheque no. 406529 Ex. PW-1/B; third day, one another cheque came for withdrawal of Rs.50,000/-; but counter officer apprehended the accused as he became suspicious. Thereafter, he was called by the Chief Manager of the bank to verify the earlier payment of Rs.25,000/- and Rs.40,000/- to be made to the accused or not. The accused was present before the Chief Manager and he identified the accused as the same person who had earlier withdrawn the two cheques amounting to Rs.25,000/- and Rs.40,000/-. PW-2 Bhanwar Singh who was counter clerk at the impugned branch at the relevant time. He deposed that on 25.07.1995, accused presented a cheque no. 426528 amounting to Rs.25,000/-; after receiving the cheque, he handed over the token to the accused and cheque to PW-8 for clearance; similarly accused presented a cheque no. 406529 on 26.07.1995 and received Rs.40,000/- from the bank; on 27.07.1995, accused again came to the bank and presented a cheque no. 406530 for the amount of Rs.50,000/-; he again handed over the cheque to PW-8 for clearance and token to the accused; after receiving the cheque, PW-8 had a conversation with PW-10 (Chief Manager); he ordered to close the gate of the bank and accused was apprehended. Subsequently, police was called and relevant documents were handed over to the police.
PW-3 Subhash Anand was the authorised signatory of M/s Rohit FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 3/25 International. He deposed that on 26.07.1995, he sent his son Rohit for withdrawal of Rs.50,000/- from his current account; when his son presented the cheque for encashment to the dealing clerk, he informed his son that two payments for Rs.25,000/- and Rs.40,000/- had already been withdrawn from the said account; he had a talk with Chief Manager of the Syndicate Bank that he had not issued any cheque to anybody for the aforesaid amount; he advised him to come in the bank on the next day and lodge his complaint with the bank authority. On the next day i.e. 27.07.1995, he went to the bank and met the Chief Manager; when he was sitting in the cabin of Chief Manager, an information on telephone was given by dealing clerk to the Chief Manager that another cheque of Rs.50,000/- had been presented for encashment; thereafter, accused was apprehended. During cross- examination by the accused, he admitted that he was not known to the accused prior to the present incident. He denied the suggestion that accused was employed as servant with him. PW-4 Ct. Rattan Lal had accompanied the investigating officer on 27.07.1995. He deposed that on that day, he alongwith PW-9 (IO) were on patrolling duty and were present at about 2:00 pm at Rajendra Palace where they met R.D. Pai (PW-10), Chief Manager of Syndicate Bank alongwith accused Shesh Nath and PW-10 had handed over three cheques, specimen signature card and cheque book of 2974; those documents were taken into possession vide memo Ex. PW-4/A. Thereafter, FIR was got registered by the investigating officer through him; disclosure statement of the accused was recorded vide Ex. PW-4/B; accused was arrested vide personal search memo Ex. PW-4/C. The specimen signatures of the accused were taken vide Ex. P-1 to P-24.
FIR No. 170/95PS: Prasad Nagar State v. Shesh Nath 4/25 PW-5 ASI Kalyan Singh tendered the FIR, copy of which is Ex. PW-5/A. PW-6 Ct. Jitender Singh deposed that he deposited the relevant documents at FSL Malviya Nagar on 16.08.1995. PW-7 Kiran Anand was the Director of M/s Rohit International. She deposed that she had authorised her husband to operate the said account. PW-8 is Chandrika Chattopadhyay who was the Assistant Manager at the impugned branch. She deposed that on 24.07.1995, one person namely Shesh Nath came to the bank for issuance of cheque book; on 25.07.1995 and 26.07.1995, he again came for payment of Rs.25,000/- and Rs.40,000/-; after about half an hour another cheque of Rohit International came for encashment; the son of account holder had come for encashment; she casually asked that Rs.40,000/- had been withdrawn only half an hour before; subsequently, she received a phone call from PW-10 at her residence in the evening that sum of Rs. 25,000/- and Rs.40,000/- were not withdrawn by Rohit International; on the following morning, another cheque of Rs.50,000/- was again received for encashment with the same signature i.e. of Shesh Nath; she reported the matter to PW-10. The accused was called in by PW-10. Thereafter, police was informed.
PW-9 is SI S.P. Singh who was the investigating officer. He deposed that the complaint Ex. P1 was marked to him on 27.07.1995. He prepared rukka Ex. PW-9/A and got the present case registered. He tendered site plan Ex. PW-9/B. He further submitted on the similar lines as deposed by PW-4 qua the investigation done on 27.07.1995. PW-10 is R.D. Pai who was the Chief Manager of the impugned branch. He submitted almost on the similar lines as averred by him in his complaint Ex. P1. He tendered his signatures on the seizure memo FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 5/25 Ex. PW-4/A, personal search memo Ex. PW-4/C and disclosure statement of the accused Ex. PW-4/B. PW-11 is Harshvardhan, Assistant Director Documents, FSL, Madhuban, Karnal, Haryana. He tendered the FSL report vide Ex. PW-11/A.
4. After conclusion of evidence, statement of the accused was recorded wherein he stated that he was innocent; one Kamlesh had taken him to the above said bank and he was sitting on the chair in the above said bank; Kamlesh left the bank on the pretext of going to urinal; but he did not return back and bank officials apprehended him. He had not signed any document; however, the signatures etc. were put by only Kamlesh on the above said documents. He did not opt to lead defence evidence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. Ld. APP argued that the accused got two cheque books issued relating to the account of M/s Rohit International and thereafter, got two cheques encashed on 25.07.1995 and 26.07.1995 amounting to Rs. 25,000/- and Rs.40,000/- respectively; subsequently, he (accused) visited the bank again on 27.07.1995 for encashment of another cheque amounting to Rs.50,000/- and was caught by the bank officials. He further submitted that PW-3, who used to operate the impugned account no. 2974 in the bank, and the bank officials, PW-1, PW-2, PW-8 and PW-10, have deposed against the accused in this regard. Further, FSL report tendered by PW-11 too showed that accused had been party to the forgery of the impugned requisition slip for issuance FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 6/25 of two cheque books and drawing of three cheques and thereafter, to the encashment of two cheques and presentation of another (third) cheque and further, the report has negated the signatures of PW-3 on the above-mentioned documents i.e. requisition slip and three cheques. He argued that in this manner, prosecution has proved its case against the accused.
7. Ld. Counsel for the accused argued that there was unexplained delay in registration of FIR. He further argued that no complaint was given by PW-3 who used to operate the impugned account. Further, nothing was recovered from the possession of the accused. Further, the cheque books which had been allegedly got issued by the accused were not produced by the investigating officer. Further, the prosecution did not produce the original requisition slip which must have been available with PW-3. Moreover, PW-8 deposed that the cheques amounting to Rs.25,000/- and Rs.40,000/- were encashed after comparing the signatures of account holder available with the bank with the signatures of drawer put on those cheques; hence, it could not be held that those cheques were forged. Further, infact the son of PW-3 namely Rohit used to withdraw the amount from the account no. 2974 in absence of his father and got the accused falsely implicated in the present case. Further, the investigating officer did not investigate into the case in respect of involvement of bank employees in the alleged cheating and forgery. Further, the investigating officer did not try to search and apprehend co-accused Kamlesh who had been allegedly named by the accused in his disclosure statement. Further, the documents were sent to the FSL without bearing the seal of investigating officer and that too, after unexplained delay. Moreover, FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 7/25 FSL report was also not incriminating against the accused. He lastly argued that in these circumstances, the prosecution has failed to prove its case against the accused.
8. Ld. Defence Counsel has relied upon the precedent: Abdul Karim v.
State of Mysore, AIR 1979 SC 1506, in respect of applicability of Section 471 IPC in the present case and precedents: Harijana Thirupala v. Public Prosecutor, High Court of A.P. Hyderabad, 2002(3) RCR(Criminal) 861, and Prem Dass and another v. State of H.P., 1995(2) SLJ 1522, qua general principles to be followed by the Courts applicable in administration of criminal justice.
9. Now, the prosecution has examined PW-3 who had been operating the impugned account from which allegedly two forged cheques had been got encashed after having got two cheque books issued by way of furnishing forged requisition slip; PW-2, the bank official, who had duty to receive the cheque and issue token to the person who presented the cheque; PW-8, Assistant Manager, who had duty to pass the cheque sent to her by the concerned clerk [PW-2]; PW-1, cashier, who had duty to give cash to the person bearing the token [issued by counter clerk] and PW-10 who was the Chief Manager of the bank at the relevant time. The prosecution has also examined the account holder of the impugned account as PW-7 who categorically deposed that she had authorised her husband to operate the said account.
10.PW-3 stated that on information given by the bank, he came to know that two cheques amounting to Rs.25,000/- and Rs.40,000/- had been encashed from his account. Subsequently, on the next day i.e. FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 8/25 27.07.1995, he went to the bank where another cheque of Rs.50,000/- was presented and subsequently, accused was apprehended. PW-2 too identified the accused as presenter of cheque no. 406530 of Rs. 50,000/- on 27.07.1995 Ex. PW-9/D and of previous two cheques bearing no. 426528 [406528] and 406529. Similarly, PW-8 identified the accused as the person who was called by the Chief Manager subsequent to the detection that the cheque for Rs.50,000/- had been received for encashment with the same signature of Shesh Nath for clearance [as of signatures put on previous two cheques encashed on 25.07.1995 and 26.07.1995]. Further, PW-1 stated that on the day when the cheque of Rs.50,000/- was presented for encashment, he was called by the Chief Manager to verify earlier payment of Rs.40,000/- and Rs.25,000/- made to the accused or not; he identified the accused to be the same person who had withdrawn those cheques. Further, PW-10 also deposed that accused was apprehended on the impugned day when he presented the cheque of Rs.50,000/- for encashment and during enquiry, they found that requisition slip for issuance of cheque books and two previous cheques of Rs.25,000/- and Rs.40,000/- were also forged. Thereafter, on information, police came at the bank and accused as well as relevant documents were handed over to the police.
11.In these circumstances, prosecution has examined relevant witnesses and presented its case that accused had got two cheque books issued through a forged requisition slip; thereafter, he got two cheques encashed after forging the same and when the accused was trying to get third forged cheque encashed, he was apprehended by the bank officials and further, the person operating the account denied having signed the requisition slip and issued the three cheques. The requisition FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 9/25 slip and three cheques bore the signatures of the accused at the back of these documents whereby the accused had been authorised by the drawer of requisition slip and three cheques to receive the cheque book and payment of amount of those cheques respectively. Further, the three impugned cheques bore another signatures of accused showing that he had presented the cheques for encashment. During investigation, specimen signature/handwriting of the accused and of authorised signatory of the impugned account were obtained and were sent to FSL for analysis. The FSL report Ex. PW-11/A states that PW-3 did not prepare and issue the requisition slip and three cheques. However, the signatures of Shesh Nath on those documents matched with that of accused.
12.Ld. Counsel for the accused raised doubt on the FSL report stating that the documents were sent to FSL on 16.08.1995; while the documents had been seized on 27.07.1995 itself and the memo for sending the documents had been prepared on 11.08.1995; futhermore, as per testimony of PW-6, the envelope containing the documents had not been sealed by the investigating officer while sending the same to the FSL. Now, the accused did not seek any clarification from the investigating officer (PW-9) in respect of above-mentioned aspects. Further, the accused did not ask any question from him (PW-9) as to why the documents were sent after twenty days of the seizure of the same. However, the Court takes notice of the fact that any investigating officer uses to investigate several cases at a time and it is not practically possible to send the documents to FSL for analysis within a day or two of seizure of the same coupled with the situation that he (IO) is to ascertain that which documents and whose FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 10/25 signatures/handwriting are to be sent and what queries are to be put to the FSL. So far as the argument that envelope containing documents were not sealed is concerned; the accused did not raise any suspicion during examination of prosecution witnesses that the specimen signatures/handwriting sent by the investigating officer to the FSL were not of the accused or any of the documents sent to FSL was tampered. In these circumstances, accused cannot claim any benefit at the stage of final arguments on the above-mentioned aspects.
13.FSL report Ex. PW-11/A was tendered by PW-11 who had deposed that the person [accused] who wrote red enclosed writings and signatures stamped and marked S1 to S12 also wrote the red enclosed signatures similarly stamped and marked Q9 to Q14, Q16 and Q17. During his (PW-11) cross-examination, accused could not create any doubt over his report. In this manner, accused could not bring anything on record to discard and disbelieve the testimony of PW-11 and his report.
14.Further, the accused was apprehended in the bank, the spot of alleged commission of offence. Above all, the accused, at the time of recording his statement after conclusion of prosecution evidence, admitted that he was present in the bank as one Kamlesh had taken him there. Hence, by the FSL report tendered by PW-11 and testimony of other prosecution witness, it is proved that accused had presented the requisition slip for issuance of cheque books and three impugned cheques. Further, PW-11 stated that the person [PW-3] who wrote red enclosed writings and signatures stamped and marked S13 to S24 did not write the red enclosed writing and signatures similarly stamped and FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 11/25 marked Q1 to Q8 and Q18 to Q23. PW-3 was authorised signatory of the impugned account. Furthermore, during his cross-examination, PW-3 deposed that he identified the [impugned] cheques by his signature as well as series of the cheques which were issued to him. During his examination by Ld. APP, he stated that he informed the police that these cheques and requisition have not belonged to him. Considering the testimony of PW-3 and FSL report and not other evidence to belie his testimony and FSL report; it is proved beyond reasonable doubt that the requisition slip and three cheques were forged.
15.Ld. Defence Counsel argued that admittedly, the third cheque of Rs.
50,000/- had been presented at or around 10:30 am on 27.07.1995, then why rukka Ex. PW-9/A was sent at 2:40 pm for registration of FIR; but, the prosecution failed to explain the delay in registration of FIR. Again no question was put to the investigating officer on this aspect. PW-9, corroborated with the testimony of PW-4, categorically deposed that he received the information from the bank at about 2:00/2:15 pm; hence, it can be said that there was no delay on the part of the investigating officer for sending the rukka for registration of FIR. Complaint Ex. P1 had been given by PW-10 to the police; but no question was put to him too on this aspect as to at what time exactly, the complaint was given to the police by him. Moreover, there was a gap of only four hours between the presentation of the cheque and sending the rukka for registration of FIR and it is natural that any bank requires sometime to verify from its records as well as from the account holder/operator of the account as to whether infact any cheating/forgery has been committed in respect of that account.
FIR No. 170/95PS: Prasad Nagar State v. Shesh Nath 12/25 Furthermore, when cheating/forgery was not only related to that particular day i.e. 27.07.1995 rather the same was going on for last three days too. Hence, the bank must have spent sometime in above- mentioned verifications. In these circumstances, there was no unreasonable delay in registration of FIR.
16.Ld. Defence Counsel argued that when admittedly the incident of presenting the cheque of Rs.50,000/- occurred on 27.07.1995, then how PW-10 could have anticipated the incident and filed the complaint Ex. P1 on 26.07.1995 itself. It is true that the complaint Ex. P1 bears the date as 26.07.1995; however, from the text of the complaint, it can be safely made out that the complaint was given on 27.07.1995. Since in the complaint, it has been mentioned that accused had collected amount of Rs.25,000/- and Rs.40,000/- on 25.07.1995 and 26.07.1995 respectively and today, tendered a cheque of Rs.50,000/- at the counter; this shows that 26.07.1995 had already passed and the word today meant 27.07.1995 and in any case, not 26.07.1995. Moreover, no clarification was sought by the accused from PW-10 on this aspect. It appears that the date 26.07.1995 mentioned on the complaint Ex. P1 was a typographical/clerical mistake on the part of PW-10 and actually, the same was 27.07.1995.
17.Ld. Defence Counsel argued that it is very strange to note that nothing incriminating was recovered from the possession or at the instance of the accused when he had already got two cheque books issued and two cheques amounting to Rs.65,000/- encashed; further, PW-4 stated that cheque book of 2974 was recovered from the possession of the accused, then why the investigating officer did not attach the same FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 13/25 with the challan. Now, personal search memo Ex. PW-4/C reveals that Rs.12 and a key were recovered during the personal search of the accused and further, vide seizure memo Ex. PW-4/A, three cheques, the requisition slip and specimen signature card of account no. 2974 were seized by the investigating officer. The memos were witnessed by PW-10 and PW-4. Firstly, if the cash allegedly withdrawn by the accused on 25.07.1995 and 26.07.1995 was not recovered from the accused, then the same does not indicate that accused had not got those cheques encashed; specifically, in the circumstances, when those cheques bore the signatures of the accused on their back. Further, PW-4 has deposed that one cheque book of 2974 had also been seized; but he did not depose about the seizure of the requisition slip. It appears that by word seizure of cheque book of 2974, he meant that requisition slip of cheque book was recovered. Above all, it is not the case of the accused that the cheque book had been recovered from him, since he himself put the suggestion to PW-2 that no cash amount or cheque book was recovered from the possession of the accused. Similarly, PW-8 also deposed that the cheque book and cash amount was not recovered in her presence. Further, no question was asked and no suggestion was put to the investigating officer on this aspect.
18.Ld. Defence Counsel stated that no token was recovered from the accused which had been given to the accused by PW-2 at the time of presentation of cheque of Rs.50,000/-. But, PW-2 categorically deposed that the accused had presented the cheques of Rs.25,000/- and Rs.40,000/- on 25.07.1995 and 26.07.1995 and on 27.07.1995 too the accused had presented the cheque of Rs.50,000/- and he handed over the said cheque to PW-8 for clearance and token to accused. But, the FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 14/25 accused did not challenge his (PW-2) such deposition during his cross- examination. In these circumstances, if the token was not recovered from the possession of accused, the same does not create any doubt on the case of the prosecution.
19.Ld. Defence Counsel argued that PW-1 (cashier) did not identify the accused. Firstly, it is not required in a criminal case that the accused should have been identified necessarily by every prosecution witness. Moreover, PW-1 had deposed that he had identified the accused to be the same who had earlier withdrawn the two cheques of Rs.25,000/- and Rs.40,000/- when the accused was present before the Chief Manager. Furthermore, it is not disputed fact that accused was apprehended by the bank official on 27.07.1995 and he was produced before the Chief Manager thereafter. Moreover, it is not the case of the accused, during prosecution evidence, that someone else had presented the cheque on 27.07.1995 and had been apprehended by the bank official and later on, the said person was let off and accused was implicated in the present case. Hence, testimony of PW-1 regarding his inability to identify the accused in the Court does not provide any benefit of doubt to the accused.
20.Ld. Defence Counsel argued that PW-1 did not depose that cheques were forged. Now, PW-1 being a cashier was not supposed to verify whether the cheque was in order or not; hence, his version that he did not state to the police that the cheque dated 27.07.1995 was forged is not material.
21.Ld. Defence Counsel argued that how the previous cheques of Rs.
FIR No. 170/95PS: Prasad Nagar State v. Shesh Nath 15/25 25,000/- and Rs.40,000/- were encashed when the same did not bear the signatures of the authorised signatory/account holder; moreover, PW-8 had admitted that she had encashed those cheques after checking the signature of the bearer with the specimen signature already available in the bank. Now, the perusal of testimony of PW-8 reveals that she admitted that signatures of the authorised signatory [on the previous two cheques] and specimen signatures of the same person already kept in the bank were appearing the same and that was why the said cheques were passed. Now, the two cheques Ex. PW-1/B and Ex. PW-1/C dated 25.07.1995 and 26.07.1995 respectively bore the stamp of M/s Rohit International too. It might have been the possibility that PW-8 was not able to detect the difference between the specimen signatures of authorised signatory available in the bank and the signatures put on those cheques or she might have performed her duty of matching the signatures in casual manner and further, difference between the admitted signatures of the authorised signatory and the signatures put on the cheques could have been detected by the handwriting expert only, which was done by the FSL vide its report Ex. PW-11/A. Moreover, in present facts and circumstances, negligent performance, if any, of duty or error of judgment committed by PW-8 cannot absolve the accused from the allegations made against him. Above all, at this stage, it is pertinent to note that it is not the case of the accused that impugned requisition slip and cheques had been given by PW-3 or any other person related to him (PW-3) to the accused.
22.Ld. Defence Counsel argued that original requisition slip was not seized by the investigating officer. Now, PW-3 had categorically deposed that original requisition slip was with him. He further deposed FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 16/25 that the slip of requisition [which was presented by the accused] was also shown to him by the bank; but the same was also got received by Sheshnath. Further, PW-8 deposed that it could not be ascertained whether requisition slip Ex. PW-9/E was the part of cheque book issued earlier to the owner of Rohit International as there was no system to mark the requisition slip to ascertain the same fact. Further, the FSL report precisely mandates that requisition slip does not bear the signature of PW-3; but it bears the signature of accused at its back. In these circumstances, even if, the investigating officer did not seize the original requisition slip which must have been available with PW-3; the same does not give any benefit of doubt to the accused since it is already proved beyond reasonable doubt that the requisition slip Ex. PW-9/E presented for issuance of the cheque books was forged.
23.Ld. Defence Counsel argued that the investigating officer did not conduct any investigation qua involvement of bank employees. Further, no complaint was received from the account holder and investigating officer did not take any sincere efforts to apprehend one Kamlesh whose name was allegedly disclosed by the accused in his disclosure statement Ex. PW-4/B. Firstly, in the present case, it is not the case of the accused during examination of prosecution witnesses that there was involvement of bank employees in forgery of requisition slip and impugned cheques. Further, PW-3 had stated that he had given written complaint to the Chief Manager of Syndicate Bank. It is true that the said complaint was not annexed with the challan. But when the Chief Manager PW-10 himself had given complaint Ex. P1 to the police and the same contained all the relevant facts of the case and PW-3 had been examined and cross-examined in detail; then the FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 17/25 absence of complaint specifically given by account holder/authorised signatory does not make any difference. Moreover, the complaint given by PW-3 might have been kept by the bank for its internal purposes. Moreover, accused did not put any question to PW-10 on this aspect when PW-3 had already deposed that he gave written complaint to the Chief Manager of Syndicate Bank. Further, PW-9 (the investigating officer) deposed that he took the accused to the place pointed out by him where Kamlesh used to meet him as per his disclosure statement. In this manner, it cannot be said that the investigating officer did not take steps to apprehend co-accused Kamlesh.
24.Ld. Defence Counsel argued that infact the son of PW-3 namely Rohit used to withdraw the amount from the impugned account in the absence of his father and when his such conduct was caught by the bank officials and intimated to PW-3, then the accused was got falsely implicated in the present case. Firstly, this was not the case of the accused at the time of recording of his statement after conclusion of prosecution evidence. Moreover, no such case was presented to PW-3 during his cross-examination. Totally new argument has been forwarded by Ld. Defence Counsel at this stage rather the accused had stated in his statement that he was got implicated by one Kamlesh in the present case. Furthermore, the case of prosecution is that when Rohit (son of PW-3) presented a cheque for encashment to the dealing clerk (as per testimony of PW-3 and PW-8), the bank official informed about withdrawal of Rs.25,000/- and Rs.40,000/- on 25.07.1995 and 26.07.1995. In these circumstances, when PW-3 had received the information of withdrawal of amount through two forged cheques and FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 18/25 Rohit (his son) was aware of the same too; had he (Rohit) been involved in encashment of previous two cheques dated 25.07.1995 and 26.07.1995, why he would have taken further risk of getting third cheque of Rs.50,000/- encashed and being exposed. Hence, false implication of the accused in the present case at the behest of son of PW-3 namely Rohit cannot be inferred at all in the light of above- mentioned observations. So far as the argument that why the complaint was not given by PW-3 on 26.07.1995 itself in respect of the withdrawal of Rs.65,000/- through two cheques by fraudulent manner when the wrongful transactions had already come into his knowledge, is concerned; PW-8 categorically deposed that she did not make any complaint to the police on 26.07.1995 as the facts of authorisation of withdrawal of money of Rs.40,000/- was not confirmed by the owner of Rohit International on 26.07.1995 as he was out of station. Similarly, PW-3 also deposed that [on 26.07.1995], the Chief Manager advised him to come in the bank on the next day and lodge his complaint with the bank authority. Hence, PW-3 being out of station and advised by Chief Manager to come on the next day was sufficient explanation to the question as to why complaint was not given on 26.07.1995 itself.
25.From the above-mentioned discussion, it is proved beyond reasonable doubt that accused had got two cheque books issued and thereafter, withdrawn two cheques amounting to Rs.25,000/- and Rs.40,000/- from the impugned account without having authorisation of PW-3 (authorised signatory) and PW-7 (account holder) by presenting forged requisition slip and two forged cheques and thereby, cheated the bank and he (accused) further presented another forged cheque of Rs.
FIR No. 170/95PS: Prasad Nagar State v. Shesh Nath 19/25 50,000/- on 27.07.1995 in the same manner and was apprehended during process of its encashment and thereby, he attempted to cheat the bank on that day. Hence, the accused is held liable for the offence punishable under Section 420 of IPC.
26.Now, it is required to ascertain whether the accused forged the requisition slip and three impugned cheques. Section 464 of IPC has defined 'Making of a false document' as:
A person is said to make a false document -
First. - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly. - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly. - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration.
27. Now, it is worth noting that the stamp of Rohit International which was used on requisition slip and impugned cheques was not recovered. Further, there is no evidence to the effect that signatures of the FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 20/25 authorised signatory or handwriting on the requisition slip and cheques were put by the accused himself. Hence, although it has already been proved that the requisition slip and three cheques were false documents within the definition of Section 464 of the IPC, yet there is no evidence to the effect that the accused had prepared those false documents. Further, the three impugned cheques bore the signature of accused at their back underneath the words 'Sig of Sesh Nath attested'. This leads to infer that accused was present at the time of forgery of those documents and thereby, he was party to the forgery of those cheques; but still, considering the observations made in earlier part of this paragraph, this inference is a weak piece of evidence. At this stage, the observation of the Hon'ble Kerala High Court in Motty Philipose v. State of Kerala, 2006 Cri. L. J. 2271, finds relevance:
18. [N]o expert evidence with regard to the handwriting is also forthcoming. Of course, accused 1 and 2, being the beneficiaries of the forgery, either of them or both would have abetted the forgery. But, there is no direct evidence in this case. We cannot pinpoint whether it was either the first accused or the second accused; or both in the absence of direct cogent evidence. In such circumstances, giving the benefit of doubt, we may not be able to confirm the conviction against them as regards the act of forgery alleged under Sections 465, 466 or 468 IPC.
28.Applying the above mentioned legal position in the present facts and circumstances, the prosecution has failed to prove the allegation against the accused, beyond reasonable doubt, under Section 468 of IPC.
29. Now, whether accused knew or had reason to believe the requisition slip and three cheques to be forged documents and used those as FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 21/25 genuine or in other words, whether the accused is liable for commission of offence punishable under Section 471 of IPC. The legal position qua offence under Section 471 of IPC has been explained by the Apex Court in A.S. Krishnan v. State of Kerala, AIR 2004 SC 3229, as:
8. The essential ingredients of Section 471 are (i) fraudulent or dishonest use of document as genuine (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one. Section 471 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must be necessity be convicted, before the person using the forged document knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one.
The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. The expression `fraudulently and dishonestly' are defined in Sections 25 and 24 IPC respectively. For an offence under Section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by Section 471 must be voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the document to be a forged one. Whether the accused knew or had reason to believe the document in question to be a forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual. [Emphasis supplied]
30. Hence, even if the prosecution was not able to prove beyond FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 22/25 reasonable doubt that as to who had forged the requisition slip and three cheques; but as it has been proved that requisition slip and three cheques were forged, the accused can be held liable, if otherwise proved, under Section 471, for using the forged requisition slip and three cheques as genuine. But the prosecution is to prove whether the accused had knowledge or reason to believe that the requisition slip and three cheques were forged documents. The Apex Court in Joti Parshad v. State of Haryana, AIR 1993 SC 1167, has explained the meaning of 'knowledge' and 'reason to believe' as follows:
5. Under the Indian Penal law, guilt in respect of almost all the offences is fastened either on the ground of "intention"
or "knowledge" or "reason to believe". We are now concerned with the expressions "knowledge" and "reason to believe". "Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is another facet of the state of mind. "Reason to believe" is not the same thing as "suspicion" or "doubt" and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. Likewise "knowledge" will be slightly on higher plane than "reason to believe". A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Section 26, I.P.C. explains the meaning of the words "reason to believe" thus:
"26. "Reason to believe" - A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise."
In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 23/25 inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe" have to be deduced from various circumstances in the case.
31.In the present case, firstly, the accused did not put his defence that his intention was not dishonest to any of the prosecution witnesses either in the form of question or in the form of suggestion. During prosecution evidence, he has nowhere claimed innocence in production of the requisition slip or cheques. In the disclosure statement Ex. PW-4/B of accused, clue could be traced about the knowledge or reason to believe on behalf of the accused; moreover, the same matches with the statement of accused recorded after conclusion of prosecution evidence on some material particulars. The accused had admitted his presence in the bank. He has authenticated his disclosure statement recorded by the investigating officer to the effect that one Kamlesh was also involved in the present case. The accused did not produce any oral or documentary evidence to rebut the version of prosecution or to prove that he had not presented the requisition slip and three cheques to the bank. It is not the case of the accused that Kamlesh infact had asked him on previous dates (except 27.07.1995 about which he claimed during his statement) to get the cheque books issued and encashed the cheques of Rs.25,000/- and Rs.40,000/-.
32.Even if, the disclosure statement of accused and other material which are taken in consideration in preceding paragraph are left aside. The accused was not employee/official of M/s Rohit International and had not been authorised by its account holder or authorised signatory to present the impugned documents to the bank and it is not case of the accused that he had been asked by someone related to M/s Rohit FIR No. 170/95 PS: Prasad Nagar State v. Shesh Nath 24/25 International to do the impugned acts. The above mentioned observation gets strengthened by the fact that the accused himself put the suggestion to PW-3 (authorised signatory) that he (PW-3) was not knowing him (accused) prior to the present incident. Further, he had done the above-mentioned acts on consecutive days i.e. on 24.07.1995, 25.07.1995, 26.07.1995 and 27.07.1995.
33.In these circumstances, inference can be safely drawn that accused had reason to believe that the requisition slip and three cheques were forged. It has already been proved that he had used those documents as genuine. In present circumstances, the Court, with utmost respect, is of the view that the precedent qua Section 471 of IPC relied upon by Ld. Defence Counsel are not applicable in the present case. However, the Court has already taken into consideration the general principles applicable in administration of criminal justice system. Hence, the accused is held liable for the offence punishable under Section 471 of IPC.
34. In view of above discussion, accused is held guilty for the offence punishable under Section 420 and 471 of the Indian Penal Code.
Announced in open Court Naveen Gupta
(1+ 1 Copies) MM/Delhi/12.12.2012
FIR No. 170/95
PS: Prasad Nagar
State v. Shesh Nath 25/25