Delhi District Court
State vs . Rajiv Gupta on 29 March, 2007
IN THE COURT OF SH. VIKAS DHULL, M. M., NEW DELHI
STATE Vs. RAJIV GUPTA
JUDGEMENT
(a) The FIR no. of the case : 625/94
(b) The date of commission of offence : 04/10/94
(c) The name of complainant : Sh. Bijender Singh, Director
A-21B, Okhla Ind. Area,
Phase-I, New Delhi-110020
(d) The name, parentage, : Rajiv Gupta S/o Sh. R L Gupta
residence of accused R/o G-300, Preet Vihar, Delhi
Ms. Alka Gupta
W/o Sh. Rajiv Gupta
R/o G-300, Preet Vihar, Delhi
(e) The offence complained of/ proved : U/s 420/471 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 29/03/07
(i) Brief statement of the reasons for the decision :
1. The prosecution story in brief is that on or before 04/10/94 at Bank of Maharashtra within the jurisdiction of PS Cannaught Place the accused presented a cheque no. 396086 of Rs. 6.0 Lacs for encashment in his bank account no. 2599 of company M/s Alka Fabric Private Ltd. where he was the Director and the cheque had been received from the complainant company and the accused had informed the complainant that he had destroyed the cheque and had already received the cheque amount through pay-order from the complainant company and the accused dishonestly and knowingly deposited the cheque again in his account mentioned above and wrongfully gained the amount of Rs. 6.0 Lacs and put the complainant company to wrongful loss of Rs. 6.0 Lacs and the accused fradulently or dishonestly used the genuine a forged document namely cheque having the reason to believe the same to be a forged documents at the time of its :: 2 ::
use and thereby committed an offence U/s 420/467/468/471/34 IPC for which FIR no. 625/94 was registered at PS Cannaught Place.
2. The matter was investigated by the police and the charge sheet U/s 420/467/468/471/34 IPC was filed against the accused.
3. From the material on record a charge U/s 420/471 IPC was made out against the accused Rajiv Gupta to which the accused pleaded not guilty and claimed trial. Accused Alka Gupta was discharged vide orders dated 27/05/02.
4. To support its case the prosecution has examined 06 witnesses.
5. PW1 Bijender Singh has deposed on oath that he is Director of Wadcot Pvt. Ltd. PW1 further deposed that during the course of business he had issued a cheque of Rs. 6.0 Lacs and the same was dishonoured and a demand draft was issued to the accused. PW1 further deposed in October, 1994 he observed that the cheque has also been cleared from their account. PW1 has proved on record his complaint Ex.PW1/A. PW1 further deposed that the accused had opened an account in the same branch with possible collusion of the bank staff and as soon as funds were available cheque was presented and cleared. PW1 has also proved on record the cheque Ex.PW1/B.
6. In his cross-examination by PW1 deposed that he know the accused since 1989-90 as he was supplying fabric to their company. PW1 further deposed that they used to place specific order to the firm of accused. PW1 further deposed that they had a running account. PW1 further deposed that he does not remember as to where his signatures were obtained by the police. PW1 admitted that in mark D1 and D2 does not bear any signatures or endorsement of any person. PW1 further deposed that he cannot recollect as to whether there was any transaction with Alka Fabrics after payment of Rs. 6.0 Lacs by way of pay order. PW1 further deposed that he had enquired the documents from Mr. Basudeo Tiwari. PW1 further deposed that nothing in writing was reduced as full and final settlement. PW1 further deposed that as :: 3 ::
on date Rs. 52465/- is payable by his company to the accused's company. PW1 denied that they have created a fabricated statement of account to justify their complaint. PW1 admitted that they used to tell the accused party to represent the cheque. PW1 further deposed that he does not know as to how many time he had issued the pay orders against the bounced cheque. PW1 denied that the pay order mark A was not issued by him in lieu of dishonoured cheque Ex.PW1/B. PW1 also denied that he had revalidated the cheque Ex.PW1/B and he told the accused to represent the cheque against his dues. PW1 denied that he is aware regarding the charges debited by the bank for dishonourment of cheque. PW1 denied that cheque Ex.PW1/B bears his sign. at Q1 and Q2. PW1 denied that writing in the encircled A is in his handwriting. PW1 admitted that the cheque in question has been signed twice by him as he has signed first in red ink and thereafter, he signed in black ink. PW1 denied that he had signed the cheque by red ink after the said cheque was handed over to the accused and after expiry of the date he got it back and he signed on Q1 and Q2 and at point B in black ink. PW1 denied that he had made a false complaint against the accused in order to avoid payment to the accused's company. PW1 further deposed that the cheque Ex.PW1/B was signed by him in the presence of accused. PW1 further deposed that he does not remember as to when it was presented for the first time. PW1 denied that Guru Dutt Sharma was acting as a Commission Agent. PW1 denied that Guru Dutt Sharma used to take the cheques from him and used to deliver the same to the accused. PW1 further denied that the cheque Ex.PW1/B was produced before him by Guru Dutt and the same was revalidated by him and was handed over to Guru Dutt. PW1 denied that he had revalidated the cheque and signed at point Q1 and Q2 at point A in presence of Guru Dutt. PW1 denied that he is deposing falsely.
7. PW2 S I Daya Nand has only proved on record the FIR Ex.PW2/A and endorsement on rukka Ex.PW2/B.
8. In his cross-examination PW2 denied that the FIR is ante-time or that he is deposing falsely.
:: 4 ::
9. PW3 Sh. Dharampal has proved on record the seizure memo Ex.PW3/A and Ex.PW3/B.
10.In his cross-examination PW3 denied that he was not General Manager in Wadcot Pvt. Ltd. PW3 further denied that he is deposing falsely at the instance of owner Sh. Bijender Singh of Wadcot.
11.PW4 Sh. R Muralidharan (Wrongly mentioned as PW3) has proved on record the cheque Ex.PW3/A bears the signature of accused Rajeev Gupta.
12.In his cross-examination PW4 denied that he had not participated in the investigation. PW4 further denied that he is deposing falsely.
13.PW4 Sh. R K Khurana has proved on record the account opening form of M/s Wadcot Pvt. Ltd. Ex.PW4/A and Ex.PW4/B and account opening form of Alka Fabrics Ex.PW4/C.
14.In his cross-examination PW4 deposed that he cannot tell as to how many times Ex.PW1/B was presented for encashment in the bank. PW4 admitted that Ex.PW1/B was presented through their bank. PW4 admitted that whenever a cheque is dishonoured in such situation an intimation to both drawer and drawee is sent. PW4 denied that he had never handed over the documents to the police. PW4 denied that the documents given which are on record are fabricated one.
15.PW5 Sh. V K Khanna, Principal Scientific officer, CFSL, CBI has proved on record his report dated 30/12/94 Ex.PW5/C.
16.In his cross-examination PW5 denied that he had given a false report.
17.PW6 Sh. Gurudutt Sharma has deposed that he had introduced Rajiv Gupta and Alka Gupta in Bank of Maharashtra for opening of account.
18.In his cross-examination PW6 deposed that he cannot tell the date and place when and where the police persons met him. PW6 further :: 5 ::
deposed that he came to know about the dispute between the complainant and accused only when he had gone to the police station. PW6 denied that he had signed the documents at the instance of IO and nothing was done written by the accused in his presence. PW6 denied that he is deposing falsely.
19.PW7 Sh. V G Sardesai, Retd. D.G.M. Bank of Maharashtra has deposed on oath that on 21/10/94 Sh. R K Khurana Dy. Chief Manager entrusted a cheque no. 390686 Ex.PW1/B. PW7 has proved on record his statement Ex.PW7/A.
20.In his cross-examination PW7 deposed that he was competent to hand over the documents. PW7 denied that no document was delivered in his presence. PW7 further denied that he is deposing falsely
21.No other witness was examined by prosecution and the prosecution evidence was closed.
22.The accused was examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record was put to the accused.
23.The accused submitted that there was business dealing with the complainant. Complainant himself gave cheque Ex.PW1/B after re- validation and signing the same and it was presented with the consent of the complainant as there was Rs. 1314612/- was due prior to re- validation of the said cheque. He further submitted that the demand draft was given by the complainant in the month of December, 1993 and at the relevant time there was due of Rs. 3504279.36 towards the complainant. He further submitted that he is an innocent person and complainant has falsely implicated him in this case as he did not want to give his dues of Rs. 832953/- which is due towards the complainant till today. Accused submitted that he shall lead defence evidence.
24.In his defence, accused has examined only one witness namely Sh. Rishi Pal as DW1.
:: 6 ::
25.DW1 Sh. Rishi Pal Bansal has deposed that he is a Chartered Accountant by profession. DW1 has also proved on record certificate Ex.DW1/A and statement of account of the party Ex.DW1/B.
26.In his cross-examination DW1 deposed that he had audited the balance sheet on the account statements which was prepared from the books of account maintained by the parties on the basis of bills and receipts. DW1 admitted that he has come to the court on asking of accused. DW1 denied that he is deposing falsely in order save his client.
27.No other DW was examined the after that the matter was posed for Final Arguments.
28.I have heard the Ld. APP, counsel Sh. Sunil Batra for complainant and the counsel Sh. Ajay Digpaul for accused and have perused the material on record.
29.In the present case the prosecution has to prove that complainant was cheated to the amount of Rs. 6.0 Lacs by getting the cheque Ex.PW1/B of Rs. 6.0 Lacs fraudulently encashed to prove the offence U/s 420 IPC and secondly the prosecution also required to prove beyond reasonable that cheque no. 396086 Ex.PW1/B was forged and accused used the same knowing it to be forged as genuine to prove the offence U/s 471 IPC.
30.I shall first decide the point whether the cheque no. 396086 Ex.PW1/B is a forged document or not. In order to prove that the instrument Ex.PW1/B is a forged document, the prosecution has examined the complainant PW1 Sh. Vijender Singh and he has deposed on oath that signature on the amended dated in the cheque Ex.PW1/B does not belongs to him. The deposition made by PW1 is supported by handwriting expert PW5 Sh. V K Khanna. He has also proved on record his report Ex.PW5/C. In the report Ex.PW5/C the handwriting expert has given an opinion that specimen signatures of the complainant S1 and S2 and admitted signatures at point A1 on letter dated 16/8/85 :: 7 ::
Ex.PW5/A, at point A2 and A3 in the account opening form Ex.PW4/A and at point A4 and A5 in the letter of partnership dated 16/8/85 do not tally with the signatories at point Q1 and Q2 on cheque no. 396086 Ex.PW1/B.
31.The law relating to relevancy of handwriting expert opinion has been discussed and laid down by Hon.'ble Supreme Court in 'Alamgir Vs. State (Delhi) AIR 2003 SCC 282' wherein it has been held that Court can accept or reject the expert's opinion after considering the other evidence led on record. Now let us see whether expert report Ex.PW5/C has to accepted/rejected in the light of evidence on record.
32.Although handwriting expert PW5 has given an opinion that signature at point Q1 and Q2 on cheque Ex.PW1/B do not belongs to the complainant but not much weightage can be given to the report of handwriting expert Ex.PW5/C as report has been given by PW5 handwriting expert based on admitted signatures of the complainant which pertained to year 1985 and same has been compared with signatures appearing at Q1 and Q2 on cheque Ex.PW1/B which pertains to year 1994. Therefore, it is quite probable that in natural course of things handwriting of a person may change over a gap of around 10 years. Another reason for not giving much weightage to the report of handwriting expert Ex.PW5/C is that in the present case the Investigating Officer had not sought any opinion from the handwriting expert as to whether the admitted signatures appearing of the complainant at point B on cheque Ex.PW1/B and impugned signatures at Q1 and Q2 on Ex.PW1/B are of the same person or not. It was incumbent upon the Investigating Officer to have sought comparison of the signatures appearing at point B with questioned signatures at Q1 and Q2 on cheque Ex.PW1/B the said signatures were of contemporary period and would have brought out the truth of the matter but the same was not done for the reasons best known to the Investigation Officer. Therefore, adverse inference has to drawn against the prosecution that in case the opinion was sought regarding Q1 and Q2 and admitted signatures at point B on Ex.PW1/B the same would not have been in favourable to the prosecution.
:: 8 ::
33.Another reason for not giving much weightage to the handwriting expert report Ex.PW5/C is the fact that cheque Ex.PW1/B was cleared by the bank officials of the complainant bank who were well conversant with the signatures of the complainant as they were receiving documents signed by the complainant during the course of business. PW4 Sh. R K Khurana who was working as Branch Manager in the Bank of Maharashtra has deposed in his cross-examination that all the four signatures apeparing on cheque Ex.PW1/B appears to be of the same person. PW4 has also deposed on oath that no complaint was made by the complainant regarding wrong encashment of the cheque to the bank. In the light of deposition made by PW4 that signatures appearing at all the four places i.e. Q1, Q2 and point B on Ex.PW1/B are of the same person there is material contradiction in the testimony of prosecution witness i.e. PW4 and PW5 and handwriting Expert report Ex.PW5/C cannot be accepted.
34.Another reason for doubting the handwriting Expert report Ex.PW5/C is that cheque Ex.PW1/B was presented twice in the account of the complainant company M/s Wadcot Pvt. Ltd. This fact has been admitted to by PW4 in his cross-examination. This fact stands further corroborated by the statement of account filed on record of account belonging to the accused company M/s Alka Fabrics Pvt. Ltd. Of account no. 2599 which was admitted to by the accused at the stage of final arguments on 15/03/07. In these statement of account it is shown that on 02/9/94 the cheque was deposited in the account no. 2599 of accused company and the same was dishonoured as debit entry was shown of Rs. 6.0 Lacs on the same date. Further, it is also shown that the said cheque of Rs. 6.0 Lacs was credited to the account of accused company on 04/10/94. Therefore, the cheque Ex.PW1/B was presented twice by the accused in his account firstly on 02/9/94 and when the same was dishonoured it was again presented and got encashed on 14/10/94. It has come in the evidence of PW4 that when a cheque is dishonoured the intimation is sent to the drawer and drawee of the cheque. Therefore, it can be safely said that at the time of dishonoument of cheque on 02/9/94 an intimation must have been sent to the complainant that cheque Ex.PW1/B has been dishonoured.
:: 9 ::
Now if the version of the complainant is believed to be true that cheque Ex.PW1/B was forged and no revalidation of cheque at Q1 and Q2 was done by him, then prosecution has not been able to explain as to why the complainant PW1 never issued further instructions to his bank after 02/9/94 to see that cheque Ex.PW1/B is not encashed. This also creates a doubt in the prosecution story regarding the alleged forgery, benefit of which has to go to the accused.
35.Further, I have myself compared the signatures at Q1 and Q2 with admitted signatures of complainant at point B of Cheuqe Ex.PW1/B U/s 73 of Indian Evidence Act, 1872 and after comparison it can be safely said that signatures appearing at all the four places belongs to one and the same person i.e. the complainant.
36.Therefore, in the light of above discussion and having regard to the admission made by PW4 that signatures appears to be of the same person i.e. of complainant on cheque Ex.PW1/B and having regard to the comparison made by this court U/s 73 of Indian Evidence Act, 1872 it can be safely concluded that signatures appearing at point Q1 and Q2 on cheque Ex. PW1/B are not forged and they belongs to the same person i.e. the complainant.
37.Since, I have come to the conclusion that cheque Ex.PW1/B is not a forged document, using of the same as genuine by the accused do not constitute any offence U/s 471 IPC. Accordingly, the accused is acquitted for the offence U/S 471 IPC.
38.Now, let us see whether the prosecution has been able to prove that complainant company M/s Wadcot Pvt. Ltd. was cheated of Rs. 6.0 Lacs by the alleged fraudulent encashment of cheque Ex.PW1/B by the accused despite having received the payment of Rs. 6.0 Lacs, through the demand draft. To support its case the prosecution has examined PW1, who is the Director of complainant company i.e. M/s Wadcot Pvt. Ltd. He has deposed on oath that he was having business dealings with M/s Alka Fabrics Pvt. Ltd. through its Directors i.e. Alka Gupta and Rajiv Gupta. He has further deposed that during the business he has issued a :: 10 ::
cheque Ex.PW1/B of Rs. 6.0 Lacs which was dishonoured and against the said cheque he had issued demand draft of Rs. 6.0 Lacs in full settlement of the dishonoured cheque. In the month of October, 1994 he came to know that cheque Ex.PW1/B has been encashed.
39.There is no dispute between the complainant and the accused that they were doing the business with each other regarding the supply of fabrics. It is also not in dispute that complainant company and accused company were maintaining running account regarding the business transactions there is also no dispute regarding the encashment of draft of Rs. 6.0 Lacs and cheque Ex.PW1/B of Rs. 6.0 Lacs by the accused.
40.The case of the prosecution is that payment of Rs. 6.0 Lacs was made through draft to settle the payment of dishonoured cheque Ex.PW1/B only. This version of the complainant is not believable as complainant was a running account regarding its business with M/s Alka Fabrics Pvt. Ltd. It is not believable that the complainant will arrive into a settlement for dishonoured cheque of Rs. 6.0 Lacs by issuing a draft. Settlement, if any, had to take place regarding the running account. The complainant has himself deposed that he was having a running account and they used to make payment at a gap of about 90 days. Therefore, payment of Rs. 6.0 Lacs through draft was made regarding the running account. As PW1 has himself admitted in his cross- examination that nothing in writing to show that a payment of Rs. 6.0 Lacs through draft was made against the cheque in question and not against the running account.
41.The onus was upon the prosecution to have prove that after taking a payment of Rs. 6.0 Lacs through demand draft by the accused no further payment was to be made by the complainant to the accused and cheque Ex.PW1/B was fraudulently encashed. PW1 has deposed in his cross-examination that his business transaction with the accused lasted till the alleged forgery of Ex.PW1/B was done. He has further deposed that he came to know about the same in the month of October, 1994 and it did not come to an end despite making payment :: 11 ::
of Rs. 6.0 Lacs through draft in December, 1993. Therefore, it can be safely said that business transaction lasted between the parties till October, 1994. Further PW1 was given an opportunity to produce the complete record pertaining to the transaction with the accused to show that no payment was due and payable by the accused when cheque Ex.PW1/B was encashed on 04/10/94. However, despite giving opportunity the statement of account maintained by the complainant company was never produced. Due to the non-production of statement of account by the complainant company an adverse inference has to be drawn against them that if the statement of account was produced then it would not have been favourable to them.
42.The defence of the accused was that even after encashment of cheque Ex.PW1/B on account of Rs. 323228.96 was due and payable by the complainant. To prove its defence the accused had produced the original ledger books from the year 1991 to 1994 with complete entries regarding the transactions with the complainant, the copy of same were exhibited as Ex.PW1/D1 to D4.
43.The original ledger books were not challanged by the prosecution to have not been maintained in the regular course of business. Therefore entries in the ledger books were deemed to have been admitted to by the prosecution. In Ex.PW1/D4 an amount of Rs. 323228.96 has been shown as balance on 04/10/96 after encashment of Rs. 6.0 Lacs through cheque Ex.PW1/B. In order to further prove that amount of Rs. 323228.96 was due and payable accused had examined his Chartered Accountant DW1 Sh. Rishipal Bansal who had also deposed on oath that an amount of Rs. 323228.96 was payable by the complainant company since 31/03/95. He has filed on record a certificate Ex.DW1/A. Nothing material has been brought out in his cross- examination.
44.Therefore, it can be safely said that accused has been able to prove on record in the light of statement of account Ex.PW1/D4 and testimony of DW1 that on 04/10/94 an amount of Rs. 323228.96 was due and :: 12 ::
payable by the complainant even after the encashment of cheque Ex.PW1/B. Further as discussed in preceding paras the cheque Ex.PW1/B is not a forged document. Therefore, by the encashment of cheque Ex.PW1/B by the complainant on 04/10/94 no wrongful loss has been caused to the complainant and no wrongful gain to the accused. Therefore, by the encashment of cheque Ex.PW1/B no cheating has been done with the complainant by the accused. Accordingly, accused is also acquitted for the offence U/s 420 IPC.
45.In the light of above discussion the accused is acquitted for the offence U/s 420 & 471 IPC. Bail bond and surety bond is cancelled. Surety stand discharged. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAY ON 29/03/07 (VIKAS DHULL) METROPOLITAN MAGISTRATE NEW DELHI