Delhi District Court
Government Of India vs The State on 7 May, 2013
IN THE COURT OF SH. DAYA PRAKASH, ASJ-02/FTC, NEW
DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0095142011
Criminal Appeal No. 61/2012
Government of India
Secretariat
Co-operative Thrifts And Credit Society Ltd.
Through
Sarat Kumar, Authorized Representative
.......Appellant
versus
1. The State
2. I.J. Mahajan
S/o Sh. Ram Saran
R/o House No.769, Sector-I,
R.K. Puram, New Delhi
.........Respondent
Date of institution of this case : 13.12.2011
Date when the case fixed for judgment : 25.03.2013
Date of announcement of judgment : 07.05.2013
JUDGMENT
07.05.2013 By this judgment I shall dispose of the appeal filed by the Criminal Appeal No. 61/12 1/9 appellant/complainant society against the impugned judgment dated 25.05.2011, passed by the Ld. ACMM in case FIR No.154/1998 under Section 420/468/471/409 IPC, P.S. Mandir Marg whereby the Ld. ACMM acquitted the respondent no.2/accused I.J. Mahajan of all the charges made against him.
Brief facts which are relevant for the disposal of the present appeal are that on 19.01.1998, appellant/complainant had made a complaint against the respondent no.2/accused who was the Secretary of the appellant on the ground that respondent no.2/accused I.J. Mahajan was elected as departmental representative in between 1994 to 1997 of the appellant/ complainant and were entrusted to do certain functions as mentioned in the complaint and by laws of the society and during that period being the departmental representative, he forged the signatures of the members of the society and by forging their signatures on the application form for loan and C.D. (W), he fraudulently and dishonestly withdrew money of Rs.3 lacs from their account by using the forged signatures as genuine which he knew to be forged. It has been further stated that respondent no.2/accused had made forged entries in the ledger book of the society and pass book of the members and dishonestly converted their amount into his own use and thus, caused wrongful loss to the society and its members and wrongful gain to himself and thereby committed offences punishable under Section Criminal Appeal No. 61/12 2/9 420/468/471/477-A IPC. On the basis of said complaint, FIR No.154/1998 under Section 420/468/471/409 IPC was registered against the respondent no.2/accused in the police station Mandir Marg. Thereafter, the police filed a charge sheet before the Ld. ACMM and on conclusion of the trial the Ld. ACMM vide impugned judgment dated 25.05.2011 acquitted the respondent no.2/accused of all the charges made against him. Aggrieved by impugned judgment dated 25.05.2011, the appellant/complainant has preferred the present appeal on the grounds that Ld. Trial Court had passed the impugned judgment without adverting the facts on record and incriminating evidence against the respondent no.2/accused. It is further stated that the Ld. Trial Court has failed to appreciate the evidence led by the PW1 Sh.G.S. Pathania who had given all the documents which was in the possession of the complainant during the course of investigation. It is further stated that Ld. Trial Court has failed to appreciate that lacuna left in the investigation by the IO and failure to examine the IO Gurmeet Singh and SI Bhoop Singh, are fatal for the case of the complainant/accused. It is further stated that Ld. Trial Court has failed to appreciate that non- examination of admitted signature of the accused is failure of the IO and for same, the complainant ought not to have suffered. It is further stated that Ld. Trial Court had closed the prosecution evidence without giving ample opportunity to examine its witnesses. It is further stated that Ld. Trial Court has erred in holding the non-existence of affidavit dated Criminal Appeal No. 61/12 3/9 28.04.1997 by the respondent no.2/accused regarding his admission of committing fraud an intention to refund the said amount and also letter in writing on 11.03.1997 confessing his guilt on the judicial file. It is further stated that Ld. Trial Court has not taken into consideration the allegation made by various PWs who were victim of the fraud and forgery committed by the respondent no.2/accused. In view of these grounds, it is prayed by the appellant/complainant that impugned judgment dated 25.05.2011 be set aside.
Arguments on appeal already heard.
During the course of arguments, it is stated by Ld. Counsel for the appellant that the appellant had assisted and supplied all the relevant documents to the IO in support of its complaint but the State had conducted the case in a most casual manner before the Ld. Trial Court and Ld. Trial too had simply recorded the statement of the witnesses and evidences without involving itself with proceedings being duly empowered by provisions of Cr.P.C. and even the competent witness i.e. IO was in unusual manner not examined by the prosecution. It is further argued that Ld. Trial Court had taken the ground while passing the impugned judgment that IO failed to gather specimen signature of the respondent no.2 so as to compare with forged signature while the Ld. Trial Court had very much power to direct the respondent no.2 to give his specimen Criminal Appeal No. 61/12 4/9 signature and to direct the appropriate authority to examine the same. It is further stated that Ld. Trial Court ought to have exercised its power as vested under Section 311 Cr.P.C. Ld. Counsel for the appellant cited Allarakho K. Mansuri vs State of Gujrat AIR 2002 Supreme Court 1051 and stated that in an appeal file against the acquittal of accused the paramount consideration of Court would be to avoid miscarriage of justice. Ld. Counsel for the appellant also cited Dhanaj Singh alias Shera and ors. vs. State of Punjab, AIR 2004 SC 1920 and stated that accused cannot be acquitted solely on account of defective investigation and to do so would tantamount to playing into hands of IO if investigation is designedly defectively. Ld. Counsel for the appellant further cited Chhotu & Ors. vs. State of Maharashtra, 1997 Cri. L.J. 4394 and Karnail Sigh & Ors. vs. State of Punjab, 1995 Cri. L.J. 3625.
On the other hand, Ld. Counsel for the respondent no.2/ accused argued that in the statement under Section 313 Cr.P.C, respondent no.2/accused had denied the material incriminating circumstances appeared in the prosecution evidence on record and he had been falsely implicated by the complainant/appellant in the present case. It is further stated that there was no legal evidence against the respondent no.2/accused and he was a victim of the ruthless power enjoyed by Mr. G.S. Pathania. It is further stated that the appeal has been filed by the appellant about 3 Criminal Appeal No. 61/12 5/9 months after the filing of the application dated 19.09.2011 under Section 452 Cr.P.C. on behalf of accused/ respondent no.2 for issuance of directions to the complainant/appellant to refund the amount of Rs.3,85,000/- with interest to him, following his acquittal in the present case which was deposited by the accused/respondent with complainant as per order of the Hon'ble Session Court at the time of granting of anticipatory bail and afterwards. It is further stated that affidavit dated 28.04.1997 and letter dated 11.03.1997 allegedly submitted by the accused/respondent to the complainant and same were relied upon by the prosecution during the trial of the case, had not been produced before the Ld. Trial Court and only photocopies were produced and these documents cannot be taken as primary evidence as per the provisions of Section 62 of the Indian Evidence Act. It is further stated that during trial, no scientific evidence was produced on record to prove that accused/ respondent had forged the signatures of the members of the society on their loan application forms, receipts, ledger books etc. It is further stated that prosecution had failed to examine the material witnesses including the IO and SI in order to suppress the truth that respondent/accused had been falsely implicated by the complainant Sh.G.S. Pathania in the present case due to his personal grudge against the accused/respondent no.2. It is further stated that there is variation in the amount allegedly withdrawn fraudulently and dishonestly by the accused/respondent no.2. It is further Criminal Appeal No. 61/12 6/9 stated that PW2 in his cross examination had stated that the complainant society has not filed any ledger in the Court nor given to the police authority. The ledgers were not shown to the Registrar of the Co-operative Societies also. It is further stated by Ld. Counsel for the respondent no.2/ accused that no specimen signatures/handwriting of the accused/ respondent no.2 were taken for the purpose of comparison of he same by the FSL in order to prove the allegations of forgery and withdrawal of amount fraudulently and dishonestly by the accused/respondent. It is further stated that there was no audit of Society's accounts during the period from 1994 to 1997 or even afterwards as no audit report was produced in the Ld. Trial Court in order to substantiate the allegations against accused/respondent no.2. It is further argued that no correspondence made between complainant/Sh. G.S. Pathania with the Registrar, Co-operative Societies who has reportedly advised the society to lodge a complaint against the accused/respondent no.2 has been produced in the Court. Ld. Counsel for the respondent no.2/accused has cited State vs. Parkha Ram Suri & Ors. 2011(3) JCC 2094; Pratap vs. State AIR 1976 SC 966, Ritesh Chakravarty vs. State of Madhya Pradesh in Criminal Appeal No.1016/06 dated 29.09.2006; Surender Kumar & Anr. vs The State (NCT of Delhi) 2007 (2) JCC 1003; State (G.N.C.T of Delhi ) vs Saquib Rehman Massood & Ors. 2012 (3) JCC 2127; R. Venkateshwaralu vs State 2012 (4) JCC 2758 and Babu vs State of Criminal Appeal No. 61/12 7/9 Kerala 2010 (4) JCC 2657.
I have seen the TCR, ground of appeal, arguments advanced and judgments cited by the Ld. Counsels for the parties and my inference is that appeal filed by the appellant/complainant be dismissed on the following grounds:-
Firstly, it is a fact that despite quoting IO and other police officials as witnesses, they were not examined by the prosecution. This non-examination of IO and other police officials was held to be fatal and is fatal.
Secondly, it is further a fact that most of persons whose signatures and names were alleged to be forged and fabricated by the respondent no.2/accused were neither examined nor their signatures were taken by the IO for scientific examination. If there is allegation that signature of a person is forged and fabricated then there should be deposition by that person stating that his signature was forged and fabricated corroborating by the scientific evidence showing that signature has not been done by him. This procedure has not been done and is also fatal to the prosecution in the present case.
Criminal Appeal No. 61/12 8/9
Thirdly, it is further a fact during prosecution evidence, appellant/complainant society had not filed any ledger in the Court nor appears to be given to the police. It is further a fact that ledger was also not given to the Registrar of Societies. In case of taking out of amount from the Society Account on behalf of members, report of the Auditor is must for the amount so scuffled out from the Account without member being asked for withdrawal. However, no such audit report has been placed on record during trial.
In view of above, I find no infirmity in the impugned judgment dated 25.05.2011 passed by the Ld. ACMM as the said judgment is well reasoned one. Accordingly, the present appeal filed by appellant/ complainant society is dismissed.
TCR be sent back to the Ld. Trial Court alongwith copy of this judgment.
Appeal file be consigned to record room.
Announced in the open court (Daya Prakash)
on 7th May, 2013 ASJ-02/FTC, PHC/ND
07.05.2013
Criminal Appeal No. 61/12 9/9