Delhi District Court
In Re: State vs Shashi Dhar on 15 March, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS SHASHI DHAR
F.I.R. No: 516/94
U/s 381/408/420/467/471 IPC
P.S. Defence Colony
Date of Institution of Case : 05.07.1996
Judgment Reserved for : 05.03.2012
Date of Judgment : 15.03.2012
JUDGMENT:
(a) The serial no. of the case : 228/2/96
(b)The date of commission of offence :03.07.1994 to 16.09.1994
(c) The name of complainant : Rtd. Lt. General Sushil
Kumar, R/o C30, Defence
Colony, New Delhi
(d) The name, parentage, of accused : Shashi Dharan S/o Sh.
K.C. Nayyar, R/o 1123/10,
Govind Puri, New Delhi.
Present Address : As above
FIR No. 516/94 State Vs. Shashi Dharan 1/39
(e) The offence complained of :U/s
381/408/420/467/471 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted u/s
381/408/471 IPC
(h) The date of such order : 15.03.2012
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that from 03.07.1994 to 16.09.1994 accused Shashi Dharan being the Clerk of the complainant in his premises at C30, Defence Colony, committed theft by stealing a signed cheque no. 207702 of Canara Bank of account no. 66244 of the complainant from the possession of the complainant. Further, in between 03.07.1994 to 16.09.1994 he being the Clerk of the complainant and in such capacity was entrusted with the property i.e. document of the trust on unsigned cheques of the trust belonging to the complainant which were kept at C30, Defence Colony and misappropriated them by presenting cheque no. 207702 of Canara Bank of account no. 66244 of the complainant for his own use and without the consent of the complainant and thus he committed criminal breach of trust in respect to the above said cheque. Also, in between 03.07.1994 to 16.09.1994 he cheated the complainant by mentioning his own name i.e. Filling his name in the Payee Column on the signed cheque FIR No. 516/94 State Vs. Shashi Dharan 2/39 no. 207702 dated 12.07.1994 of Canara Bank of account no. 66244 of the complainant and filled the amount of Rs.2000/ and after presenting the cheque withdrew the amount of the cheque by depositing it in his account no.12629 at State Bank of Patiala, Nehru Place. Furthermore, on 12.07.1994 at C30, Defence Colony he fraudulently prepared the signed cheque no. 207702 of Canara Bank, Lajpat Nagar of account no. 66244 of the complainant and he had allegedly issued the cheque in his favour from the complainant fraudulently and with dishonestly intention draw Rs.52000/ from the account of the complainant and on or about 12.07.1994 he fraudulently or dishonestly as used as genuine a signed cheque no. 207702 of Canara Bank, Lajpat Nagar of account no. 66244 of complainant which he knew at the time when used it to be a forged document and further by doing so he withdrew the cash of Rs.52,000/ and thus thereby the accused committed offences punishable u/s 408/381/420/467/471 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide order dated 04.09.2001, charge u/s 408/381/420/467/471 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined eight witnesses. After the PE was closed, the statement of the accused was FIR No. 516/94 State Vs. Shashi Dharan 3/39 recorded wherein he claimed himself to be innocent and examined two witnesses including himself in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 Lieutenant General Sushil Kumar (retired) deposed that in the year 1992, he had formed a trust by the name of Sadbhawna Trust in the month of September which was registered with the Income Tax authority. It was being run from C30 Defence Colony. He deposed that he was Chief trustee of the trust and Dr. Brig. P.K. Gopal (retired) was also a trustee. He deposed that Mr. Shashi Dharan accused (correctly identified) was employed as a clerk in the office of the trust w.e.f. 1.4.1994. Before this accused was employed in Shatrujeet Enterprises (P) Ltd. at C30 Defence Colony, itself. He deposed that It was a Charitable trust for the aim of protection and growth of under developed persons including children, women etc. He further deposed that the fund used to come from UNICEF under his control and that of Sh. P.K. Gopal. He further deposed that he was the authorized person to sign the cheque for payments. He further deposed that the cheques were filled either by him or by Mr. P.K. Gopal and signatures on the cheques were made only by him. He further deposed that counterfile of cheque were also filled by him only. He further deposed that the account of trust was with the Canara Bank, Lajpat Nagar Branch, number of account was 66244. He further deposed that cheque books were normally kept FIR No. 516/94 State Vs. Shashi Dharan 4/39 with him. He further deposed that on 03.07.1994 he went to U.K. to visit his daughter and before going he had cleared dues of all sorts including a/c of accused Shashi Dharan upto 2nd July. He further deposed that he had left about 7 cheques signed contained in two separate cheque books to P.K. Gopal for making further payments in his absence. He further deposed that the five cheques were of one cheque book and two were of 2nd cheque book of the a/c no. 66244. He further deposed that when he returned in September, 1994 Mr. P.K. Gopal returned the cheque books to him and informed that he had only used one cheque in his absence. He further deposed that on checking of the accounts, he noticed a withdrawal of Rs.52,000/ from the 2nd cheque book. He further deposed that he got suspicious that such a heavy withdrawal was never carried by them. He further deposed that he also inquired from Sh. P.K. Gopal if he had made withdrawal of Rs.52,000/ to which he said no. He further deposed that then he contacted Canara Bank where he found a cheque had been encashed in the name of Sh. Shashi Dharan which was limited in the a/c of accused Shashi Dharan, State Bank of Patiala, Nehru Place. The cheque is Ex. PW1/A which bears his signatures portioned in circle A and where as the amount and name of payee is not filled by him. He further deposed that as service of accused Shashi Dharan was already terminated in July, 1994, his dues were also cleared and the cheques Ex. PW1/A was never issued for payment to accused which he wrongly and dishonestly got encashed in his a/c and misappropriated the money of Trust.
FIR No. 516/94 State Vs. Shashi Dharan 5/39 He further deposed that the Cheque Ex. PW1/A was never handed over by him to accused nor by Sh. P.K. Gopal. He further deposed that then he lodged a complaint i.e. Ex. PW1/B with PS Defence Colony giving all details of the cheque which was misappropriated by the accused. He further deposed that he has also brought the original letter of termination of service of accused i.e. Ex. PW1/C. The letter of appointment is Ex. PW1/D. The copy of the entry of his passbook is Ex. PW1/E and final statement of a/c, settlement of salary and other dues of accused is Ex. PW1/F. He further deposed that police conducted investigation in the matter and also obtained his signatures as specimen i.e. Ex. PW1/G.
5. PW2 Br. P.K. Gopal deposed that he was trustee of Sadbhawna Trust of which Chief Trustee was Lieutenant General Sushil Kumar. He deposed that accused Shashi was employed in office of Trust for official clerical job on 01.04.1994. He deposed that before this appointment he was working in Satrujeet Enterprises Pvt. Ltd. which was also run by them and he was there for one and half years and he was drawing pay of Rs.2000/ per month and in Sadbhawna Trust he was joined a pay of RS.2500/ per month. He deposed that On 03.07.1994 Lieutenant General Sushil Kumar had to go Abroad. He deposed that as he was signing authority of the cheuqes, he got seven cheques signed from him for making payments during his absence. Out of these five were the last cheques of the current cheque book and two were first once from new cheque FIR No. 516/94 State Vs. Shashi Dharan 6/39 book. He deposed that when those cheques were signed by Lieutenant General Sushil Kumar, accused Shashi was present. He deposed that he placed two cheque books in a file cover and along with other documents of the trust and took them to his residence number B12, Greater KailashI, and he placed said cheques in a steel almirah where from they were operating trust. He deposed that on 31.07.1994 service of accused Shashi Dharan were terminated by him and final settlement of accounts were also done. Termination letter is Ex. PW1/C. Accounts were settled vide document Ex. PW1/F. Appointment letter of the accused is Ex. PW1/D. He deposed that in the month of July, he did not issue any cheuqe to anyone. He deposed that on 16.09.1994 Lieutenant General Sushil Kumar returned from Abroad and he handed over all the documents to him. He deposed that on 28.09.1994 he went to U.K. and on 18.10.1994 he received a letter from Lieutenant Gerneral Sushil Kumar regarding if he had issued any cheque of Rs.52,000/ to any person and he informed number of cheque was 207702 which he had found debited from the account of Canara Bank of the Turst and it was informed that it was second cheque of the new cheque book and where as the first cheque of that book was lying unused in the cheque book. He deposed that no entry was found in the record slip of the cheque mentioned above. He deposed that he told General Sushil Kumar that he had not issued said cheque of Rs.52,000/ to anyone. He deposed that matter was reported to police and he had informed through facts on 27.10.1994 FIR No. 516/94 State Vs. Shashi Dharan 7/39 regarding his position i.e. Ex. PW2/A. He deposed that when he came back on 13.12.1994 he came to know that case was registered against accused Shashi Dhar (correctly identified) and so it is concluded that cheque was stolen from his steel almirah.
6. During his cross examination he stated that accused Shashi Dhar came for job to them in Nov. 1992 and he knew him since 1992. He stated that no advertisement was given for the appointment of the accused in the service of Trust. He stated that accused was working as typist in a shop near Savitri Cinema where he used to go for typing work to be done and from where he came in contact of accused. He stated that he has documentary proof of accused being appointed in Satrujeet Enterprises but right now he has not brought said document and only after checking his record he can bring the same. He denied the suggestion that accused was appointed for a salary of Rs. 3000/ in Satrujeet Enterprises. He denied the suggestion that salary was fixed as Rs. 3000/ out of which was Rs. 2000/ was being paid and Rs. 1000/ was being deducted for the benefit of employees/accused. He stated that he does not remember if any appointment letter was issued for appointment of accused in Satrujeet Enterprises. He stated that accused was paid through self cheque for his salary. He stated that he can produce the record of the payment of salary to the accused. The receipt of salary payment are Ex. PW2/D1 to PW2/D5. He stated FIR No. 516/94 State Vs. Shashi Dharan 8/39 that they had cleared all dues of accused from Satrujeet Enterprises before his appointment in Sadbhawana Trust. He denied the suggestion that cheque of Rs. 52000/ was issued to the accused on settlement of dues of his services from Satrujeet Enterprises. He stated that Mr. General Sushil Kumar left for abroad on 3.7.1994. He denied the suggestion that accused has been falsely implicated in this case on account of his dues, which were not cleared or that accused was demanding his legitimate dues and on account of enmity in the present case. He stated that contents of letter Ex. PW2/A are correct. He denied the suggestion that blank cheque were not signed on 12.7.1994 for making payments by General Sushil Kumar whereas those cheques were signed in early July. He stated that contents written in the letter Ex. PW2/A are incorrect regarding the date. He stated that he does not remember exact date of getting cheques signed from General Sushil Kumar. He voluntarily stated that it has to be 3.7.1994. He admitted that on 31.7.1994 General Sushil Kumar was not in India. He stated that he does not remember, if any meeting of Trustee of the Trust took place on 31.7.1994. He admitted that on 20.10.1994, he was out of India. He stated that he does not know if any meeting of the Trust took place on that day as he was out of India. He stated that he had not checked the balance in the account of trust when General Sushil Kumar left for abroad. He stated that he had not got balance of account of trust checked when General Sushil Kumar returned to India. He stated that he also himself did not check balance of account of trust, FIR No. 516/94 State Vs. Shashi Dharan 9/39 when he left for UK. He denied the suggestion that he had kept secret from General Sushil Kumar for he had issued cheque to the accused. He stated that accused continued to work in their office upto 31.7.1994. He denied the suggestion that he was deposing falsely. He stated that when he returned cheque book to General Sushil Kumar, he informed him that only one cheque was issued on 14.9.1994 for payment to M/s Composite. He denied the suggestion that cheque was returned by me on 12.7.1994. He stated that on 1.7.1994 balance of Rs. 1685130/ was in the bank of Sadbhawna Trust account. He denied the suggestion that he had issued cheque to accused from their office at Greater Kailash. He denied the suggestion that he had ever issued cheque of Rs.52,000/ to the accused and got the receipt of the same from him. He stated that payment as shown in final statement of accused Ex. PW1/F was made in cash to accused, but there is no separate receipt except this letter Ex. PW1/F for showing payment. He denied the suggestion that he did not pay any cash to the accused as shown in EX. PW1/F. He stated that account statement Ex. PW1/F was prepared by him and signed by accused at point A in its acknowledgment. He denied the suggestion that amount shown in Ex .PW1/F was to be paid by cheque for which no payment was done by him. He denied the suggestion that deliberately date and number of cheque are left as blank. He denied the suggestion that cheque of Rs.52,000/ was issued to accused with regard to settlement of dues of both services done by accused in Sadbhawna Trust and FIR No. 516/94 State Vs. Shashi Dharan 10/39 Satrujeet Enterprises. He denied the suggestion that cheque was given to accused by him when his wife was also present with him. He stated that all the cheques were used to be written by General Sushil Kumar or by him, but signatures were only done by General Sushil Kumar. He voluntarily stated that he never prepared cheque of Rs.52,000/ to the accused. He admitted that accused came to him even on 01.08.1994 for settlement of his dues. He stated that they did not have enough work for the accused so they terminated his services. He admitted that that service of accused were terminated in the absence of General Sushil Kumar. General Sushil Kumar knew about the termination of services of accused as it was already decided. He denied the suggestion that he was deposing falsely.
7. PW3 HC Shri Pal Singh deposed that on 07.04.1995 he was posted as MHCM at PS Defence Colony and on that day on the instruction of the IO/SI Dinesh Kumar he handed over the documents pertaining to the present case to Ct. Basant Ram vide RC No. 3/21. He deposed that Ct. Basant Ram after depositing the documents in the FSL Malviya Nagar came back to PS and handed over to him one copy of RC. He deposed that IO recorded his statement.
8. During his cross examination he stated that he cannot tell the contents of the document. He stated that he does not remember whether the documents FIR No. 516/94 State Vs. Shashi Dharan 11/39 were sealed or not.
9. PW3 (in fact PW4) ASI Singh Raj deposed that on 08.11.1994 at about 5.10 pm while he was working as DO at PS Defence Colony, on receipt of rukka through SI Dinesh Kumar he recorded FIR No. 516/94 vide Ex. PW3/A.
10. PW4 (in fact PW5) ASI Sri Pal Singh deposed that on 07.04.1995 he was posted as MHCM at PS Defence Colony and on that day SI Dinesh Kumar along with Ct. Basant Kumar came to him and handed over some documents relating to this case to him. He deposed that he sent the same documents to CFSL, Malviya Nagar. He deposed that the case was pending vide RC No. 3/21, through Ct. Basant Ram and after depositing the same, Ct. Basant Ram handed over the receipt of the documents to him and he handed over the same to the IO of this case. (In fact it seems that deposition of police witness Sri Pal Singh has been recorded twice in the matter one as PW3 on 25.09.2003 and one as PW4 on 24.01.2007.
11. PW4 (in fact PW6) Harsh Vardhan deposed that he is M.Sc. Physics and joined FSL Haryana in March, 1982 and then acquired Diploma in Documents Examination which was one and half years course from ICFS(NOw renamed as LNIP, Institute of Criminology and Forensic Science). M.H.A. Government of FIR No. 516/94 State Vs. Shashi Dharan 12/39 India and presently situated in Sector 3, Rohini. He deposed that he was on deputation to FSL Delhi as Sr. Scientific Officer (DOC) from 3.11.1995 to 13.11.2001. He deposed that the documents of this case were forwarded by SHO PS Defence Colony vide memo no. 719/SHO/DC and Nil dated 05.04.1995 and 01.02.1996 received in his division on 07.04.1995 and 01.02.1996. He further deposed that it has not been possible to fix the authorship of Q1 to Q3 in comparison with S1 to S15 and A1 in the absence of further standards writing of the concerned persons. He further deposed that his report in this regard is Ex. PW4/A.
12. PW4 (in fact PW7) Birendra Kandulna, Manager, State Bank of Patiala deposed that he had brought record pertaining to the present case which was an account opening form of one Shashi Dhar i.e. Ex. PW4/A. He further deposed that he has also brought statement of account pertaining to the saving account of Shashi Dharan i.e. Ex. PW4/B. He further deposed that the certified copy of statement of account of accused Shashi Dharan is Ex. PW4/C. He further deposed that the accused has closed his account on 30.9.2005 to this effect that bank has issued a certificate I.e. Ex. PW4/D.
13. PW 6 (in fact PW8) Inspector Dinesh Kumar deposed that on 20.10.1994 he was posted at PS Defence Colony as SI and on that day, complainant came FIR No. 516/94 State Vs. Shashi Dharan 13/39 to PS and gave a written complaint to SHO regarding the theft of signed cheque, the complaint was given to him for inquiry. He deposed that he made initial inquiry and on 08.11.1994 at about 5.10 pm, he made endorsement on the complaint i.e. Ex.PW6/A. He deposed that he got registered the FIR. He deposed that on 11.11.1994, he went to Canara Bank, Lajpat Nagar where he met the Manager of the said bank and inquired about the complainant's trust account i.e. Sadbhawna Trust, C30, Defence Colony bearing account no. 66244. He deposed that he gave a notice u/s 91 Cr.P.C. to the Manager to produce the cheque bearing no. 207702 who produced the original cheque bearing no. 207702, A/c no. 66244 of Sadbhawana Trust and also produced an attested copy of Pass sheet relating to transaction of cheque bearing no. 207702, A/c no. 66244. He deposed that he seized both the above said documents vide siezure memo Ex.PW6/B. He deposed that in the first week of December 1994, he gave notice u/s 91 Cr.P.C to the accused's Bank i.e. State Bank of Patiala, Nehru Place, New Delhi to produce the account copy of ledger sheet relating to transaction of accused's account. He deposed that on 09.12.1994, he received a letter from State Bank of Patiala, Nehru Place through post along with a letter enclosed with the copy of ledger sheet relating to accused's account i.e. transaction on 18.07.1994, copy of the same is Ex.PW6/C. He deposed that on 28.01.1995, he arrested the accused (correctly identified). He deposed that he has not taken the personal search of the accused as the accused was on FIR No. 516/94 State Vs. Shashi Dharan 14/39 anticipatory bail. He deposed that he took specimen signature of the accused i.e. Ex.PW1/G and also took specimen name in capital letter of the accused in four pages i.e. Ex.PW6/D. He deposed that he took specimen writing in words of the accused in five pages i.e. Ex.PW6/E. He deposed that he also collected specimen amount in figures in four pages i.e. Ex.PW6/F. He deposed that he also collected the admitted hand writing of the accused i.e. Ex.PW6/G. He deposed that he sent all the specimens of the accused along with cheque i.e. Ex.PW1/A to FSL Laboratory Malviya Nagar through Ct. Basata Ram and after obtaining the result from FSL i.e. Ex.PW4/A, he filed the charge sheet in the Court.
14. During his cross examination he stated that he recorded the statement of P.K. Gopal before sending the documents to FSL. He stated that he had not put any question to FSL regarding the date as appearing on Ex.PW1/A. He stated that he had not checked the counterfoil of the cheque. He stated that he did not obtain the specimen signatures of P.K. Gopal. He stated that the allegations against the accused were that he had stolen the blank signed cheque from the complainant. He admitted that in the FSL report it could not be held that the hand writing matched with that of the accused. He stated that he did not verify the complainant's claim that he had gone out of India during the relevant period. He admitted that he did not collect the photocopy of his passport or tickets etc from FIR No. 516/94 State Vs. Shashi Dharan 15/39 him. He admitted that he did not prepare the site plan as to the place where the cheque was kept by the complainant. He denied the suggestion that he was deposing falsely or that the accused has been falsely implicated at the instance of the complainant. He denied the suggestion that the accused did not steal/misappropriate/commit breach of trust of the cheque in question.
15. This so far is the prosecution evidence in the matter. The accused in his defence examined his wife as DW1 and himself as DW2.
16. DW 1 Smt. Pushpa Nair deposed that she knew about this case against Mr. Shashi Dharan Nair. She deposed that the cheque in question was given to Mr. Shashi Dharan by Brg. P.K. Gopal. She deposed that the said cheque was handed over to Mr. Shashi Dharan in her presence at Pamposh Enclave.
17. During her cross examination by Ld. APP for the State she admitted that she was second wife of accused Shashi Dharan. She stated that she got married to him in March 1994. She stated that the said cheque was given to her husband on 13.07.1994 by Brg. P.K. Gopal. She stated that she was not aware about the full name of Brg. P.K. Gopal. She stated that she does not remember the address of Pamposh Enclave where the cheque was given to her husband. She stated that she does not remember the bank name of whose cheque was given FIR No. 516/94 State Vs. Shashi Dharan 16/39 to her husband. She stated that when cheque was given to her husband/accused by Brg. P.K. Gopal nobody was there except her, accused and Brg. P.K. Gopal. She stated that she remained at the residence of Brg. P.K. Gopal for about 1015 minutes. She stated that she does not remember the date on which her husband was appointed by the complainant. She stated that she also does not know the date on which the services of her husband had been terminated by the complainant. Even she does not know what salary he was drawing from the said trust. She stated that even she does not know the address of the above said trust where her husband was working. She voluntarily stated that it was in Defence Colony. She stated that she does not know in which capacity her husband was working in the said trust. She stated that she has not come to save her husband but she only come to depose as to the true facts of the case. She denied the suggestion that she was deposing falsely to save her husband. She denied the suggestion that no such cheque was handed over to her husband in her presence.
18. DW2 Sh. Shashi Dhar deposed that when he was working as a part time typist near Savitri Cinema, Brgd. Gopal used to come there for certain typing work. He was happy with his work and told him that he wants to keep him as his employee and accordingly asked him to go to the house of Lt. Gen. Sushil Kumar (complainant). He deposed that on 16.11.1992 he got employed as office FIR No. 516/94 State Vs. Shashi Dharan 17/39 Incharge in the house of Lt. Gen. Sushil Kumar i.e. C30, Defence Colony from where a Trust in the name of Shatrujeet Enterprises Pvt. Ltd. was being operated. He deposed that he was issued an appointment letter i.e. Ex. DW2/A at the time his appointment. He deposed that he was assured a salary of Rs. 3000/ per month, out of the said salary Rs. 1000/ per month were deducted towards security to be refunded to him along with interest as per Clause2 of the appointment letter. He deposed that from April, 1994 he was transferred to Sudbhavna Trust which was also operated from the above said house by three Turstee namely Brgd. Gopal Singh, Lt. Gen. Sushil Kumar and his wife. He deposed that when he was appointed in Sudbhavna Trust as a typist, he was given the same salary of Rs.3,000/ along with one increment of Rs.250/ and Rs.1,000/ were deducted towards security as mentioned above. He deposed that in the first week of July, 1994 he was informed that his services shall be terminated from Sudbhavna Trust w.e.f. 31th July, 1994. He deposed that they informed that as the Trust was having no work, his services were not required any longer. He deposed that at that time, he requested the Trustees to clear his dues i.e. to refund to him the Security amount @ 1,000/ per month since his appointment along with interest apart from other benefits. He deposed that the notice of termination was communicated to him by Brgd. P.K. Gopal. He deposed that the said demand of dues was raised before Brgd. P.K. Gopal. He deposed that first week of July, 1994 in absence of Lt. Gen. Sushil Kumar, he was asked FIR No. 516/94 State Vs. Shashi Dharan 18/39 by Brgd. P.K. Gopal to work at his house i.e. B12, Greater Kailash EnclaveI, Behind Pamposh Enclave Bus Stop. He deposed that initially, he refused to clear the dues. Accordingly, he informed him that he shall initiate appropriate legal remedy before the Labour Court and would highlight the fraud committed by them as they had opened a Consultancy Firm in the name of P.K. Consultancy wherein they used to transfer the Trust amount for their own personal benefit. He deposed that they had also not paid the dues of an earlier employee Mr. Kutty in a similar manner. He deposed that Mr. Kutty is no more. He deposed that after three days, he again raised the demand but Brgd. Gopal refused the same, however, after two days he called up at the office and Brgd. Gopal asked him to come there. When he reached there, he handed over to him the cheque in question. He deposed that he had taken his wife to the office that day and the cheque was handed over in her presence. He deposed that at the time, when the cheque was handed over to him, he was asked to sign a voucher as a token of receiving. He deposed that he deposited the cheque in his savings account at State Bank of Patiala on the next day. He deposed that after one week, when he went to the bank to withdraw the amount from his account they refused to release the amount and instead he was called in the office inside the bank. He deposed that they inquired him about the cheque and he told them that the cheque was handed over to him by Brgd. Gopal and he gave them the office address along with the phone number. He deposed that after 10 minutes, he was FIR No. 516/94 State Vs. Shashi Dharan 19/39 called at the counter and a sum of Rs.10,000/ was released to him. He deposed that he had also withdrawn further money from the bank account on numerous occasions. He deposed that after few days, police officials came to his house regarding certain query. He deposed that he became apprehensive and called up at his office and Lt. Gen. Sushil Kumar informed him that he had filed a case against him. He deposed that as far as he recalled, the police official had come to his house in December, 1994. He deposed that he asked Lt. Gen. Sushil Kumar why and for what purpose he has filed the case against him. He deposed that he told him that either he return Rs. 52,000/ or else face the case. He deposed that he told him that Rs. 52,000//cheque was handed to him towards his dues and he will not returned the same. He deposed that after the FIR was registered, he got anticipatory bail orders in his favour.
19. During his cross examination he stated that he never worked in Indian Air Force at the rank of Air Man. He stated that he was appointed at Shatruji Trust on 16.11.1992. He stated that Mr. Kutti was employed in the Shatruji Trust before his joining and his services were terminated before his joining the said trust. He stated that he had never met or seen Mr. Kutti in his life. He was told about Mr. Kutti i.e. his employment at Shatruji Trust and his removal by some staff members. He stated that he cannot tell the name of the said staff member. He admitted that there was no permanent staff apart from him and Mr. Kutti. He FIR No. 516/94 State Vs. Shashi Dharan 20/39 voluntarily stated that as and when required men forced was got available on temporary basis. He stated that he cannot tell the name of any such person called for job during his employment at the above said trust. He stated that he was paid Rs.3,000/ pm as salary. Out of the said Rs.2000/ was paid to him by way of a self cheque and Rs.1,000/ was deducted pm from his salary. He stated that he was a temporary employee. Terms and conditions of his appointment is Ex.DW2/A. He admitted that no date is mentioned on the first page of the said appointment letter. He voluntarily stated that it is also mentioned on the first page. He stated that he worked in both the trusts from November, 1992 till 31.07.1994 i.e. 20 months. He stated that the cheque in question i.e. the cheque which was issued to him was for a sum of Rs.52,000/. He admitted that Ex.PW1/A bears his signature at point B. He admitted that the said documents is a hand written one. He admitted that Ex.PW1/C is his termination letter issued by Sadbhawana Trust. He admitted that Ex.PW1/F bears his signature at point A. He admitted that in Ex.PW1/F nothing is mentioned regarding the cheque in question or the leave encasement etc. He voluntarily stated that he had signed the said documents on 01.08.1994 and the cheque was handed over to him on 13.07.1994. He stated that at the time when he signed Ex.PW1/F he was told that the cheque which was handed over to him on 13.07.1994 cover his entire dues as well as the amount as mentioned in Ex.PW1/F. He stated that he had never obtained any loan from Sadbhawana Trust for the purpose of marriage of FIR No. 516/94 State Vs. Shashi Dharan 21/39 his sister. He admitted that document Mark A bears his signature and he had forgotten about the said loan. He admitted that even this loan was settled in the final settlement i.e. Ex.PW1/F. He admitted that he/his counsel had never put document Ex.DW1/A to any of the prosecution witnesses during their cross examination. He stated that he had not handed over the same to the IO. He admitted that he has not filed any claim/complaint in the labour forum or any other forum against Brig. P K Gopal and Lt. Gen. Sushil Kumar. He stated that the signing authority of the cheques was chief trustee i.e. Lt. Gen. Sushil Kumar. He stated that the cheque was handed over to him by Brig. P K Gopal and it was bearing signatures of Lt. Gen. Sushil Kumar. He denied the suggestion that two cheques leaf lets were signed by Lt. Gen. Sushil Kumar and handed over to Brig. P K Gopal in his presence. He denied the suggestion that he was aware about the place where the signed/blank cheque was kept. He denied the suggestion that he stole the cheques, forged it, filled up the amount and got the same encased. He denied the suggestion that the cheque of Rs.52,000/ was never handed over to him by Brig. P K Gopal. He stated that he withdraw the amount on 45 occasions i.e. once Rs.10,000/, Rs.40,000/, Rs.15,000/ and Rs.400/. He denied the suggestion that he was deposing falsely.
20. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP, carefully gone through the evidence recorded in FIR No. 516/94 State Vs. Shashi Dharan 22/39 the matter and perused the documents placed on record by the prosecution in this case.
21. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
22. It stands unambiguously proved from the deposition of the prosecution witnesses which included complainant Lieutenant General Sushil Kumar that accused Shashi Dharan had in deed committed theft of cheque bearing no. 207702 and used the same for his own use without the consent of the complainant knowingly that the cheque had been forged at the time of its presentation in the bank for the purpose of transfer/encashment of the cheque in his account.
23. From the evidence led by the prosecution, the defence evidence led by the accused and his statement u/s 313 Cr.P.C. no doubt remain that the accused Shashi Dharan was employed as a Clerk in the office of the complainant. It was also proved and admitted that the cheque in question was deposited by the accused in his account and the amount of the cheque transferred in his account thereon. These two aspects were not only never disputed during the trial but they FIR No. 516/94 State Vs. Shashi Dharan 23/39 also stood proved otherwise in view of the evidence led by the parties and the admission made by the accused.
24. Briefly, discussed the proof of the above facts is as under: Firstly, the testimony of the complainant who was examined as PW1 read as:
"Mr. Shashi Dharan, accused present in the court, was employed as a Clerk in the office of the Trust (i.e. Sadbhawna Trust) w.e.f. 01.04.1994.................. the letter of appointment is Ex. PW1/D".
PW2's deposition in this regard read as:
"Accused Shashi was employed in the office of Trust for official/Clerical job on 01.04.1994 ................................ appointment letter of the accused is Ex. PW1/D which bears my signatures at point A".
25. Secondly, the factum of his employment in the Trust run by the complainant was admitted by the accused when he led his defence evidence. The relevant portion read as under:
"From April, 1994 I was transferred to Sadbhawna Trust which was also operated from the above said house by three trustee namely Brdg. Gopal Singh. Lt. General Sushil Kumar and his wife".
FIR No. 516/94 State Vs. Shashi Dharan 24/39
26. As far as the transfer of the amount of cheque no. 207702 from account no.66244 of the complainant maintained with the Canara Bank to the account of the accused maintained with State Bank of Patiala, Nehru Place was unambiguously proved by the prosecution and also admitted by the accused during the trial. The relevant portion proving the transfer of the amount is reproduced hereunder:
Deposition of PW1:
"Then I contacted Canara bank where I found a cheque had been encashed in the name of Shashi Dhar which was limited in the account of Shashi Dhar accused, State Bank of Patiala, Nehru Place ............................ the copy of the entry of my passbook is Ex. PW1/E".
27. The transfer of the amount was further proved by PW4 Sh, Brinendra Kandulna, Manager, State Bank of Patiala when he deposed that:
"I have also brought the statement of account pertaining to the saving account of Shashi Dhar, same is Ex. PW4/B ........................ the certified copy of statement of account of accused Shashi Dhar is Ex. PW4/C".
28. Similarly, PW5 Sh. A.R. Choudhary, Manager, Canara Bank, proved as FIR No. 516/94 State Vs. Shashi Dharan 25/39 under:
"The attested copy of the same (account no. 66244) is Ex. PW5/A bears my signature at point A. Account no. 66244 is the account of Sadbhavna Trust. The statement of account shows that a transaction dated 18.07.1994 for the sum of Rs. 52,000/ was made vide cheque no...702".
29. The deposition of Inspector Dinesh Sharma in this regard read as under:
" On 11.11.1994, I went to Canara Bank, Lajpat Nagar where I met the Manager of the said bank and inquired about the complainant's trust account i.e. Sadbhawna Trust, C30, Defence Colony bearing account no. 66244. I gave a notice u/s 91 Cr.P.C. to the Manager to produce the cheque bearing no. 207702. He produced the original cheque bearing no. 207702, A/c no. 66244 of Sadbhawana Trust and also produced an attested copy of Pass sheet relating to transaction of cheque bearing no. 207702, A/c no. 66244. I seized both the above said documents vide siezure memo Ex.PW6/B which bears my signatures at point A.............................On 09.12.1994, I received a letter from State Bank of Patiala, Nehru Place through post along with a letter enclosed with the copy of ledger sheet relating to accused's account i.e. transaction on 18.07.1994, copy of the same is Ex.PW6/C showing transaction at point A".
FIR No. 516/94 State Vs. Shashi Dharan 26/39
30. Admissions made by accused Shashi Dharan during his examination as DW2 read as:
" After three days, I again raised the demand but Brgd. Gopal refused the same, however, after two days I called up at the office and Brgd. Gopal asked me to come there. When I reached there, he handed over to me the cheque in question. I had taken my wife to the office that day and the cheque was handed over in her presence. At the time, when the cheque was handed over to me, I was asked to sign a voucher as a token of receiving. I deposited the cheque in my savings account at State Bank of Patiala on the next day. After one week, when I went to the bank to withdraw the amount from my account they refused to release the amount and instead I was called in the office inside the bank. They inquired me about the cheque and I told them that the cheque was handed over to me by Brgd. Gopal and I gave them the office address along with the phone number. After 10 minutes, I was called at the counter and a sum of Rs. 10,000/ was released to me. I had also withdrawn further money from the bank account on numerous occasions".
31. Further admissions were made by the accused to this effect during his examination u/s 313 Cr.P.C. To question no.1 & 3 put to him during his examination u/s 313 Cr.P.C. he replied as under:
FIR No. 516/94 State Vs. Shashi Dharan 27/39 " It is incorrect. I have been falsely implicated in this case. I never committed any theft or any criminal breach of trust. The cheque was given to me by Brg. P.K. Gopal towards my dues which included my one month salary and Rs. 1,000/ which was deducted every month since November 1992 i.e. since my appointment. The cheque was indeed put by me in my account as it was lawfully given to me by Brg. P.K. Gopal".
"I do not know why he is deposing falsely against me. He illegally terminated my services. I threatened to initiate a legal against me in the Labour Court. After 23 days of my termination I with my wife went to Brg. P.K. Gopal at his residence and there cheque of Rs. 52,000/ i.e. cheque no. 207702 towards my dues. Even after encashing the cheque, I kept on working with the complainant. It was only after detailed inquiry that the cheque was allowed to be encashed by the Manager. He is deposing falsely about the theft/breach of trust".
32. The above answers are admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. (Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja FIR No. 516/94 State Vs. Shashi Dharan 28/39 V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315).
33. The limited defence put up by the accused and in fact it would be correct to say available to the accused was that the cheque in question was handed over by Brgd. P.K. Gopal to him towards full and final settlement of his dues on account of his employment with the trust run by Brgd. P.K. Gopal with complainant Lieutenant General Sushil Kumar. However, this defence put up by the accused was sham, frivolous and bogus. It was an after thought and in fact the defence put up by the accused itself shows his unrepenting attitude and craftiness.
34. The accused claimed innocence while asserting that the cheque in question was handed over to him on account of the dues which were payable to him by the trust/the trustee which included the complainant and Brgd. P.K. Gopal. He claimed that since his employment w.e.f. November, 1992 with Shatrujeet Trust (which was also a trust run by the complainant) he was paid a salary of Rs.3000/ per month out of which Rs. 1,000/ per month were deducted. He claimed that after he was appointed/transferred in Sadbhavna Trust he was given the same salary along with an increment of Rs. 250/. In July, 1994 he was informed that his services shall be terminated w.e.f. 31.07.1994 and accordingly FIR No. 516/94 State Vs. Shashi Dharan 29/39 he requested the trust to clear his dues which was declined. However, on much persuasion and when he threatened to take them to Labour Court they ultimately cleared his dues and he was handed over the cheque in question by Brgd. P.K. Gopal. However, later on the complainants implicated him in this false case.
35. However, his above plea did not inspire confidence at all. It was full of lies, contrary to the records and he miserably failed to prove it even remotely.
36. The testimony of his wife whom he had examined as DW1 in his defence fails to inspire confidence and she could not give any satisfactory answers to the questions put by the Ld. APP for the State. She fumbled badly and gave evasive answers. She failed to give the address of the place where the cheque was handed over to her husband though, she claimed it was handed over in her presence. She failed to give the address of the trust or the amount of salary drawn by her husband or his date of appointment/termination. As far as his own defence evidence is concerned, during his cross examination the accused (DW2) was called upon to explain as to how come the amount of the cheuqe in question i.e. Rs. 52,000/ became due to him. The question read as under: Q. Your salary was Rs.3000/ p.m. You have claimed that you were given Rs.2000/ pm and Rs.1000/ was deducted as security for a period of 20 months. The cheque in question is of Rs.52,000/. If the security was FIR No. 516/94 State Vs. Shashi Dharan 30/39 paid to you for 20/21 months it comes around Rs.20/21,000/ pm and on this if simple interest of 6% per annum is added then the amount comes some where around Rs.1730/ and the total comes around Rs.21,730/22,730/. I put it to you that you cannot justify the handing over the cheque of Rs. 52,000/ to you on the basis of the above said calculation. Itself proves that you had stolen and forged the cheques.
Ans. I cannot tell why they handed over me the cheque of Rs. 52,000/. I did not ask them the calculation when the cheque was handed over to me. Vol. They told me that the said cheques was towards my entire dues which include Rs.1000/ pm security, interest thereof, leave encasement, benefit etc.
37. This above question and answer itself completely threw away the defence of the accused. In fact, his entire defence which otherwise had no base/foundation came crashing down. It became writ large that he was never handed over the cheque in question because why would an employer hand over to an employee an amount which is more than twice the amount of the salary/benefits due to him more so when his services are being terminated.
38. None the less, as I have already observed above the defence was an after thought and last pitched attempt of the accused to avoid his liabilities as well as FIR No. 516/94 State Vs. Shashi Dharan 31/39 escape the gallows. Reasons for my above conclusion are based upon the deposition of the complainant and the documents as proved by him. The complainant categorically stated during his deposition that the services of the accused was terminated vide letter of termination i.e. Ex. PW1/C and at that time a final statement of account, settlement of salary and the other dues of the accused was also done vide Ex. PW1/F. This part of the testimony of Lieutenant General Sushil Kumar remained unchallenged/uncontroverted as he was not cross examined despite opportunity. Furthermore, these two documents i.e. letter of termination and the settlement of account were put to the accused during his cross examination and he duly admitted both the documents to be correct and containing his signatures. His answer to the above letters read as:
" It is correct that Ex.PW1/C is my termination letter issued by Sadbhawana Trust. It is correct that Ex.PW1/F bears my signature at point A. It is correct that in Ex.PW1/F nothing is mentioned regarding the cheque in question or the leave encasement etc".
39. The relevant portion of the letter vide which the accounts were settled i.e. Ex. PW1/F read as under: "I certify that no more money is outstanding against Sadbhavna Trust. I have received all my dues". As already discussed above the accused admitted his signatures which appear at point "A" on Ex. PW1/F and never claimed during the trial that its contents were incorrect or FIR No. 516/94 State Vs. Shashi Dharan 32/39 forged after words.
40. These two letters i.e. Ex. PW1/C and Ex. PW1/F make it crystal clear that at the time when the accused was informed about the termination of his services whatever was due towards him was handed over to him and he also signed the documents as an acknowledgment of the receiving. Same was also proved by PW2 Brgd. P.K. Gopal when during his cross examination he stated as "Accounts statement Ex. PW1/F was prepared by me and signed by accused at point A in its acknowledgment".
No doubt, the check number and its date remained blank on Ex. PW1/F however, the reason for the same was duly explained by Brgd. P.K. Gopal when he stated as following: "Payment as shown in final statement of accused Ex. PW1/F was made in cash to accused, but there is no separate receipt except this letter Ex. PW1/F for showing payment". I find no reasons to disbelieve the above statement. May be after the statement of account was drawn, the amount due arrived at vide Ex. PW1/F the accused requested the payment to be made in cash and not by way of cheque. Same seems natural/probable. Or else I am of the firm opinion that without receipt of his dues the accused would not have signed Ex. PW1/F. None the less, the fact remains that he could not explain the handing over of the cheque of Rs.52,000/ to him because even as per Ex. PW1/F only Rs. 2099.50/ were due to him.
FIR No. 516/94 State Vs. Shashi Dharan 33/39
41. The accused had also produced one document i.e. Ex. DW2/A claiming the same to be his appointment letter however, the said letter also did not help his cause. Firstly, the complainant categorically denied having executed the document. Secondly, as far as the salary of the accused was concerned PW2 during his cross examination had categorically denied that the accused was paid a salary of Rs.3,000/ per month. He stated as following: "It is wrong to suggest that salary was fixed as Rs.3000/ out of Rs.2000/ was being paid and Rs.1000/ was being deducted for the benefit of the employee/accused........................... the accused was paid through self cheque for a salary. I can produce the record of payment of salary to the accused, the receipt of salary of payment are Ex. PW2/D1, D2, D3, D4 & D5 (OSR)". I have gone through Ex. PW2/D1 to D5 which make it crystal clear that the accused was paid a salary of Rs. 2000/ per month and not Rs.3000/ as claimed by him. Thirdly, I have serious doubts regarding the genuineness of the above document i.e. Ex. DW2/A. Had the document being a genuine one and as it was in the custody of the accused nothing stopped the accused from bringing the said document on record for 18 long years. He admittedly did not hand over the said document to the IO during the investigation, neither did he put the said document to the complainant or eye witness Lieutenant General Sushil Kumar during their cross examination. Fourthly, even the said document does not FIR No. 516/94 State Vs. Shashi Dharan 34/39 justify the handing over of cheque of Rs.52,000/ to the accused because the amount of the cheque does not telly with the dues towards him as claimed by him. Fifthly, he admitted that document Ex. PW1/A bore his signatures. Ex. PW1/A is the appointment letter of the accused which was executed at the time of appointment of the accused with Sadbhavna Trust. When this document was put to the accused during his cross examination he stated as under: "It is correct that Ex. PW1/A bears my signature at point B. It is correct that the said document is a hand written one". The contents of Ex. PW1/A read as under:" we are pleased to appoint you to perform the office related duties with effect from 01 April 94. You are pay (consolidated) will be @ Rs.2250/ (two thousand two hundred and fifty only) besides the actual cost of travel". The admitted signatures of accused appeared at point B on the letter which also had an endorsement "the appointment is accepted". This Ex. PW1/A itself creates grave doubts about the genuineness of Ex. DW2/A which the accused produced during his defence evidence. If in deed he was drawing a salary of Rs.3000/ since 1992 as claimed by him I find no reasons why he would accept a much lesser salary of Rs.2250/ in the year 1994.
42. The accused had also cooked up a story about similar treatment given by the complainant trust to its earlier employee namely Mr. Kutti. But this story was created by the accused merely to confuse the court and to gain sympathy. He FIR No. 516/94 State Vs. Shashi Dharan 35/39 claimed that the complainant trust had also not given his dues and his services were also terminated in a similar manner. However, when he was grilled about said Mr. Kutti he fumbled and could not give any satisfactory answers. He admitted that he had never met him. He stated that he was not aware about his particulars i.e. address etc. and to worsen his case he even failed to provide the name of the employee/ the staff member who had told him about Mr. Kutti.
43. The accused was the sole employee in the complainants office. He failed to prove that the complainant had employed any other staff member apart from him. Being the sole employee of the complainant trust he had access to all the documents of the trust which included the cheque in question. PW2 Brgd. P.K. Gopal during his testimony had categorically stated that when the cheques including the cheque in question was signed by Lieutenant General Sushil Kumar accused Shashi Dharan was present. The statement read as: "When those cheques were signed by General Sushil Kumar accused Shashi was present". PW2 was never grilled on this part of his testimony. The above statement none the less, makes it amply clear that the accused was aware that blank cheques being kept with Brgd. P.K. Gopal. These blank cheques were kept by Brgd. P.K. Gopal at his residence i.e. B12, G.K.I. At this stage, it will be relevant to point out the relevant portion of deposition of accused (DW2). The same read as: FIR No. 516/94 State Vs. Shashi Dharan 36/39 "That first week of July, 1994 in absence of Lt. Gen. Sushil Kumar, I was asked by Brgd. P.K. Gopal to work at his house i.e. B12, Greater Kailash EnclaveI, Behind Pamposh Enclave Bus Stop. Initially, he refused to clear the dues".
44. From this above statement it is crystal clear that he had visited the premises of Brgd. P.K. Gopal. Hence, he not only had the knowledge about the blank cheques but also had the occasion to commit theft of the same. Admittedly, the amount of the cheque was encashed by him/transferred in his account. Hence, it was only him who had committed the theft because he was the sole beneficiary thereof. In fact, the way the amount was withdrawn by the accused from his account after his account was credited with the amount of the cheque of the complainant itself shows that the accused had committed the theft as well as criminal breach of trust. After the amount was credited in his account he withdrew Rs.10,000/ on 20.07.1994, Rs.15,000/ & Rs.40,000/ on 26.07.1994 etc. This hasty withdrawal of money from his account within a week of transfer of the cheque amount in his account proves that he wanted to siphon off the entire amount before his misdeeds came to light or else what was the occasion/compulsion for him to withdraw such huge amount.
45. Criminal breach of trust was complete the moment the cheque was used FIR No. 516/94 State Vs. Shashi Dharan 37/39 by him and the amount withdrawn thereof. No doubt, he did not have any physical control over the cheques but being employed in the complainant trust as a Clerk/Typist he had a dominion over the trust property which included the cheque in question. Reliance may be placed upon the law laid down in S.W. Palanitkar v. State of Bihar 2002 SCC (CRI) 129, KK Sanwatia v. State of Bihar (2003) 7 SCC 399.
46. The cheque which he had put in his account was a forged one. The amount and the name of the payee therein was not filled in by the complainant. He was aware about the said fact but still he used the document for the purpose of encashment/transfer of its amount in his account. No doubt, prosecution could not establish that it was he who had committed forgery because the FSL report on record i.e. Ex. PW4/A gave him a clean chit but the said report at the same time also established that Q1 to Q3 on the cheque in question were also not of the complainant. It was very well within the knowledge of the accused that the cheque which he was using was forged one. Encashment of cheque and transfer of its amount in the account of the accused makes him the sole beneficiary of the cheque. He being the sole beneficiary, encashment/transfer of the amount admitted by the accused as well as proved by the prosecution and his categorical admission that it was he who presented the cheque to his banker completes the offence u/s 471 IPC. He was very much aware, had full knowledge that the FIR No. 516/94 State Vs. Shashi Dharan 38/39 cheque in question was forged. Though, Ld. Defence Counsel had argued that accused cannot be held guilty u/s 471 IPC because prosecution could not prove that it was he who had forged the cheque however, I do not agree with the Ld. Defence Counsel. Offence u/s 471 is complete once the document is produced/presented. 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 of the necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be forged one. Reliance may be placed upon the law laid down in "Krishnan A S 2004 Cri LJ 2833 and T J Changani (2000) 8 Supreme 455.
47. Hence, in view of my above discussion, I hold accused Shashi Dharan guilty u/s 381/408/471 IPC.
Announced in the open (Gaurav Rao) Court on 15.03.2012 MM (SD)/Delhi FIR No. 516/94 State Vs. Shashi Dharan 39/39
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS SHASHI DHAR F.I.R. No: 516/94 U/s 381/408/420/467/471 IPC P.S. Defence Colony ORDER ON SENTENCE 16.03.2012 Present: Ld. APP for the State.
Convict Shashi Dharan is present along with his counsel. Vide separate judgment announced on 15.03.2012 accused was convicted u/s 381/408/471 IPC.
The learned defence counsel for the accused has submitted that the accused has been facing trial for the last more than 18 years and the same itself has been enough punishment for him. It was submitted that the convict is around 49 years old, has a large family to look after. It was further submitted that the convict/accused is not a previous convict, not involved in any other criminal activity and he should be given one FIR No. 516/94 State Vs. Shashi Dharan 40/39 opportunity to reform himself. It was also prayed that the accused be given benefit of Section 360 Cr.P.C i.e. be released on probation.
Per contra, learned APP has very vehemently argued that the act of the accused is unpardonable. She has submitted that the accused deserve no leniency least to release him on probation.
After giving my thoughtful consideration to the submissions made at bar and in particular the facts and circumstances of the present case, I am of the considered opinion that it shall meet the ends of justice if accused Shashi Dharan is sentenced to undergo three year RI along with fine of Rs. 1,000/ each for offence u/s 381,408 & 471 IPC. In default of payment of fine, he is directed to undergo further SI of 10 days. As the accused was never in custody in the present matter as he was released on anticipatory bail by the Hon'ble Sessions Court, benefit of Section 428 Cr.P.C. is not given to him. All sentences to run concurrently. He is further directed to pay compensation of Rs.1 Lac to the complainant. In default of payment of compensation he shall undergo further SI of 60 days.
I am not inclined to grant benefit of probation to the accused or to let him off after due admonition as the circumstances in which the offence was committed shows the criminal bent of mind of the accused. He not only committed grave offence like theft at a very place he was employed FIR No. 516/94 State Vs. Shashi Dharan 41/39 but he also committed criminal breach of trust and misused/misappropriated the trust money which was otherwise meant for poor children. He involved the State machinery for 18 long years and never showed sign of repentance of the criminal acts committed by him.
I order accordingly.
At this stage, an application u/s 389 Cr.P.C has been moved for suspension of sentence on behalf of the accused.
Heard. Taking into account the fact that he was on bail during the trial, application is allowed subject to furnishing bail bond in the sum of Rs. 10,000/ with one surety of like amount.
Bail bonds furnished and accepted.
A copy of this order be given to the convict free of cost.
Announced in the open court (Gaurav Rao) on 16.03.2012 MM(SD): Delhi FIR No. 516/94 State Vs. Shashi Dharan 42/39