Delhi District Court
Lac And Would Deposit The Rest Amount ... vs State Of Uttar Pradesh on 21 July, 2012
IN THE COURT OF SH. NAVEEN GUPTA, MM,
TIS HAZARI COURTS, DELHI
1.FIR No. : 426/88
2.Date of Offence : 27.09.1988
3.Name of the complainant : S.C. Bahri
4.Name, parentage and Address :
of the accused 1. Sanjay Gaur,
S/o Sh. Ramesh Gaur,
R/o A-119, WZ Tihar Village,
Delhi.
2. Hari Om Sharma,
S/o Sh. Krishan Chand,
R/o WZ 110 A, Uttam Nagar,
Delhi.
3. Rajiv Kumar @ Raju,
S/o Sh. Om Prakash,
R/o B-138, Parshant Vihar,
Delhi.
4. Munni Lal Kashyap,
S/o Sh. Channu Ram
R/o 23/1437, Naiwala,
Karol Bagh, Delhi.
5.Offences charged with : Hari Om Sharma u/s
420/468/471/34 IPC & 201 IPC;
Sanjay Gaur and Rajiv u/s
420/468/471/34 IPC and
M.L. Kashyap u/s 420/34 IPC.
6.Date of reserving the order : 26.06.2012
7.Sentence or final order : Accused Hari Om Sharma and
M.L. Kashyap are convicted
under Section 420/34 of IPC.
Accused Sanjay Gaur and Rajiv
FIR No.: 426/88
PS: Karol Bagh
State v. Sanjay Gaur etc. 1/66
are acquitted.
8.Date of order : 21.07.2012.
JUDGMENT
1. The present case emanated from the complaint Ex. PW-3/A of Sh. S.C. Bahri (PW-3), Manager, Karol Bagh Branch, Bank of India. Through his complaint, PW-3 reported about the fraud of Rs.6,75,000/- in saving bank account no. 16917 of M.L. Kashyap. He further reported that the fraud had been perpetrated against the bank in the above captioned account from where Rs.6,75,000/- had been fraudulently withdrawn in cash vide a cheque number 029910 dated 27.09.1988 for Rs.6,75,000/- favouring Sh. M.R. Anand and as such the bank had been cheated of the said amount by the account holder himself and/ or with the connivance of the payee of the cheque named above and/ or with the connivance of one of their staff Hari Om Sharma who introduced the account. Thereafter, the present case was registered.
2. After investigation, charge-sheet was filed against accused Sanjay Gaur, Hari Om Sharma, Lajpat Rai, Rajiv Kumar and Munni Lal Kashyap. The copies of charge-sheet were supplied to the accused persons in compliance of Section 207 Cr.P.C. Subsequently, on expiry of accused Lajpat Rai, proceedings against him were abated vide order dated 18.08.1994. Thereafter, vide order dated 28.04.1995, charges were framed against the accused persons i.e. under Section 420/468/471/34 of the Indian Penal Code (for short 'IPC') and under Section 201 IPC against accused Hari Om; under Section 420/468/471/34 IPC against accused Sanjay Gaur and FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 2/66 Rajiv and under Section 420/34 IPC against accused M.L. Kashyap, to which they pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 15 witnesses. PW-1 is Ashok Sahni. He submitted that in the year 1988, on the day of incident, he was working as cashier; he had made the payment of the cheque to the person who came with the token; he could not tell how were the persons involved in that case. During his cross examination by Ld. APP, he deposed that he could not identify the accused. PW-2 is Jai Bhagwan Sharma. He stated that someone wished to get the name of the school printed on the cheque book and he came to know that the name was Hari Om Sharma; he gave a rough proof; the rough proof was given by his employee to Hari Om Sharma; he did not know who was Hari Om.
PW-3 is S.C. Bahri. He deposed that there was no matching of credit of Rs. 6,75,000/- of the saving account from which the amount [of Rs. 6,75,000] was withdrawn; the amount of Rs.5,75,000/- was withdrawn unauthorisedly and fraudulently in connivance with one staff member Hari Om Sharma who was holding the ledger keeping; he reported to higher authorities for seeking instructions for filing of an FIR. He tendered his complaint Ex. PW-3/A. His deposition remained unchallenged.
PW-4 is Darshan Singh. He stated that on 27.09.1988, he was working as Deputy Manager Administration, Karol Bagh Branch, Delhi. One cheque came for double cancellation pertaining to account no. 16917 of M.L. Kashyap for Rs.6,75,000/-; the cheque was in favour of M.R. Anand; since the cheque was heavy amount, he asked from drawer of the cheque as to know the reason for withdrawal of such a big amount; he was told by M.L. FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 3/66 Kashyap that he was going to invest this amount to some property and he would redeposit the amount after sometime. He obtained the signature on the front of the cheque and after verifying the signature of the card, he cancelled the signature and sent the cheque for payment. On next day, there was a union strike; they saw the ledger of the bank were unbalanced; they started balancing the ledger; while balancing the ledger, they found that in one of the ledger, one page was missing. They further investigated and found that the page was pertaining to account of M.L. Kashyap no. 16917; they tried to locate whether he had earlier deposited the sum but entry was missing. Then they came to the conclusion that only Rs.1.00 was deposited on the previous date, the last date on which the sum was withdrawn. Hari Om Sharma was ledger keeper who posted the cheque on that day. Since the bank was deficit by Rs.5,75,000/-, the police complaint was lodged by the Bank Manager. During enquiry, Hari Om Sharma and M.L. Kashyap were not available. He further stated that prior to the registration of the case, Hari Om Sharma met with the Manager of the bank and assured him that money would be deposited. When he was going to the police station to enquire about the case, one of the accused Sanjay Gaur was arrested outside the police station; police made enquiry from accused Sanjay Gaur; he signed documents either one or two. He tendered disclosure statement of accused Sanjay Gaur vide Ex. PW-4/A and his personal search memo vide Ex. PW-4/B. During his cross examination by accused Hari Om Sharma, he deposed that he made written statement to Manager, Bank of India regarding this incident. He (the witness) was shown the photocopy of above mentioned letter Ex. PW-4/DA. The balance book pertaining to ledger no. 40 belonged to the bank and photocopy of page no. 9 was also tendered vide Ex. PW-4/DB. He stated that cheque return book was maintained in case some objection was there FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 4/66 with respect to the said cheque and the entries of the same were made in the cheque return book. He further deposed that the instruments received for cash payment were entered into the cash payment scroll book. Ex. PW-4/DC was the certified copy of cash payment scroll book. He stated that the entry at the beginning of Ex. PW-4/DC started from token no. 1 and there was no entry relating to token no. 23. He voluntarily submitted that [Ex. PW-4/DC] did not show the full transaction of that day. During cross examination by accused Rajiv, he deposed that he did not recognize [him] because he could not recollect. He admitted that none from the investigating agency ever came to him or requested him for any identification of accused Rajiv. During cross examination by accused M.L. Kashyap, Rule 8.1 of Chapter 5 of the Rules of the Bank was tendered vide Ex. PW-4/D1. He deposed that as per practice, there was no need for checking of balance at the time of cancellation at second time. He could not tell in fact who received the cash against the cheque; he could not tell who had signed as M.R. Anand; he could not tell whether those were signatures of accused Rajiv; he did not remember whether accused M.L. Kashyap sent a regd. AD letter to their branch; the copy of which was Mark D. PW-5 is R.U.K. Saxena, Deputy Manager, Bank of India. He deposed that he had obtained Rs.5,75,000/- on superdari by the order of Court vide superdaginama Ex. PW-5/A and the IO seized the remaining Rs.25,000/- out of Rs.6,00,000/- which was taken by the IO from the Treasury by the order of Ld. MM vide memo Ex. PW-5/B. He further deposed that the money obtained on superdari was deposited in the Bank under the head CD miscellaneous. He tendered certificate issued by Chief Manager regarding the deposit and the copy of payment showing the amount FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 5/66 deposited vide Ex. PW-5/C and PW-5/D. PW-6 Ct. Narender deposed that on 04.10.1988 they had taken Hari Om to WZ-110A, Uttam Nagar, Delhi where he took out the keys under the pillow and opened the box and took out 7 sets of documents related to the property situated at Rohini. The documents were taken into possession vide memo Ex. PW-6/A. During cross examination by Ld. APP, he admitted that disclosure statement of accused Hari Om Ex. PW-6/B was signed by him. He further admitted his signatures on personal search memos Ex. PW-6/C, PW-6/D, PW-6/E and PW-6/F. During his cross examination by accused perons, he stated that IO of the case had prepared list of documents seized from the site in his presence on 04.10.1988. He stated that he could not say what were the contents of the documents Ex. PW-6/B to PW-6/F. PW-7 is ASI Sajjan Singh. He tendered FIR vide Ex. PW-7/A. PW-8 is P.C. Bhutani. He deposed that he was working as stamp vendor at Kashmiri Gate in the year 1990. He could not say about the numbers of the stamp paper which were sold by him. During cross examination by Ld. APP, he submitted that stamp papers no. 38165 to 38171 Ex. P-1 to P-7 were sold by him on 21.09.1998. During his cross examination by accused persons, he stated that he did not know to whom stamp papers were sold. PW-9 is Ct. Himmat Singh. He submitted on the similar lines as deposed by PW-6. During his cross examination by accused persons, he deposed that he could not say what were those documents which were got recovered by the accused Hari Om and taken into possession by the IO. He admitted the suggestion that the list of documents were prepared on the same day on which the documents were seized in his presence. PW-10 is FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 6/66 HC Daya Ram. He deposed that on 03.10.1998, he was posted at PS Karol Bagh. Specimen handwriting of accused Sanjay Gaur, Rajiv and Hari Om were taken; all the sheets were signed by him and counter signed by SI Ashok Kumar; on 06.10.1988, specimen handwriting of Munni Lal Kashyap was taken. He tendered specimen handwriting Ex. P-1 to P-64. During his cross examination by accused Hari Om, he deposed that specimen handwriting of accused Hari Om Sharma was taken in the police station on 03.10.1988. PW-11 HC Jagdish Narayan tendered the disclosure statement of accused M.L. Kashyap vide Ex. PW-11/A. PW-12 is Insp. Ashok Kumar. He deposed that on 30.09.1988, a complaint was received from the Manager, Bank of India, Karol Bagh Branch that Rs.6,75,000/- had been fraudulently withdrawn from the account of M.L. Kashyap with the help of Hari Om Sharma, who was the bank employee; on this complaint, case was got registered on the endorsement Ex. PW-12/A. The investigation was handed over to him. He recorded statement of the witnesses under Section 161 Cr.P.C. and seized the relevant documents vide seizure memo Ex. PW-6/A. Subsequently, accused persons were arrested; their disclosure statements were recorded; the documents were taken into possession during investigation of the case vide Ex. PW-12/B, PW-1/A and PW-5/B; the cash amounting to Rs.6.00 lacs was taken into possession vide memo Ex. PW-12/D. The specimen signatures and handwriting of the accused persons were taken and sent to FSL for comparison. He further submitted that Rs.5,75,000/- were handed over to U.K. Saxena, Manager of Bank of India on superdari and Rs. 25,000/- were released to Mela Ram.
PW-13 Ashok Kumar stated that all record pertaining to stamp vendors FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 7/66 upto 31.03.1990 had been destroyed as per approval of Chief Controller, Revenue Authority. He tendered letter to this effect vide Ex. PW-13/A. PW-14 Naval Kishore produced ledger no. 40 mentioning the account number and the name of the account holder from page no. 2 to 384 showing the balance amount of the respective account holders from which the saving bank ledger no. 40 account balances sheet were prepared; the same were tallied by the entries and amounts, as per the sheet Ex. PW-14/A. The entries mentioned showed the individual account holders balance in their respective accounts on 15.09.1988. During cross examination by accused Hari Om Sharma, he stated that he could not tell whether Darshan Singh tallied the balance of the ledger in question on 28.09.1988. He had no record which showed that Darshan Singh tallied the ledger in question on 28.09.1988, as he was not posted in the said branch at that time. He could not tell when the ledger in question was tallied after 15.09.1988.
PW-15 V.K. Khanna tendered the CFSL report vide Ex. PW-15/A. He further stated that handwriting evidence pointed to the writer of the specimen writing marked S1 to S20, which was Ex. PW-15/A1 to PW-15/A20 being the person responsible for the writing the questioned writing and signatures Marked Q8 to Q12, which was Ex. PW-15/B. Handwriting evidence pointed to the writings and signatures Marked S42 to S68, which was Ex. PW-15/C1 to PW-15/C28 and A1, which was Ex. PW-15/D being the person responsible for writing the questioned writing and signatures Marked Q1 to Q5 and Q7 on Ex. PW-15/E, Q13 to Q16 on Ex. PW-15/F, Q24 and Q25 on Ex. PW-15/G. He further stated that there were certain similarities between the questioned signatures and specimen writing which gave grounds for suspecting that the writer of the specimen FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 8/66 Marked S39 to S41, which was Ex. PW-15/H1 to PW-15/H3 being the person responsible for writing the questioned signatures Marked Q6 on the back of Ex. PW-15/E.
4. After conclusion of prosecution evidence, statement of the accused persons were recorded. Accused Sanjay Gaur stated that he did not make any disclosure statement; police officials obtained his signature at blank paper and he had been falsely implicated by the police in this case.
Accused Hari Om stated that the present case was lodged by S.C. Bahri at the instance of other senior officers of the bank in order to save themselves who were responsible for the alleged payment; police falsely arrested him and obtained his signature on blank papers; nothing was recovered from him.
Accused M.L. Kashyap submitted that bank witnesses produced by the prosecution were in fact accused and in order to shield themselves and their co-employees, [they] made false statement in order to falsely implicate him. The investigation was false, incomplete, faulty and biased. He further submitted that he was interested to purchase the property through property dealer named Rajiv, who had shown the property of M.R. Anand. Rajiv induced him to deliver the cheque in question so as to create a trust in the mind of property owner/ seller M.R. Anand that he was a genuine buyer. On his inducement, he had given to Rajiv a post dated cheque in the name of M.R. Anand; however, later on Rajiv unauthorisedly misused the cheque in question. He had been wrongly deprived of his money lying with the bank. The witnesses were in conspiracy with the bank officials. Fraud had been practised against him. FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 9/66 Accused Rajiv stated that he was wrongly arrested by the police at the instance of other accused. Police officials obtained his signatures on blank paper. Regarding CFSL report, he stated that report was false and without any basis.
Accused Sanjay Gaur and accused Rajiv did not opt to lead defence evidence, while accused Hari Om and M.L. Kashyap wished to lead defence evidence.
5. Thereafter, accused M.L. Kashyap moved an application on 20.10.2008 for summoning Branch Manager, Bank of India, Karol Bagh Branch, New Delhi. Subsequently, DW-1 Vinod Vats was examined. He stated that when the instrument/ cheque bearer visits the bank for its encashment, he has to present the cheque to the ledger keeper who gets the signature of the presenter of the cheque on the back side of the cheque; the ledger keeper checks the balance of said account and if there is sufficient balance in the account, the amount of the cheque in question is entered into the ledger by the ledger keeper. In case, there is not sufficient balance in the account of the account holder, the cheque in question is returned back to its presenter. After posting the entry into the ledger, ledger and cheque are given to the Cancellation Incharge who checks and tallies the signature of account holder with the cheque in question and also tallies if there is sufficient balance available in the ledger to encash the cheque in question. On being satisfied of sufficiency of balance and the signatures tally with the account holder, the cheque in question is signed by the officer/ cancellation incharge. Thereafter, the ledger alongwith the cheque sent to second cancellation incharge, if the cheque amount is heavy. The second FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 10/66 cancellation officer also verifies the signature and sufficiency of the balance in the account and thereafter, he also signs on the cheque. Thereafter, the cheque in question is sent for payment with payment scroll book to the cashier. The cashier takes back the token from presenter of the cheque and obtains his signature on the back of the cheque as token of having received the payment against the cheque. He further stated that cheque exceeding Rs.50,000/- is considered as heavy amount. During cross examination by Ld. APP, he stated that the primary liability to check the ledger book is of the officers to tally and match the signatures of cheque in question with the specimen signature of account holder. The ledger keeper was responsible for posting the entry in the ledger book and the ledger book remains in custody of ledger keeper during day time; ledger keeper was liable to make report if any discrepancy in ledger book or any page found missing from the ledger book.
6. Subsequently, accused Hari Om Sharma moved an application under Section 315 Cr.P.C. to produce himself as witness in his defence. He examined himself as DW-2. DW-2 stated that he was working as clerk cum cashier in Bank of India. In July 1988, the annual rotation of seats took place and his seat was kept as leave reserve i.e. he had to work as per the directions of the Deputy Manager on various seats where the regular clerk went on leave. In September, 1988, he worked on cash credit seat from 01.09.1988 to 21.09.1988 and on FDR seat from 22.09.1988 to 25.09.1988 as the regular clerks of the seats were either on leave or were deputed to some other seats. On 27.09.1988 at around 10:15 am, he was called by Darshan Singh, then Deputy Manager Administration to ask him to work on saving bank seat as the regular clerk Ms. Neena Behl did not come to the bank on that day; he obeyed his instructions and went to the FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 11/66 seat and started work; at around 11:15 am, a person came to the counter and presented a cheque Ex. PW-15/E for payment; the amount of the cheque was Rs.6,75,000/- and it was drawn in favour of M.R. Anand or bearer; the person was accompanied by M.L. Kashyap, the account holder in whose saving bank account the cheque was drawn; since the cheque was bearer and the payee of the cheque was accompanied by the account holder, he issued the token and obtained his signature on the back of the cheque. He further stated that upon verification of the saving bank account, he found that the balance available in the account was not sufficient to pay the cheque; so he prepared cheque return memo citing the reason refer to drawer and sent the memo and cheque to B.K. Bhatnagar, the then saving bank incharge for his signature and to return to the presenter of the cheque. Bhatnagar called him and told that there was no need to return the cheque as he and Darshan Singh had already talked to the account holder; he had deposited Rs.1.00 lac in the account and would deposit the rest amount soon. He saw that account holder M.L. Kashyap was sitting before Darshan Singh and talked to him as Darshan Singh seat was next to Bhatnagar. He further stated that as the amount of the cheque was more than Rs.5,000/- where spot checking of the ledger account was necessary before making the payment and the liability of the payment was of the bank officials by passing the cheque and signing the ledger, so he obeyed the instructions and recorded the payment in the ledger account and sent the ledger, the payment scroll book and the cheque to first cancellation officer and engaged in the other work. After lunch, he recorded the deposit vouchers in the ledger and wrote the saving bank supplementary book in which the whole day transactions were recorded. He left the seat after 4 O'clock. On 28.09.1988, there was union strike and all the clerical staff were on leave including him. He came to the bank on 29.09.1988 and FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 12/66 came to know that some fraud took place in M.L. Kashyap account and the ledger of the same account was torn off. He was called by the Manager to whom he gave whole description of the incident on 27.09.1988 and they started recovery efforts. M.L. Kashyap was not traceable at that moment and bank officials pressurized him saying that he too was the party of the payment process. The recovery efforts continued till 30.09.1988 evening but no further recovery could be made. Since all the figures of 30.09.1988 were to be reported to the Head Office vide quarter returns and this overdraft was of temporary nature without obtaining any sanction from the higher authorities, the bank officials finally put his service under suspension and lodged the FIR. However, his work was withdrawn on 29.09.1988 morning and only enquiry were made on 29.09.1988 and 30.09.1988. The Police made enquiry from him and searched his house from where they recovered 7-8 bank circulars and his saving bank cheque book. This process continued till 03.10.1988 and thereafter, they arrested him. DW-1 was recalled for examination vide order dated 26.04.2011 of the Court and he tendered Manual of Instructions Volume 1 Chapter 5 vide Ex. DW-1/A.
7. I have heard Ld. APP for State and Ld. Counsels for accused persons. I have perused the record and written arguments furnished on behalf of accused persons too.
8. Ld. APP commenced his arguments with the gist of prosecution case that all the accused persons conspired to defraud the bank. The accused M.L. Kashyap used his saving bank account by issuing the cheque of Rs. 6,75,000/- in the name of M.R. Anand while he (M.L. Kashyap) was not having sufficient balance to pay the cheque amount to the payee; he was FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 13/66 present in the bank at that time when accused Rajiv impersonating himself as M.R. Anand presented the impugned cheque for encashment. The accused Rajiv signed at the back of the impugned cheque while presenting it for encashment as well as while receiving the amount of cheque after clearance. Further, accused Sanjay Gaur was also present in the bank at the time of entire process of encashment of the impugned cheque; he was instrumental in providing the cheque amount and other negotiable instruments to M.R. Anand as consideration amount for the dealing of property between Sangeeta w/o Hari Om Sharma and M.R. Anand and his wife. Ld. APP, lastly, contended that accused Hari Om Sharma initiated the process of encashment of the impugned cheque, while he was working on the seat of saving bank ledger keeper on the impugned day, despite having knowledge of the fact that M.L. Kashyap was not having sufficient balance to the tune of Rs.6,75,000/- in his saving bank account and further, he torn off the respective folios of ledger containing details of saving account of M.L. Kashyap to destroy the evidence.
9. Now, considering the different role allegedly played by accused persons in the impugned incident, it would be appropriate to decide the culpability, if any, of the accused persons one by one.
Accused Hari Om Sharma:
Ld. APP argued that accused Hari Om Sharma had entered into an agreement in the name of his wife with M.R. Anand to purchase a property from him, he had paid earnest money to him and he was to pay balance amount to him (M.R. Anand); simultaneously, he (Hari Om) was working in the bank and was posted as reliever in the branch; he was waiting for an opportunity to defraud the bank and thereby, to arrange the amount for FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 14/66 balance payment of the deal of the property; on 27.09.1988, he got such opportunity and while he was given the seat of saving bank ledger keeper; he became instrumental in the encashment of the impugned cheque by posting it (cheque) in the ledger despite having knowledge of the fact that M.L. Kashyap from whose account the cheque had been drawn was not having sufficient balance to pay the cheque amount and lastly, the cheque amount was paid to accused Rajiv.
10. In the present case, PW-4 (Darshan Singh) is the star witness. He deposed that Hari Om Sharma was the ledger keeper who posted the cheque on that day and the impugned cheque came for double cancellation to him as he was second cancellation officer.
Ld. Counsel for accused Hari Om raised the doubt against the investigation conducted by PW-12 (IO) stating that as to why first cancellation officer B.K. Bhatnagar was not joined in the investigation as a witness or as an accused. He further argued that B.K. Bhatnagar was the first cancellation officer and he was to perform the duty of checking the balance in the account before sending the cheque to the second cancellation officer. Ld. Counsel further contended that rather B.K. Bhatnagar was the main accused in the present case; he had instructed accused Hari Om to clear the impugned cheque as the account holder accused M.L. Kashyap had talked to Darshan Singh stating that he (M.L. Kashyap) had already deposited Rs. 1.00 lac and would deposit the rest amount soon.
11. From the cross examination of PW-12, it appears that he did not perform his duty to conduct investigation covering all the aspects related to the impugned incident. He himself admitted during his cross examination FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 15/66 that he had no exact knowledge of encashment of cheque except it was told to him by Bank Manager. He further stated that he did the investigation as per the statement given by Bank Manager and other officials of the bank; he believed the statement given by the Manager of the bank and other officials of the bank; accordingly, as per statements, bank officials were not involved in the fraud except accused Hari Om.
If the investigating officer had conducted the investigation independently and after applying his mind, on the statements of the witnesses recorded during investigation and, documents presented to him or recovered by him during investigation, then he must not have deposed before the Court that he had believed the statement given by the Manager of the bank and other officials of the bank. But this is one side of role played by the investigating officer, in the present case of prosecution, as a witness deposing before the Court. There is other side too i.e. the whole investigation, including examination of witnesses and collection of evidences/documents, conducted by him (IO). In the present case, it is not the situation that the investigating officer had merely recorded the statements of bank officials and forwarded the accused persons for trial. He had taken other steps too during the investigation in to the case. Even otherwise, if the investigating officer has not performed his duty in the expected manner, the same does not wash off the whole case of prosecution. If the material witnesses have deposed unaffected by the lapses of the investigating officer, then the accused persons can be held guilty for their acts proved by the testimony of those prosecution witnesses.
In this regard, the Apex Court in Ambika Prasad v. State (Delhi Administration), AIR 2000 SC 718, has held that:
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 16/66
8. [D]ealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed :-
"....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice."
9. Further in Paras Yadav and others v. State of Bihar, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held :-
"...It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
In Zindar Ali SK v. State of West Bengal, 2009 (2) RCR (Criminal) 26, the Apex Court has further elaborated that:
13. [I]t is trite law that the defence can not take advantage of such bad investigation where there is clinching evidence available to the prosecution as in this case.
12. Applying the above mentioned legal position to the present facts and circumstances, it is required to examine whether the evidence dehors omissions of the investigating officer is sufficient against the accused persons to hold them liable for the offences alleged against them. Even if, for the sake of arguments, the argument of accused that first cancellation FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 17/66 officer B.K. Bhatnagar should have also been made an accused in this case is accepted; this alleged lapse on part of the investigating officer cannot absolve accused Hari Om Sharma of his alleged illegal act of posting the impugned cheque.
13. Now, the accused Hari Om has himself admitted while examining himself as DW-2 that he was working as saving bank ledger keeper on 27.09.1988 and the cheque Ex. PW-15/E was presented to him for payment. He has taken the defence that initially, he found that balance available in the account was insufficient, so he prepared cheque return memo to dishonour the cheque and sent the memo to Bhatnagar; but, thereafter, at instance of B.K. Bhatnagar, he recorded the payment in the ledger account and the cheque alongwith ledger book and scroll book were sent to the first cancellation officer. Surprisingly, even if the investigating officer had not joined B.K. Bhatnagar in the present case as a witness or as an accused and if accused Hari Om wished to prove the point against B.K. Bhatnagar (and in his favour) that he (B.K. Bhatnagar) had instructed him for payment of the impugned cheque in the ledger while the account was not having sufficient balance for payment of the cheque, then why he (Hari Om Sharma) despite having sufficient opportunity, did not call him as a witness or ask for the same. But he did not do so for the reasons best known to him. Even otherwise, while cross examining the star witness of the prosecution i.e. PW-4, he merely put one suggestion to PW-4 that initially, the cheque was returned to the presenter of the instrument. He did not put his defence to PW-4 as projected by him while examining himself as DW-2. He did not seek any clarification from PW-4 as to whether cheque was encashed on the instructions of B.K. Bhatnagar and Darshan Singh (PW-4) himself. Further, DW-2 during his cross examination FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 18/66 admitted that he did not initiate any action before any competent authority of law to put them [B.K. Bhatnagar and Darshan Singh] in docks. If accused Hari Om had been falsely implicated in the present case, that too in a case pertaining to cheating of Rs. 5,75,000 and his service must also be at stake, for no fault on his part; then he would have initiated suitable action/s against the erring officials before appropriate forums. In these circumstances, it is clear that when the accused did not seek any clarification and explanation from PW-4 qua his defence that it was only B.K. Bhatnagar or Darshan Singh who had asked him to encash the cheque despite insufficiency of funds in the accused account no. 16917; his defence, as DW-2, to this effect shall be considered an after thought.
14. Furthermore, Ld. Counsel for accused M.L. Kashyap argued that if accused Hari Om Sharma had claimed that initially he had prepared a cheque return memo, then he (Hari Om Sharma) himself should have led an evidence to substantiate his claim; the onus to prove this point was upon accused Hari Om Sharma. The Court is in agreement with the submission of Ld. Counsel for accused M.L. Kashyap that in view of Section 103/106 of the Evidence Act, onus was upon accused Hari Om Sharma to prove his plea.
The Apex Court in Sawal Das v. State of Bihar, AIR 1974 SC 778, has held that:
9. [T]he language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it.
This Court held in Gurcharan Singh v. State of Punjab, AIR 1956 SC 460, that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 19/66 his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt.
10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.
15. Ld. Counsel for accused Hari Om argued that vide his application dated 13.05.1999, accused had applied for production of three documents i.e. saving bank account balance book of ledger no. [40] for September, 1988, the Manual of Instructions regarding current and saving bank account general and outward cheque return book dated 27.09.1988; but the bank deliberately did not produce the cheque return book dated 27.09.1988 which could have proved the innocence and defence of the accused.
The perusal of record reveals that the said application was allowed by the Court vide its order dated 31.05.1999 with the observations that bank officials were directed to produce the documents stated by the Counsel, which was given in writing to them. On the next date i.e. 05.07.1999, PW-4 was further cross examined by accused Hari Om wherein it has been recorded that cheque return book was maintained in case some objection was there with respect to the said cheque and the entries of the same were made in the cheque return book. PW-4 denied the suggestion that cheque return book was misplaced to destroy the evidence. It is pertinent to note that impugned incident was of 27.09.1988 and the application for FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 20/66 production of documents was moved on 13.05.1999 i.e. after lapse of almost 11 years of the incident. The bank provided cogent reason for not maintaining the cheque return book as observed from the cross examination of PW-4. Hence, it can not be said that cheque return book was not produced by the bank officials deliberately. Moreover, it has already been observed that it is the admitted case of accused Hari Om that he had posted the impugned cheque by making entry in saving bank account ledger; hence, the argument of preparation of cheque return memo becomes immaterial.
16. Ld. Counsel for accused Hari Om contended that as per the manual of the bank Ex. DW-1/A, the impugned cheque could have been encashed/ passed only with the help of first and second cancellation officer and there was no allegations in the testimony of PW-4 that accused Hari Om came to him asking for the encashment of the impugned cheque.
Now, during his cross examination done on behalf of accused M.L. Kashyap, PW-4 admitted that in Rule No. 8.1 Chapter 5 of the Rules of the Bank, it was also stated that Cancellation Officer should also examine the facts examined by the ledger keeper while scrutinizing and posting of the cheque. He further stated that as per practice, there was no need to check the balance at the time of cancellation at second time. Further, Ex. DW-1/A which was related to the payment and encashment of the cheques contains the duties of ledger keepers who is to ensure that clear balance is available to post the cheque and that amount in words and amount figure should tally [Rule 3.1(e)].
Moreover, above mentioned manual Ex. DW-1/A did not precisely contain FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 21/66 the duties of Cancellation Officers qua checking of balance in the saving account where from the cheque was to be paid. It (manual) had prescribed, mainly, the duties of Cancellation Officers qua the verification of instruments/ cheques as to whether the same duly bears the signature of the account holder and whether the instrument/ cheque is genuine one. Specifically, Rule 8.1 contains that 'apart from item scrutinised by the ledger keepers before posting the cheques in the ledger, the cancellation officers should also examine in particular that the cheques/ withdrawal forms etc. are not stale or post dated, the cheques presented for payment across the counter are not crossed and the amount in words and figures agree'. Hence, although in the said manual, it has not been specifically prescribed to the Cancellation Officer to check whether clear balance was available to post the cheque or not, but it is categorically stated that it is initial duty of the ledger keeper to ensure the fulfillment of above mentioned requirement i.e. whether sufficient balance is available in the account to post the cheque.
Moreover, PW-4 denied the suggestion that instrument come for second cancellation along with the ledger of the concerned account. Accused Hari Om Sharma did not agitate the above mentioned suggestion put to PW-4 and seek any clarification from him as to whether ledger was also sent to him while the cheque was sent for second cancellation to him and he had an occasion to check the sufficiency of the balance in the account no. 16917.
So far as his duty vis-a-vis Manual Ex. DW-1/A is concerned, PW-4 deposed that since the cheque was heavy amount, he asked from drawer of the cheque as to know the reason for withdrawing such a big amount; he FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 22/66 was told by M.L. Kashyap that he was going to invest this amount to some property and would redeposit the amount after sometime; he obtained the signature on the front of the cheque and after verifying the signature of the card, he canceled the signature and sent the cheque for payment. Hence, PW-4 has precisely explained the manner in which he performed his duty as second cancellation officer. Had the accused brought this fact into the notice of the Cancellation Officer that the account holder who had issued the cheque of the Saving Bank Account no. 16917 was not having the clear balance to post the impugned cheque, then Cancellation Officers must not have allowed the payment of the impugned cheque. Above all, it was only accused Hari Om who had initiated the process of encashment of the impugned cheque.
17. Now, accused Hari Om took the defence that he followed the command of his superior officers. In other words, he had tried to take the benefit of Section 76 of IPC out of the said defence. It is well settled that the subordinate is not bound to act upon the illegal orders of the superior and if he (the subordinate) follow the illegal commands of the superior officer/s, he would be liable for his such act done in the guise of order of his superior/s.
The Apex Court in State of W.B. v. Shew Mangal Singh, 1981 Cri.L.J. 1683, has held that:
13. Section 76 of the Penal Code provides that nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law, to do it. The illustration to that Section says that if a soldier fires on a mob by the order of his superior officer, in conformity with the commands of the law, he commits no offence. The occasion to FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 23/66 apply the provisions of the Section does not arise in the instant case since the question as to whether the accused believed in good faith on account of a mistake of fact that he was bound by law to do the act which is alleged to constitute an offence, would arise only if, to the extent relevant in this case, the order or command of the superior officer is not justified or is otherwise unlawful. [Emphasis supplied] From the testimony of DW-2, it is clear that he (Hari Om) was aware that it was temporary overdraft case i.e. amount was withdrawn through cheque from the impugned saving bank account which was not having the matching balance to encash the cheque, and further, sanction from the higher authorities. Hence, it is clear that he (Hari Om) was having knowledge of all the rules and regulations pertaining to posting of the cheque. He had admitted during cross examination by Ld. APP that there was no such written authority from Superior Officer to him to give such huge over draft to M.L. Kashyap. In these circumstances, even if it is accepted that he had been instructed by Senior Officers to post the impugned cheque; at the same time, he knew that such instructions were not justified and lawful. Hence, he (Hari Om) would not be entitled for the benefit under Section 76 of IPC.
18. Ld. Counsel for the accused argued that there was no entry of token no. 23 in Ex. PW-4/DC, which was certified copy of cash payment scroll book. He argued that the same proved that the accused had prepared cheque returning memo in respect of the impugned cheque. Firstly, although PW-4 admitted that token no. 24 and 25 had been entered in Ex. PW-4/DC, yet he himself clarified during his cross examination that Ex. PW-4/DC did not show the full transaction of the day. Further, it is pertinent to note that Ex. PW-4/DC does not contain the particulars of FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 24/66 token numbers in the ascending order. It appears that the concerned official issued the token as per availability of the respective tokens. Moreover, the purpose of issuance of token is just to provide identification to the presenter of the cheque for the convenience of the cashier, in identifying the presenter, at the time of making payment of the cheque. Hence, he might not have found any need to issue token in ascending order. Moreover, had it been the case that the tokens had been written in Ex. PW-4/DC in ascending order from no. 1 to say no. 30 and entry of token no. 23 only was found missing from that list, then the argument for Ld. Counsel for accused Hari Om would have some force in it, but this is not so. Above all, this is own admission of DW-2 that he had issued the token.
19. Ld. Counsel for accused Hari Om Sharma raised suspicion on the version of PW-4 vis-a-vis deposition of PW-14 that the balancing of account holders of saving bank account ledger no. 40 was done on 15.09.1988 vide Ex. PW-14/A. He further argued that the ledger account was not tallied on 28.09.1988 rather the same had already been tallied on 15.09.1988, then how could the impugned incident of cheating come into the notice of the bank officials on 28.09.1988.
At this stage, it is pertinent to note that during cross examination, PW-14 deposed that he could not tell whether Sh. Darshan Singh [PW-4] tallied the balance of account in question on 28.09.1988. Moreover, PW-3 was the Manager of the branch at the relevant time. But no question was put to him by the accused persons on this aspect. PW-4 deposed that on 28.09.1988, since the ledger of the branch were unbalanced, they started balancing the ledger and during balancing the ledger, they found one page FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 25/66 of one of the ledgers missing; during further enquiry, they could unearth the impugned fraud committed against the bank. But this version of PW-4 was not agitated by accused Hari Om during his cross examination. He did not seek any clarification from PW-4 as to why the need of balancing the ledger arose on 28.09.1988 again when the ledger had already been balanced on 15.09.1988. Hence, when PW-4 had categorically stated that ledger was balanced on 28.09.1988 after observing that ledger of the branch were unbalanced, no suspicion can be raised on the case of prosecution on this aspect.
20. So far as contention that when the impugned cheating had been reported to PW-3 on 28.09.1988 itself, then why FIR was lodged only on 30.09.1988 is concerned. Accused Hari Om Sharma himself explained during his examination as DW-2 that the recovery efforts continued till 30.09.1988 evening but no further recovery could be made; since all the figures of 30.09.1988 were to be reported to the Head Office vide quarter returns and this overdraft was of temporary nature without obtaining any sanction from the higher authorities, the bank officials finally put his service under suspension and lodged the FIR. In this manner, accused himself provided the reason for delay in registration of FIR. Moreover, the bank must have taken time to ensure itself that cheating had been committed against it before filing any complaint to the police. Above all, none of the accused persons sought any clarification/ explanation on this aspect from PW-3 who is the complainant of the present case and tendered the complaint Ex. PW-3/A. Similarly, no explanation was sought from PW-4, star witness of the prosecution case, and PW-12, investigating officer of the present case, on this aspect. In these circumstances, the accused persons cannot be granted any benefit out of the argument raised FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 26/66 at the stage of final arguments only.
21. Further, Ld. Counsel for accused Hari Om argued that the complaint Ex. PW-3/A did not disclose the role of the accused Hari Om. It is not essential in cases pertaining to cheating etc. that the role played by each accused should necessarily be mentioned in the FIR itself, since such type of cases requires detail investigation to unearth the different role played by the accused persons. Moreover, precise suspicion had been shown by PW-3 against accused Hari Om in his complaint Ex. PW-3/A which negates any argument that his name in the impugned incident has been added as an after thought.
22. Further, accused Hari Om was stated to be introducer of accused M.L. Kashyap while he (M.L. Kashyap) had applied for opening of account vide card Ex. PW-15/D. PW-3 tendered his complaint Ex. PW-3/A, wherein he averred that Hari Om Sharma introduced the said account no. 16917. The testimony of PW-3 had remained unchallenged on behalf of accused Hari Om. Moreover, DW-2 (Hari Om) admitted during cross examination by Ld. APP that he was introducer of the above said account of M.L. Kashyap; further, he stated that he made this introduction at request of Deputy Manager, Darshan Singh. It is pertinent to note that no where in the lengthy cross examination of PW-4 conducted by accused Hari Om, he put this fact to him (PW-4) that he (Hari Om) had introduced M.L. Kashyap at request of PW-4. Moreover, Ex. PW-15/D bears the fact that during introduction, the introducer certified that he had known M.L. Kashyap since childhood. If the accused Hari Om Sharma had introduced M.L. Kashyap at request of PW-4, then he must have written that he knew M.L. Kashyap for such and such period rather than cutting the said words FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 27/66 'since the past _ _ years' and writing 'since childhood'. This precisely proves that accused Hari Om was known to accused M.L. Kashyap long back and had introduced him on his own volition. In other words, it further proves the past long connection of accused Hari Om and M.L. Kashyap.
23. So far as motive of accused Hari Om for commission of the impugned offence is concerned. Although the motive is not required to be proved by the prosecution, yet to remove any doubt qua the guilt of the accused, it must be deliberated upon. Ld. APP contended that the case of the prosecution qua motive of the accused is that he had entered into an agreement to purchase the property from Sh. M.R. Anand for which he had already paid earnest money to him and was to arrange balance amount. PW-6 stated that on 04.10.1988, some documents pertaining to property situated at Rohini were taken into possession vide memo Ex. PW-6/A. PW-9 deposed in the similar manner as deposed by PW-6. Perusal of documents reveals that the same were pertaining to sale of property no. DU-38 area 126 sq. meter situated at Pitam Pura, Delhi and the property was sold by M.R. Anand and his wife Santosh Anand to Sangeeta Sharma, wife of Hari Om Sharma.
Ld. Counsel for accused Hari Om argued that testimonies of PW-6 and PW-9 can not be read in evidence since they had been declared hostile by the prosecution. Further, he (Ld. Counsel) raised the doubt that cutting in the document Ex. P-1 to the effect that total sum of 'Rs.2,80,000/-' was changed to 'Rs.2,75,000/-' had not been initialed by the persons who had executed the documents; the documents were not registered; moreover, the property documents were prepared in the name of wife of accused Hari Om but those were not even signed by Sangeeta Sharma (wife of accused) FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 28/66 or accused himself and further, execution of the same were not witnessed by any person. Ld. Counsel, further, argued that the prosecution failed to examine M.R. Anand as well as Santosh Anand who had allegedly executed the documents.
On the above mentioned aspect, Ld. Counsel for accused M.R. Kashyap argued that in the year 1988, the immovable property used to be sold on the basis of execution of General Power of Attorney and other related documents. Further, the documents must have been prepared in pursuance of agreement between M.R. Anand and Hari Om Sharma, since the details of particulars of Sangeeta W/o Hari Om Sharma could have been provided by accused Hari Om Sharma only. Further, the version of PW-6 and PW-9 qua recovery of documents from the house of accused Hari Om remained unmoved during their cross-examination. Ld. Counsel lastly argued that above all, accused himself had admitted while deposing before the Court that his house was searched by the police.
24. First of all, the legal position qua hostile witness has been explained by the Apex Court in Radha Mohan Singh @ Lal Saheb v. State of U.P., AIR 2006 SC 951, that:
7. [I]t is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.
Hence, the testimonies of PW-6 and PW-9 can be accepted to the extent their version are found to be dependable after scrutiny. Firstly, PW-6 and FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 29/66 PW-9 categorically stated that seven sets of the documents related to the property were seized from the house of the accused. PW-12 (Investigating Officer) had also deposed about the seizure of the documents vide seizure memo Ex. PW-6/A. Further, so far as version of PW-9 made during his cross examination that he could not say what were those documents which were recovered from the house of accused Hari Om is concerned, the same is not material as any police official accompanying the investigating officer is not supposed to read and cram the contents of the documents which have been seized by the investigating officer. Moreover, no clarification/ explanation was sought from the investigating officer on this aspect by accused Hari Om Sharma during his (PW-12) cross examination. The accused did not even challenge the version of PW-12 on this aspect. Hence, it is proved that property documents Ex. P-1 to Ex. P-7 were recovered from the possession of accused Hari Om.
Further, so far as non-registration of the documents are concerned, the Court is in agreement with the submission of Ld. Counsel for the accused M.L. Kashyap that in the year 1988, the property used to be sold on the basis of execution of General Power of Attorney and other related documents. Moreover, PW-8 has deposed during his cross examination by Ld. APP that stamp papers Ex. P1 to P7 were sold by him on 21.09.1988 i.e. prior to the commission of impugned offence on 27.09.1988. The investigating officer or any other person must have not procured the stamp papers in the back date just to prove the point of motive to commit the impugned offence against the accused persons.
Further, accused Hari Om himself admitted during cross examination of DW-2 by Ld. APP that he had made the agreement to buy the property FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 30/66 bearing no. DU-38, Pitam Pura, Delhi [as mentioned in the related documents too] and he made initial payment of Rs.90,000/- to him (Sh. M.R. Ananad). The same proves that both the parties namely accused Hari Om Sharma and M.R. Anand had entered into an agreement qua property bearing no. DU-38, Pitam Pura, Delhi.
Further, DW-2 (accused Hari Om Sharma) had stated that he had made initial payment of Rs.90,000/- by availing housing loan from the bank and the rest payment was to be made by availing house loan from his employer i.e. Bank of India, Karol Bagh. The accused neither produced any documentary evidence, qua availing loan facility from the bank to the tune of Rs.90,000/- and further, qua initiation of the process of availing housing loan from his employer for making rest of the payment, to substantiate his above said version.
Further, so far as non examination of PW M.R. Anand is concerned, vide order dated 22.10.1997 of this Court, he was removed from the list of witnesses since he had expired.
Further, perusal of documents reveals that there was no specific need to sign the documents by Sangeeta. Further, cutting not initialed by executant is also not material to doubt the execution of the documents. Hence, admission of Hari Om about the agreement with M.R. Anand, recovery of documents from his possession, date of purchase of stamp papers antedate of impugned incident and non-production of any document to prove the source of money to pay consideration of purchase of the impugned property prove that accused Hari Om had committed the impugned cheating to arrange the money for payment of balance amount of FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 31/66 consideration to M.R. Anand.
25. Accused Hari Om relied upon one precedent Manoranjan Dass v. State of Jharkhand, 2004[2] JCC 1994. But in the present facts and circumstances, the issue against accused Hari Om is not that since he had introduced M.L. Khashyap while opening an account by him; hence, he would be liable for cheating committed against the bank. Hence, the above said precedent is not applicable in the present facts and circumstances.
26. Ld. Counsel argued that why releasing of Rs.25,000/- to M.R. Anand was not objected by the prosecution. He questioned that when the transaction of property was not completed and the property remained in the ownership of M.R. Anand, then how he was entitled for release of Rs. 25,000/- in his favour. He lastly argued that it appears that M.R. Anand was a fictitious person.
It is pertinent to note that Rs.6.00 lacs were handed over by M.R. Anand and the same were seized vide seizure memo Ex. PW-12/D. As per the case of prosecution, amount of Rs.6.00 lacs was given by accused Hari Om Sharma and co-accused persons to M.R. Anand in lieu of payment of consideration amount for the purchase of property from him. Out of the recovered amount of Rs.6.00 lacs, Rs.5,75,000/- was given to the bank as it has been cheated to that extent. PW-12 stated that Rs.25,000/- were kept in the malkhana which was later on released to M.R. Anand by the order of Court. From the above mentioned version of PW-12, it appears that accused persons did not agitate the issue of releasing of Rs.25,000/- to M.R. Anand at the time of order of release of said amount. Further, again no clarification/ explanation was sought from the investigating officer FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 32/66 during his cross examination on this aspect. Further, it appears that accused persons did not move any revision against the order of releasing of Rs.25,000/- to M.R. Anand. Further, it appears that accused persons did not agitate the issue at the relevant time of releasing amount to M.R. Anand since it might have created an evidence against them that they were involved in the impugned incident of withdrawal of the amount of Rs. 6,75,000/- from the bank or they were having connection with M.R. Anand qua purchase of property. So far as claim of M.L. Kashyap over Rs. 25,000/- is concerned, he too did not initiate any action for releasing the amount in his favour. He too did not put any question on this aspect to the respective prosecution witnesses. It has already been observed that M.R. Anand reported to have expired on 16.04.1995 and hence, he could not be considered as fictitious identity at this stage.
27. The aspect of cheating allegedly committed by Hari Om would be further discussed at the time of examining the applicability of Section 34 in the present case.
28. Ld. Counsel for the accused Hari Om averred that there was no evidence against accused Hari Om that he was allowed to work in the bank on 28.09.1988 and thereafter, then how he could have destroyed the relevant pages of saving bank ledger. Ld. APP argued that since accused Hari Om had committed cheating qua the saving bank account 16917, the destruction of relevant pages of ledger could have benefited the accused in not getting traced; hence it shall be presumed that accused Hari Om must have destroyed those pages.
PW-4 during his cross examination stated that saving ledger are usually FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 33/66 kept in the custody of ledger keeper during course of the day; the ledgers are otherwise kept in the key and lock; the key of the almirah where the saving bank ledgers are kept is handed over to the supervisor; the key always remains with the supervisor and he opens the almirah in the morning and puts locks in the evening. He admitted the suggestion that on the day of occurrence of the offence, he had not come to know about the tearing of concerned ledger leaves of the account pertaining to M.L. Kashyap.
At this stage, it is pertinent to note that the testimony of supervisor, in whose custody the relevant ledger had been kept, or in other words, to whom accused Hari Om Sharma had handed over the custody of relevant ledger after having done the work on 27.09.1988, was material. That supervisor should have been examined by the prosecution to testify as to whether at the time of handing over of the ledger to him by accused Hari Om, the ledger was not containing the relevant leaves pertaining to account no. 16917 or if he had not specifically checked the availability of leaves in that ledger at the time of receipt of ledger from accused Hari Om on 27.09.1988, then when did he observe that the leaves had been torn off. In these circumstances, despite having strong doubt against accused Hari Om in tearing of the relevant leaves of the concerned ledger to destroy evidence of his illegal act; he would have to be given benefit of doubt on this aspect. The prosecution has failed to prove the guilt of accused Hari Om for the offence punishable under Section 201 of IPC beyond reasonable doubt.
29. Further, Ld. Counsels for accused Hari Om Sharma, Sanjay Gaur and Rajiv argued that the prosecution could not prove its case against accused FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 34/66 persons qua offence punishable under Section 468/471/34 IPC at all. They contended that specimen signatures of accused persons were not obtained with the permission of the Court. Hence, the handwriting expert opinion could not be accepted. First of all, it is clarified herein that since there are common allegations against accused Hari Om, Sanjay Gaur and Rajiv on this aspect; hence, the culpability, if any, of the accused persons has been decided qua offence punishable under Section 468/471/34 of IPC here itself.
Now, the legal position on obtaining of specimen signature/ handwriting and admissibility of handwriting expert opinion is required to be examined. The Hon'ble Delhi High Court in Bhupinder Singh v. State, Crl. A. No. 1005/2008 decided on 30.09.11, has discussed about the legality of specimen handwriting taken by the investigating officer and held that:
22.[T]he view expressed in the case of Sunil Kumar (supra) by the learned Single Judge lays down the law in correct perspective.
The Hon'ble Delhi High Court in Sunil Kumar @ Sonu v. State of NCT of Delhi, Crl. A. No. 446/2005 decided on 25.03.10, has observed that:
26. It is true that the specimen finger print impressions of the appellants were taken by the IO directly and not through the Magistrate as provided in Section 5 of Identification of Prisoners Act. But, that, to my mind was not necessary because Section 4 of Identification Prisoners Act specifically provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. In view of the independent powers conferred upon a police officer under Section4 of the Act, it was not obligatory FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 35/66 for him to approach the Magistrate under Section 5 of the Act.
He would have approached the Magistrate, had the appellants refused to give Specimen Finger Print Impressions to him. Therefore, no illegality attaches to the specimen finger print impressions taken by the Investigating Officer. The court needs to appreciate that the very nature and characterstic of material such as finger prints renders it intrinsically and inherently impossible for anyone to fabricate them. If there is an attempt to fabricate finger prints, that can certainly be exposed by the accused by offering to allow his finger prints to be taken so that the same could be compared through the process of the court. None of the appellants has come forward to the court with a request to take his finger print impressions in the court and get them compared with the chance finger prints lifted by PW-1 from Car No.DL 2C A 4116 on 21st December, 2000.
[Emphasis supplied] If the above mentioned legal position is applied in the present facts and circumstances; the accused persons did not raise any doubt during cross- examination of PW-10, who had tendered the specimen handwriting of the accused persons taken in his presence, to the effect that their alleged specimen handwriting which had been sent to FSL for analysis was not their handwriting; further, they did not come forward to the Court with a request to take their handwriting in the Court and get them compared with the questioned signatures/ handwriting. Hence, the handwriting expert report can be read into evidence, even if the specimen signatures are not taken with the permission of the Court.
30. Further, the charge has been framed against accused Hari Om under Section 468 IPC qua forging the impugned cheque Ex. PW-15/E with intention that it should be used for the purpose of cheating.
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 36/66
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.
The case of prosecution is that the account holder M.L. Kashyap himself had drawn the impugned cheque although he was not having sufficient balance in his account to get the impugned cheque encashed. It is not the case that accused persons (Hari Om, Sanjay, Rajiv) signed the cheque Ex. PW-15/E on its front side and drew the cheque in the name of M.L. Kashyap on their own. In these circumstances, the essential ingredients of definition of 'making of a false document' defined under Section 464 IPC are not fulfilled. The Apex Court in Md. Ibrahim v. State of Bihar, 2009 (8) SCC 751, has held that:
12. [I]f what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 37/66 section 471 of the Code are attracted.
Similarly, when the instrument (the impugned cheque) is not proved to be forged one, no case is proved under Section 468 IPC against accused Hari Om Sharma, Sanjay Gaur and Rajiv.
31. Further, charge has been framed against accused persons (except M.L. Kashyap) that they fraudulently and dishonestly used the impugned cheque as genuine and further, they used two bank drafts of Rs.45,000/- and Rs. 1,37,500/- as genuine which they knew to be forged documents. Firstly, the legal position qua offence punishable under Section 471 IPC has been explained by the Apex Court in A.S. Krishnan v. State of Kerala, AIR 2004 SC 3229, that:
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 necessarily 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. [Emphasis supplied] FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 38/66
32. The prosecution has failed to prove the cheque Ex. PW-15/E as a forged document; hence, S.471 of IPC does not come into picture at all qua using of that cheque. Further, it is pertinent to note that no allegations have been made by any of the prosecution witnesses qua use of bank drafts of Rs.45,000/- and Rs.1,37,500/- by accused persons. The prosecution has merely tendered a draft of Rs.45,000/- i.e. Ex. PW-15/B, that too at the time of examination of handwriting expert (PW-15), but it did not prove as to when and how the above mentioned draft was used by accused Hari Om or other accused persons. Merely tendering the forged document could not prove the offence alleged against the accused. Moreover, the prosecution should have led evidence as to whether draft had been prepared on the cheque leaf issued to the accused Hari Om Sharma in his concerned saving bank account. Above all, it has not been clarified by investigating officer as to from whose possession the alleged draft Ex. PW-15/B was seized vide memo Ex. PW-12/B.
33. Further, prosecution did not even tender the impugned forged draft amounting to Rs.1,37,500/-. PW-2, too, did not support the case of prosecution in the manner proposed by it at the time of filing of the challan. In these circumstances, the prosecution has failed to prove the offence punishable under Section 471 IPC against accused Hari Om Sharma, Sanjay Gaur and Rajiv.
34. At this stage, a question arises as to whether accused Hari Om can be held liable for forging the draft Ex. PW-15/B since the same bears his handwriting as per handwriting expert report Ex. PW-15/A. It has already been observed that there is no evidence against accused Hari Om that in FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 39/66 what manner he had used the draft and the same (draft) was not recovered from his possession. There are other lacunae too which have already been discussed. Hence, the only incriminating evidence available on this aspect is the handwriting expert report. The Hon'ble Andhra Pradesh High Court in M. Durga Prasad, Spl. Assistant, Syndicate Bank and etc. v. The State of A.P., 2004 Cri.L.J. 242, has cautioned against convicting any person on the basis of handwriting expert report only. The Court has held that:
90. But, it should be borne in mind that the opinion of an expert in writing is the weakest and the least reliable evidence and that it is not at all safe to base conviction upon the opinion of writing expert alone. Courts have refused to act upon the evidence of expert unless it is corroborated by independent evidence. In a catena of decisions, it was ruled by the Apex Court that it would be highly unsafe to convict a person on the sole testimony of an expert. Therefore, the evidence of the expert (P. W. 33) who deposed in court basing on the opinion given by him earlier, cannot be said to be a conclusive proof. It is so more particularly because of the fact that the said evidence is not corroborated by any independent evidence.
In these circumstances, accused Hari Om can not be held liable for commission of offence punishable under Section 465 of IPC even.
35. Accused M.L. Kashyap:
Having deliberated upon the allegations made against accused Hari Om Sharma and his culpability, the Court proceeds to examine the evidence against accused M.L. Kashyap. The case against accused M.L. Kashyap is that he alongwith co-accused persons got the impugned cheque encashed. It is undisputed that accused M.L. Kashyap was maintaining the saving bank account no. 16917 with the Karol Bagh Branch of the Bank of India. Further, during cross examination of PW-4, accused M.L. Kashyap FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 40/66 tendered a letter dated 25/28.11.1988 Mark D written to S.C. Bahri, Branch Manager, Bank of India, Delhi. Through contents of above said letter, it is further admitted case of M.L. Kashyap that he had issued the impugned cheque Ex. PW-15/E and further, he had deposited Rs.1.00 lac in his saving bank account on 27.09.1988.
36. Ld. Counsel for accused M.L. Kashyap firstly argued that an error was committed in framing of the charge and the same was incurable. He submitted that the Court has framed the charge against accused M.L. Kashyap that he had dishonestly induced the bank to deliver Rs.6,75,000/- vide cheque no. 022901 dated 27.09.1988 drawn in favour of M.R. Anand and thereby, committed an offence punishable under Section 420/34 IPC. He submitted that as per the facts and circumstances of the case of prosecution, M.L. Kashyap had deposited Rs.1.00 lac in his account on 27.09.1988. Hence, he must have clear credit balance of more than Rs.1.00 lac on the day on which the impugned cheque of Rs.6,75,000/- was presented to the bank for encashment and it was later on encashed. Hence, the bank was cheated to the tune of Rs.5,75,000/- only instead of Rs. 6,75,000/-.
37. Ld. Counsel for accused Hari Om argued that there was no error in framing of the charge since the impugned cheque was of Rs.6,75,000/- and accused M.L. Kashyap had induced the bank to deliver the amount without having sufficient funds in his saving bank account to encash the cheque.
38. Firstly, Section 215 Cr.P.C. mandates that 'no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regrded at any FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 41/66 stage of the case as material, unless the accused was in fact misled by such error or omission or it had occasioned a failure of justice'.
The Apex Court in State of W.B. v. Laisal Haque, AIR 1989 SC 129, has explained that:
7. [S]ection 215 of the Code provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. There is no material on record on which the High Court could have reached to such a conclusion. We may next refer to Section 221 of the Code which provides by sub-section (1) that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. Sub-s.
(2) thereof provides that if in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-s. (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
9. In the celebrated case of Willie (William) Slaney v. State of Madhya Pradesh, (1955) 2 SCR 1140, Vivian Bose, J. speaking for the Court after an elaborate discussion observed that in judging a question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. That test is clearly fulfilled in the facts and circumstances of the present case. The principles laid down by FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 42/66 that very eminent Judge in Slaney's case have throughout been followed by this Court. See K.C. Mathew v. State of Travancore Cochin, (1955)2 SCR 1057, Gurbachan Singh v. State of Punjab, AIR 1957 SC 623, Eirichh Bhuian v. State of Bihar, 1963 Suppl (2) SCR 328 at pp. 336-37 and State of Maharashtra v. Ramdas Shrinivas Nayak, (1982)2 SCC 463.
It is, further, pertinent to note that this argument has been raised by accused M.L. Kashyap at the stage of final arguments only and no such plea was taken by him during trial of the case. Moreover, from the above said letter written by M.L. Kashyap to Sh. S.C. Bahri and tendered by him during trial as Mark D, it is clear that accused was very well aware of the allegations of the prosecution against him that accused persons including accused M.L. Kashyap had cheated the bank to the tune of Rs.5,75,000/- by getting the impugned cheque of Rs.6,75,000/- encashed without having sufficient funds in saving bank account no. 16917. In these circumstances, it cannot be said, by any stretch of imagination, that accused M.L. Kashyap was misled by such error and it has occasioned a failure of justice.
39. Ld. Counsel for the accused had relied upon the precedent led by the Hon'ble Delhi High Court in Tirath Prakash (deceased) through his widow Smt. Mithlesh Sharma v. State, 92(2001) DLT 613. Considering the above mentioned legal position explained in the case of Laisal Haque (supra) and the facts and circumstances of the present case, precedent relied upon by Ld. Counsel for accused M.L. Kashyap is not applicable in the present case.
40. Ld. Counsel for accused M.L. Kashyap argued that the accused was in fact victim of circumstances. He had given the impugned cheque to the property dealer Rajiv who had shown him the property of M.R. Anand;
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 43/66
however, he later on unauthorisedly misused the cheque in question. He further submitted that FSL report Ex. PW-15/A also contained the analysis to the effect that signatures at the back of the impugned cheque were of accused Rajiv. Hence, it is clear that accused M.L. Kashyap did not present the cheque for encashment and receive the payment of the cheque after its encashment. Moreover, as per the case of prosecution, accused Hari Om Sharma had been shown the beneficiary of the alleged amount since he had got the property documents executed in favour of his wife and accused M.L. Kashyap did not obtain even a single penny out of the withdrawn amount of Rs.6,75,000/-. In fact, accused M.L. Kashyap bore a loss of Rs.1.00 lac which he had deposited with the bank on 27.09.1988. Ld. Counsel further argued that there was no justification as to why Rs. 25,000/- was released to M.R. Anand on superdari when the said amount in fact belonged to M.L. Kashyap.
First of all, the Court has already made observations qua admissibility of handwriting expert report Ex. PW-15/A in the present case. Further, the accused M.L. Kashyap did not bring anything on record by adducing evidence or during cross-examination of prosecution witnesses to discard or disbelieve the testimony of PW-15 or his report. The Apex Court in Murarilal v. State of M.P., AIR 1980 SC 531, has held that:
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 44/66 convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted. [Emphasis supplied] The handwriting expert has given his definite opinion qua the relevant questioned handwriting of accused M.L. Kashyap in his report Ex.
PW-15/A. At this stage, it is to be considered that besides report Ex. PW-15/A, what other relevant evidences are available against M.L. Kashyap. Now, besides the admission of accused M.L. Kashyap that he had deposited Rs.1.00 in his saving bank account on 27.09.1988, one credit voucher Ex. PW-15/F qua cash deposit of Rs.1.00 lac dated 27.09.1988 is available on record. As per report Ex. PW-15/A, the voucher bore the handwriting of accused M.L. Kashyap at point Q 14, 15 and 16. This proves that accused M.L. Kashyap had visited the bank on 27.09.1988 for depositing Rs. 1.00 lac in his saving account no. 16917.
PW-4 stated that he obtained the signature on the front of the cheque and after verifying the signature on the card, he canceled the signature and sent the cheque for payment. Whenever any person draws the cheque, he (drawer) puts only one signature on the face of cheque; while the impugned cheque Ex. PW-15/E bears two signatures of accused M.L. Kashyap at point Q5. The signatures of accused M.L. Kashyap at point Q5 have been verified by PW-15 vide his report Ex. PW-15/A. Presence of two signatures at point Q5 substantiated the version of PW-4 that he obtained the signature on front of the cheque. Above all, accused M.L. FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 45/66 Kashyap did not challenge the above mentioned version of PW-4 during his cross-examination.
41. Now, during cross examination by accused Hari Om Sharma, PW-4 was confronted with his previous statement recorded under Section 161 Cr.P.C., wherein calling of M.L. Kashyap for verification by him (PW-4) had not been so recorded. Ld. Counsel for accused M.L. Kashyap argued that the said version of PW-4 was the material improvement in his previous statement recorded during investigation.
Firstly, perusal of record reveals that PW-4 remained consistent qua his version that he had called M.L. Kashyap for verification when the impugned cheque was presented before him for second cancellation. It is further pertinent to note that accused Hari Om had put one letter dated 12.10.1988 written by Darshan Singh [PW-4] to the Manager, Bank of India, Karol Bagh Branch vide Ex. PW-4/DA. In that letter too, PW-4 had claimed that he called the drawer of the cheque inside and made verification and obtained the signature of the drawer M.L. Kashyap on the face of the cheque.
Even otherwise, so far as argument qua improvement in statement recorded under Section 161 Cr.P.C. is concerned, perusal of previous statement and testimony of PW-4 reveals that this aspect had not been touched upon in the previous statement of PW-4 recorded under Section 161 Cr.P.C. by the investigating officer. In these circumstances, this aspect can only be considered as 'omission' instead of 'improvement'.
42. The Hon'ble Delhi High Court has dealt with the issue of 'omission' in FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 46/66 Kapoor Singh Rana v. State of Delhi, 2006 (1) RCR (Criminal) 943, wherein the Court has held that:
14. [O]bviously, he [Invetigating Officer] did not put this question to the witness and, therefore, the statement under Section 161 Cr.P.C. is lacking in these details. Such omissions as in the present case should not be taken as contradiction. We are fortified in this opinion by the judgment of the Supreme Court in the case of Jaswant Singh v. State of Haryana with Shisha Singh & Ors. v. State of Haryana, 2000(2) RCR(Criminal) 545 : AIR 2000 SC 1833. The relevant part of the judgment reads as under :
"46. Section 161(2) of the Code requires the person making the statements "to answer truly all question relating to such case, put to him by such officer....." It would, therefore, depend on the questions put by the police officer. It is true that a certain statement may now be used under Section 162 to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Previously, the law was as enunciated in Tehsildar Singh v. State of Uttar Pradesh, 1959(2) SCR 875 : AIR 1959 SC 1012 : (1959 Crl. LJ 1231), as "omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box"
47.Now the Explanation to Section 162 provides that an omission to state a fact in the statement may amount to contradiction. However, the explanation makes it clear that the omission must be a significant one and 'otherwise relevant' having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
48.Reading Section 161(2) of the Criminal Procedure Code with the Explanation to Section 162, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case, the Investigating Officer, PW13 was not asked whether he had put question to Gurdeep Kaur asking for details of the injuries inflicted on of the persons who had caused the injuries."
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 47/66
15. The similarity between the above observations and the facts in the present case is apparent. Even in this case the investigating officer was not questioned as to whether he put these questions to PW1. It appears to us that the investigating officer did not put any question relating to the identity of the culprit as the victim herself had given out the same. This explains the omission and the same cannot be looked upon as contradiction. We are unable to discard the testimony of mother of the deceased on this aspect simply because the statement under Section 161 Cr.P.C. has failed to record this part of the sequence of event. [Emphasis supplied] Surprisingly, the said confrontation was put to PW-4 by accused Hari Om Sharma instead of accused M.L. Kashyap. More importantly, accused M.L. Kashyap did not challenge the version of PW-4 to this effect that he had taken the signature of accused M.L. Kashyap at the time of second cancellation. He did not seek any clarification on this aspect from PW-12 (investigating officer) during his cross examination. Moreover, it has already been observed that accused M.L. Kashyap was present in the bank on 27.09.1988 for depositing Rs. 1.00 lac in his account. Hence, considering the observations qua credibility of PW-4 on this aspect coupled with the above mentioned legal position, the omission to state the fact of calling M.L. Kashyap for verification by PW-4 in his previous statement does not amount to contradiction and accused M.L. Kashyap cannot be granted any benefit out of the same.
43. Above all, accused Hari Om Sharma has got himself examined as DW-2, wherein he categorically stated that the impugned cheque was drawn in favour of M.R. Anand or bearer; the person was accompanied by M.L. Kashyap, the account holder in whose saving bank account the FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 48/66 cheque was drawn. At this stage, it is clarified that the testimony of DW-2 has been considered at this stage only due to reason that firstly prosecution shall prove its case on its own. Now, the question is whether statement made by any accused person during his testimony as defence witness can be read against co-accused.
The Hon'ble Delhi High Court in J.D. Aggarwal v. State, 1983 (2) RCR (Criminal) 57, has held that:
30. The question may well arise what use can be made of the evidence led by one accused in his defence when his interest is adverse to his co-accused. In the strict legal sense such evidence would be admissible like any other evidence because the co-accused against whom it is directed has a right to cross-
examine the defence witnesses examined by another accused to shake their credit. There is nothing in the law of evidence to render such evidence inadmissible. in `Taylor on Evidence', para 1430, the law is stated as follows :
"When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony tending to criminate them. The counsel, too, for the other prisoners are entitled in such a case to reply upon his evidence."
31. In Shapurji Sorabji and another v. Emperor a Division Bench of Bombay High Court stated the legal position as under :
"We think it is impossible to say that there is anything in the law of evidence or procedure which renders the statements of witnesses produced by one accused inadmissible against a co- accused, but at the same time there at obvious reasons for receiving such evidence with great caution, and indeed for regarding it with great suspicion, when, as here, the witnesses have little or nothing to say which benefits the person who calls them and appear to be introduced merely with the object of strengthening the case against co-accused. As the learned counsel for appellant I point out, the co-accused is under a FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 49/66 serious disability in such a case. If the witnesses have been examined by the police, as some of them in this case were, he is deprived of the privilege of contradicting them by their former statements. Section 162, Criminal Procedure Code, only applies to prosecution witness. He may also be deprived of the benefit of section 342 of the Code, for, though the Court may give him an opportunity of making a statement about the evidence, that is not obligatory under the terms of sections."
32.This judgment was quoted with approval by Andhra Pradesh High Court in Gupta Sriramulu Naidu and another v. The State.
33.I am in respectful agreement with the foregoing observations. However, I would like to add that it the evidence adduced by a co-accused whose interest is adverse to the other accused tends to implicate the latter, such evidence cannot be used to fill up the lacuna appearing in the evidence led by the prosecution. It is well settled that the prosecution evidence led by the prosecution. It is well settled that the prosecution has to stand on its own legs; it cannot take advantage of the weakness of the defence. Thus the evidence adduced by a co-accused which is of incriminatory nature as against the other accused does not relieve the prosecution of the burden of proving the guilt of the accused beyond reasonable doubt. All the same there can be no apparent objection either in law or in equity to use such evidence to lend assurance as regards the veracity of the prosecution case.
Hence, it is clear from the above mentioned legal position that the testimony of DW-2 can be read against accused M.L. Kashyap.
44. DW-2 was cross examined by accused M.L. Kashyap. Accused M.L. Kashyap had confronted DW-2 with his disclosure statement Ex. PW-6/B wherein it has not been mentioned that M.L. Kashyap was accompanying the bearer of the cheque. However, DW-2 categorically stated that he had FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 50/66 told the police about this fact. At this stage, it is pertinent to note that the disclosure statement of an accused which is inadmissible in evidence would remain inadmissible at every stage. Moreover, DW-2 did not tender or try to use any portion of his disclosure statement Ex. PW-6/B during his testimony as defence witness. Further, besides the above said confrontation with the disclosure statement of accused Hari Om, accused M.L. Kashyap did not seek any clarification/ explanation from DW-2 to challenge his version to the effect that he (M.L. Kashyap) was accompanied with the bearer of the cheque.
45. In these circumstances, it is established beyond reasonable doubt that accused M.L. Kashyap was present in the bank during the process of encashment of the impugned cheque too and he put his signatures on the face of the cheque at the time of second cancellation.
46. Ld. Counsel argued that why the accused M.L. Kashyap would go with the bearer to withdraw an amount from the bank when he has already issued a bearer cheque. This argument in fact goes against accused M.L. Kashyap and other accused persons. If accused M.L. Kashyap had bona fide issued a post-dated cheque Ex. PW-15/E in favour of M.R. Anand and provided it to accused Rajiv, then he must have issued an account payee cheque to avoid any misuse of the same. From the issuance of bearer cheque by accused M.L. Kashyap, it can be further inferred that as soon as accused Hari Om Sharma received an opportunity to defraud the bank through the seat of saving bank ledger keeper, M.L. Kashyap at once issued a bearer cheque so that cheque could be encashed on the same day without leaving any chance of detection as to who had got the cheque encashed. While in case of issuance of an account payee cheque, the FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 51/66 cheque would have taken 2-3 days in clearance of the same and the payee could have been easily traced through his bank account particulars. Moreover, the accused M.L. Kashyap must have knowledge about the relaxed Rules of the Bank Ex. DW-1/A in respect of scrutiny of bearer cheques since he himself was a retired bank officer as per information given about his occupation at the time of opening of impugned account in the card Ex. PW-15/D or through Hari Om Sharma who had been a bank employee. Rule 8.2 mandates 'ordinarily "bearer" cheques should present no difficulties since the bank is discharged if payment of bearer cheque is made to the bearer thereof'.
Further, accused M.L. Kashyap went with the bearer of the cheque so that he could assist him in case any difficulty arose or query raised qua withdrawal of huge amount from the account. And, it so happened when PW-4 enquired from M.L. Kashyap qua withdrawal of huge amount.
47. Ld. Counsel for accused M.L. Kashyap stated that no involvement of accused M.L. Kashyap was shown in the disclosure statement of accused Sanjay Gaur, whose statement had been recorded by the investigating officer on 01.10.1988 at first instance. It has already observed that disclosure statement of accused is not admissible in evidence. Moreover, considering the observations made in the preceding paragraph qua the role played by accused M.L. Kashyap, this aspect becomes immaterial.
48. Now, the question arises: what might be the motive of accused M.L. Kashyap for participating in the impugned cheating? Accused M.L. Kashyap was known to accused Hari Om Sharma since his childhood as per account opening card Ex. PW-15/D. Accused Hari Om Sharma had FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 52/66 introduced M.L. Kashyap while opening the impugned account no. 16917. Admittedly, he was also known to M.R. Anand qua deal of the property. Further, as per balancing statement of relevant ledger no. 40 Ex. PW-14/A conducted on 15.09.1988, accused M.L. Kashyap had credit balance of Rs. 109.39 only. When any person is maintaining such a low balance (Rs. 109.39) in his account, then why he would issue a post dated cheque to any property dealer for such a huge amount of Rs.6,75,000/-. M.L. Kashyap had taken a stand through his letter mark D that the property dealer had given assurance and undertaking to him that the said cheque would only be shown to M.R. Anand and the same would not be presented for encashment in case the deal was not materialised and till he managed to deposit the amount in his account equivalent to the amount mentioned in the cheque. But, M.L. Kashyap did not lead any evidence to substantiate his version made in letter Mark D and in his statement recorded under Section 313 Cr.P.C. that he wished to purchase the property from M.R. Anand. The observation of the Apex Court in the case of Sawal Das (supra) is applicable on the case of M.L. Kashyap too. Further, during cross examination of DW-2, M.L. Kashyap changed his stand of having provided the impugned cheque to Rajiv. He put a suggestion to DW-2 that he (Hari Om) cheated him by obtaining the cheque on the pretext of merely showing it to M.R. Anand for effecting some land deal. At this stage, M.L. Kashyap claimed that he gave this cheque to Hari Om. This suggestion indicates not only the change in stand of M.L. Kashyap but also his admission in respect of the prior conversation/ dealing between him and accused Hari Om.
Even if, it is accepted, for the sake of arguments, that he was not involved in the impugned incident. By drawing a cheque of Rs.6,75,000/- without FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 53/66 having equivalent amount in his saving bank account, he had tried to deceive M.R. Anand to act in the manner which he might not have done so, if he had been known to the fact of insufficiency of the funds in the saving bank account of accused M.L. Kashyap.
Accused persons might have got deposited Rs. 1 lakh in the account of M.L. Kashyap through him so that he could make himself available in the bank on the pretext of depositing Rs. 1 lac in his bank account; simultaneously, taking care of circumstance that the impugned cheque was not dishonoured on the ground of signature of drawer differed or why such heavy amount was withdrawn and later on, he could disassociate himself from the commission of cheating against the bank saying that he did not know anything about encashment of the impugned cheque.
So far as beneficiary aspect of transaction of the withdrawal from the bank is concerned, accused M.L. Kashyap might have received his profit/ commission out of the amount received after encashment of the impugned cheque.
49. Although Ld. Counsel for accused M.L. Kashyap has contended that Rs.25,000/- must have been released to accused M.L. Kashyap instead of accused M.R. Anand, yet this aspect goes against accused M.L. Kashyap for the following reasons. If M.L. Kashyap was genuinely having claim over those Rs.25,000/-, then he must have challenged the order of the Court for release of Rs.25,000/- to M.R. Anand and when he did not challenge the said order and remained silent at that moment, this leads to infer that he was not having any contribution in the amount of Rs.1.00 lac deposited on 27.09.1988 in his account through him. The above FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 54/66 observations force the Court to infer that accused M.L. Kashyap was in agreement with accused Hari Om Sharma and the persons who were involved in presentation of the cheque, receipt of payment of the cheque and handing over the amount of consideration for purchase of property to M.R. Anand.
50. Accused Sanjay Gaur:
Ld. Counsel for accused M.L. Kashyap argued that at first instance, investigating officer recorded the disclosure statement of accused Sanjay Gaur on 01.10.1988, wherein accused Sanjay disclosed about the involvement of accused Rajiv in the impugned commission of offence and thereafter, accused Rajiv and other accused persons were arrested; the specimen handwriting of accused Rajiv was obtained by the investigating officer and same was found matched by the handwriting expert PW-15 with the questioned handwriting at the back of the impugned cheque Ex. PW-15/E; hence, such portion of disclosure statement of accused Sanjay Gaur stating about the involvement of accused Rajiv which led to the discovery of fact of his (Rajiv) involvement should be admissible under Section 27 of the Evidence Act.
51. Ld. Counsel for accused Sanjay Gaur argued that no incriminating evidence was available on record against accused. He relied upon a precedent: Hari Charan Kurmi v. State, AIR 1964 SC 1184, in support of his arguments.
52. Firstly, in his disclosure statement Ex. PW-4/A, accused Sanjay did not specifically disclose about the role played by accused Rajiv in getting the cheque encashed. He had merely disclosed about the presence of accused FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 55/66 Rajiv too in the bank at the time of encashment of the cheque.
The Apex Court in Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355, has explained the applicability of Section 27 of the Evidence Act that:
21. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him.
However, to the aforesaid rule of Sections 25 and 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing that when any fact is deposed to is discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence At.
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 56/66
Applying the above mentioned legal position in the present case, the disclosure statement of accused Sanjay Gaur did not lead to discovery of any fact or in other words, discovery of any object etc. It has only led to at the most discovery of fact of involvement of accused Rajiv in the commission of impugned offence.
The Apex Court in H.P. Administration v. Om Prakesh, AIR 1975 SC 975, has held that:
12. Thereafter on the information furnished by the accused that he had purchased the weapon from Ganga Singh P. W. 11 and that he would take them to him, they went to the thari of P. W. 11 where the accused pointed him out to them. It is contented that the information given by the accused that he purchased the dagger from P. W. 11 followed by his leading the police to his thari and pointing him out is inadmissible under Section 27 of the Evidence Act. In our view there is force in this contention.
A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case? Not the dagger but the dagger hid under the stone which is not known to the police. (See Pulukuri Kottaya v. King Emperor, 74 Ind App 65. But thereafter can it be said that the information furnished by the accused that he purchased the dagger from P. W. 11 led to a fact discovered when the accused took the police to the thari of P. W. 11 and pointed him out. A single Bench of the Madras High Court in Public Prosecutor v. India China Lingiah, AIR 1954 Mad 433, and In re Vellingiri, AIR 1950 Mad 613, seems to have taken the view that the information by an accused leading to the discovered of a witness to whom he had given stolen articles is a discovery of a fact with in the meaning of Section 27. In Emperor v. Ramanuja Ayyanger, AIR 1935 Mad 528 a full Bench of three Judges by a majority held that the statement of the accused "I purchased the FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 57/66 mattress from this shop and it was this Woman (another witness) that carried the mattress" as proved by the witness who visited him with the police was admissible because the word 'fact' is not restricted to some thing which can be exhibited as a material object. This judgment was before Pulukuri Kattaya's case when as far as the Presidency of Madras was concerned law laid down by the Full Bench of the Court, In Re Athappa Goundan, case prevailed. It held that where the accused's statement connects the fact discovered with the offence and makes it relevant, even though the statement amounts to confession of the offence. it must be admitted because it is that that has led directly to the discovery. This view was overruled by the Privy Council in Pulukari Kottaya's case and this Court had approved the Privy Council case in Ramkishan Mithanlal Sharma v. The State of Bombay, (1955) 1 SCR 903.
13. In the Full Bench Judgment of Seven Judges in Sukhan v. The Crown, ILR 10 Lah 283 which was approved by the Privy Council in Pulukuri Kotaya's case, Shaid Lal C.J, as he then was speaking for the majority pointed out that the expression 'fact' as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefor that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the cause and effect.' That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which in not known to the police is what is discovered by the information and lends assurance that the information was FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 58/66 true. No witness with whom some material fact, such as the weapon if murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible. But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to P. W. 11 and pointed him out and as corroborated by P. W. 11 himself would be asmissible under Section 8 of the Evidence Act as conduct of the accused. [Emphasis supplied] Hence, no portion of disclosure statement of accused Sanjay Gaur is admissible in evidence. No other incriminating evidence is available on record against accused Sanjay Gaur. Hence, the prosecution has failed to prove its case against accused Sanjay Gaur.
53. Accused Rajiv:
Ld. APP argued that the handwriting expert (PW-15) has tendered his report as Ex. PW-15/A vide which it is clear that accused Rajiv had signed at the back of the impugned cheque at the time of its presentation, and of receipt of the payment after clearance. Ld. APP further argued that accused refused to participate in TIP proceeding too.
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 59/66
Ld. Counsel for the accused argued that firstly, PW-1 who was the cashier on the impugned day i.e. 27.09.1988 did not identify the receiver of the cash and the person who was in the possession of token and put signature at the back of the cheque. Further, no prosecution witness deposed about the presence of accused Rajiv in the bank at the time of impugned process of encashment of cheque Ex. PW-15/E. He further contended that PW-12 (investigating officer) also did not support the case of prosecution qua the role played by accused Rajiv. He relied upon two precedents: L.K. Advani v. Central Bureau of Investigation, 1997 (41) DRJ 274 and Rakesh Kumar v. State, 109 (2004) DLT 130.
54. Firstly, it is true that as per record, accused refused to participate in TIP proceedings. But the TIP proceedings were not tendered in evidence. Moreover, it is trite law that the witness is required to identify the accused in the Court and identification of accused during TIP proceedings cannot be considered over and above the testimony of witness before the Court.
The Apex Court in Mulla and Anr. V. State of Uttar Pradesh, 2010 II AD (SC) 445, has held that:
20. Now, let us consider the arguments of the learned amicus curiae on the delay in conducting the test identification parade. The evidence of test identification is admissible under Section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court.
There is no provision in the Cr. P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry or the trial. The fact that a particular witness has been able to identify the accused at an identification FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 60/66 parade is only a circumstance corroborative of the identification in Court.
Had the case of prosecution been that any prosecution witness identified accused Rajiv as one of the accused persons and accused had earlier refused to participate in TIP proceedings; then adverse inference would have been drawn against him (Rajiv) for his refusal to participate in TIP proceedings. But it is not so. No prosecution witness had identified accused Rajiv as one of the accused persons involved in the process of encashment of the impugned cheque. Hence, adverse inference can not be drawn against accused Rajiv on this aspect.
55. Further, accused M.L. Kashyap took the stand that the impugned cheque had been taken by accused Rajiv on the pretext of showing the same to M.R. Anand. He (M.L. Kashyap) has made a statement to this effect at the time of recording of his statement under Section 313 Cr.P.C. It is pertinent to note that statement of accused recorded under Section 313 Cr.P.C. could not be used against co-accused.
The Hon'ble Himachal Pradesh High Court in Raj Paul v. State of Himachal Pradesh, 1985 Cri. L. J. 1501, has held that:
16. In 1973 Cr. L.J. 1761, The Public Prosecutor v. B. Rama Murti, a Division Bench of the Andhra Pradesh High Court also considered the value and relevancy of a statement of an accused recorded under section 342 Cr.P.C. for being used against another co-accused, and it was held that such a statement given under section 342 Cr.P.C. cannot be used against a co-accused.
17. It may be stated that the purpose of recording a statement under section 342 (now section 313) is only to get the explanation of the concerned accused regarding the FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 61/66 incriminating circumstances which are sought to be used against him. The accused, whose statement under section 342 (now section 313) is recorded, is not to explain the incriminating circumstances which may be found against his co-accused. A statement under section 313 Cr.P.C. is always recorded without oath and a co-accused can have no chance to cross-examine the person making the statement. In these circumstances such a statement cannot be used against a co-
accused.
56. Further, it has already been held that no portion of disclosure statement of accused Sanjay Gaur is admissible under Section 27 of the Evidence Act. Further, PW-12 during his cross examination denied the suggestion that accused Raju presented the cheque in question to the bank and he signed the cheque in question on its back side at the time of its presentation. When the investigating officer himself denies the role of accused in the manner alleged by the prosecution, then it becomes fatal to the case of prosecution against the said accused person. In these circumstances, only one incriminating evidence remains available on record against accused Rajiv, which is the handwriting expert report.
57. PW-15 deposed that the specimen handwriting gave ground for suspecting that the writer of the specimen Marked S39 to S41, which was Ex. PW-15/H1 to PW-15/H3 being the person responsible for writing the questioned signatures Marked Q6 on the back of Ex. PW-15/E. While PW-15 in his report Ex. PW-15/A had given a sort of conclusive finding qua specimen handwriting and questioned handwriting of accused Hari Om Sharma and M.L. Kashyap, but he had shown only the strong suspicion qua specimen handwriting and questioned handwriting of accused Rajiv. During his cross examination, he reiterated that he could not say definitely that Q6 on Ex. PW-15/E was written by accused Sh.
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 62/66
Rajiv Kumar. Hence, the case against accused Rajiv qua handwriting expert opinion becomes different from case against accused Hari Om and M.L. Kashyap. No other material available against him except the report Ex. PW-15/A and further, there is only grave suspicion shown by the expert (PW-15) in his report.
58. At this stage, the observations of the Hon'ble Andhra Pradesh Court in the case of M. Durga Prasad (supra) is required to be applied. Considering the above mentioned observations on factual aspects of the case in the light of legal position, when there is availability of only one evidence i.e. handwriting expert opinion, which too suggested the strong suspicion instead of conclusive opinion, against accused Rajiv; the report of handwriting expert could not become sufficient evidence to prove the guilt of accused Rajiv beyond reasonable doubt. Hence, the prosecution has failed to prove its case against accused Rajiv.
59. Applicability of Section 34:
Lastly, it is required to examine the applicability of Section 34 IPC in the present case. The Hon'ble Supreme Court in Hari Ram v. State of U.P., 2004 (3) RCR (Criminal) 805, has explained the meaning of 'common intention' that:
9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 63/66 inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
10. As it originally stood the Section 34 was in the following terms :
"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
60. In the present case, this has already been concluded that accused Hari Om Sharma and M.L. Kashyap played their respective roles in commission of cheating against the bank. The prosecution could not establish the involvement of accused Rajiv and Sanjay Gaur in the present case beyond reasonable doubt. But it can be safely concluded without any doubt that one other person besides Hari Om and M.L. Kashyap was also involved in the alleged cheating against the bank; that person had presented the cheque and received the payment after encashment. The different role were played by the accused persons: M.L. Kashyap drew the bearer cheque of Rs.
FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 64/66
6,75,000 without having sufficient balance in his saving bank account, made himself available in the bank on the pretext of depositing Rs. 1 lakh, explained the need of withdrawal of money to PW-4 and signed the cheque again on its front side at instance of PW-4. Hari Om Sharma, being a bank employee and working as a frontline dealing clerk in the work of encashment of cheques, facilitated the encashment of the impugned cheque by posting the same in ledger while there was no sufficient funds in the respective account and forwarded the same to cancellation officer for encashment, he used the cheque amount for payment of consideration of the purchase of property from M.R. Anand and subsequently, Rs. 6.00 lacs were produced by M.R. Anand. Both M.L. Kashyap and Hari Om were known to each other since childhood. Another person, whose identity could not be established, presented the cheque and received its payment. From the above mentioned, unambiguous inference can be drawn that the accused persons had prior meeting of mind to cheat the bank to the tune of Rs. 5,75,000 by way of encahsment of cheque through saving bank account no. 16917; they acted in furtherance of their common intention and played their respective roles to achieve their goal.
Although during trial, the accused Hari Om and M.L. Kashyap took such stand/s which give/s an impression that they had interests opposite to each other, yet this might have been the tactics on their part to refute the allegations of 'common intention' to commit cheating against the bank. In these circumstances, it is proved beyond reasonable doubt that accused Hari Om and M.L. Kashyap in furtherance of their common intention cheated Karol Bagh Branch of Bank of India to the tune of Rs. 5,75,000.
61. In view of above discussion, accused Hari Om Sharma and M.L. FIR No.: 426/88 PS: Karol Bagh State v. Sanjay Gaur etc. 65/66 Kashyap are held guilty for the offence punishable under Section 420 read with Section 34 of the Indian Penal Code. Accused Sanjay Gaur and Rajiv are acquitted of the charges alleged against them.
Announced in open Court Naveen Gupta
(1+4 Copies) MM/Delhi/21.07.2012
FIR No.: 426/88
PS: Karol Bagh
State v. Sanjay Gaur etc. 66/66