Delhi District Court
C.B.I. vs . Rameshwar Tiwari & Others on 30 May, 2013
CBI Case No. 14/12
C.B.I. Vs. Rameshwar Tiwari & Others
30-05-2013
Present : Shri Harish Kumar Gupta, Special PP for CBI.
Accused No. 1, Rameshwar Tiwari and accused No. 3,
Sunil Kumar Tiwari on bail with counsel Sh. K.K.
Sharma.
Accused No. 2, Mohd. Amin @ Dr. Bhola on bail.
Vide a separate order dictated in the Court, all the accused
persons have been acquitted of the charges leveled against them.
Their earlier bail bonds are cancelled and their sureties are
discharged.
The accused persons are directed to furnish personal/bail
bonds in the sum of Rs.1,00,000/- with one like surety each in terms of
Section 437-A Cr.P.C.
At this stage, all the accused persons submit that they were
not aware that they will be required to furnish bail bonds with sureties
in terms of Section 437-A Cr.P.C. and that since they are residents of
U.P., they be given time till 03-06-2013 to furnish surety bonds and till
then, their personal bonds be accepted.
An application on behalf of accused No. 1, Rameshwar
Tiwari and accused No. 3, Sunil Kumar Tiwari in this regard has also
been moved by their counsel Sh. K.K. Sharma. Similar application has
been moved by accused No. 2, Mohd. Amin @ Dr. Bhola.
Heard. In view of the given facts, their applications are
allowed and they are granted time till 03-06-2013 to furnish PB/SB in
terms of Section 437-A Cr.P.C. They have furnished personal bonds in
terms of Section 437-A Cr.P.C. which are accepted till 03-06-2013.
Put up on 03-06-2013 for further proceedings.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi
30-05-2013 (ra)
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC
ACT) & (CBI)-03, SOUTH WEST DISTRICT, DWARKA,
NEW DELHI
CBI Case No. 14/12
RC No. 2(E)/2003/EOW-II/DLI
In re:
Central Bureau of Investigation
Vs.
1. Rameshwar Tiwari,
S/o Late Sh. Rajnet Tiwari,
R/o Village Barwa,
PO & PS Mehnajpur,
District Azamgarh, UP.
2. Mohd. Amin @ Dr. Bhola,
S/o Mohd. Yaseen,
R/o G-2/71, Rail Vihar Colony,
PS Chiluwa Tal,
District Gorakhpur, U.P.
3. Sunil Kumar Tiwari,
S/o Late Sh. Dhirendra Tiwari,
R/o C/o Ms. Madhuri Singh,
86, Ganga Pradushan Niyantran Road,
Bhagwan Pur, Lanka, Varanasi, U.P.
Also At :-
Village Barwa,
PO & PS Mehnajpur,
District Azamgarh, U.P.
Date of Institution of Case : 07-01-2005
Date on which Judgment was reserved : 15-05-2013
Date on which Judgment was delivered : 30-05-2013
JUDGMENT
FACTS
1. On 19-05-2003, this case was registered on the complaint of Sh. S. Sarkar, Senior Vice President, Unit Trust of India, (hereinafter called 'UTI') Financial Centre, New Delhi. It was alleged that some unknown persons had encashed 97 fake and forged UTI's at par cheques dated 07-07-2001 & 17-06-2002, for a total sum of Rs. 24,06,550/-, favoring different persons through various upcountry branches of Central Bank of India, as a result of which Rs.20,12,625/- and Rs.3,93,925/- were debited to at par accounts No. 10093 and 10098 of UTI in Central Bank of India, Janpath, New Delhi. It was further alleged that the aforesaid 97 at par cheques were got encashed through 18 different accounts maintained with different banks and UTI was defrauded to the tune of Rs.24,06,550/-.
2. It is alleged that UTI, a financial institution mobilizes deposits from the public under various schemes namely Master Equity Plan-91 (hereinafter called 'MEP-91'), Unit Linked Insurance Plan (hereinafter called 'ULIP') etc. for specified periods and further invest the money into equity market. On maturity, the investors/unit holders are paid the maturity amounts through dividend warrants/at par cheques of at par accounts maintained by UTI with a particular branch of nationalized bank in a city on which dividend warrants/at par cheques are drawn. The dividend warrants/at par cheques bear facsimile signatures of two authorized officers. UTI Investors Service Ltd. (UTI, ISL), a subsidiary agency of UTI looks after data processing, general correspondence, change of address, printing and distribution of dividend warrants/at par cheques. Both UTI & UTI, ISL have got an authorized printer at Mumbai for printing of dividend warrants/at par cheques. For the purpose of printing of at par cheques specimen signatures of authorized signatories are obtained and facsimile signatures are got printed on the blank dividend warrants/at par cheques with different serial numbers.
3. It is further alleged that during October-November 2002, after reconciliation, UTI found that 97 forged dividend warrants/at par cheques were forged out of which, 81 dividend warrants/at par cheques were purportedly issued under MEP-91 scheme and 16 under ULIP scheme. The names of the unit holders on these instruments were found to be bogus as at par cheques of the respective MICR Nos. were actually issued to different persons. Such dividend warrants/at par cheques were paid through Central Bank of India, Janpath Branch, New Delhi where UTI was maintaining A/c Nos. 10093 & 10098 for MEP-91 Scheme & ULIP Scheme, respectively.
4. It is the case of CBI that accused No. 1, Rameshwar Tiwari, s/o Sh. Rajnet Tiwari R/o Village Barwa, PO & PS Mehnajpur, Distt. Azamgarh (UP), in criminal conspiracy with accused No. 2, Mohd. Amin @ Dr. Bhola, R/o G-2/71, Rail Vihar Colony, PS Chiluwa Tal, Gorakhpur (UP) and accused No. 3, Sunil Kumar Tiwari, S/o Sh. Dhinrendra Tiwari, the then Branch Manager, Punjab National Bank (hereinafter referred to as PNB), Amaon Distt. Kaimur, Bihar and certain other accused persons, impersonated himself as Rameshwar Singh, S/o Late Sh. Vaidyanath Singh, R/o Ward No. 11, Patel Chowk, Bhabhuwa, Kaimur (Bihar) and got forged three UTI at par cheques bearing MICR No. 005248 and 005249 for Rs.25,000/- each and 005251 for Rs.23,875/-, all dated 07-07-2001, and fraudulently revalidated in hand upto 05-01-2002, favouring accused Rameshwar Singh and purportedly issued by UTI, ISL, New Delhi under MEP-91 Scheme. These chques were bearing facsimile signatures of two authorized signatories, namely Sh. S.K. Dogra, Branch Manager, UTI, Main Branch, New Delhi and Sh. P.C. Gupta, Zonal Manager, UTI, Zonal Office, New Delhi. He deposited the same in SB Account No. 2788, in fictitious name of Rameshwar Singh, at PNB, Amaon, District Kaimur (Bihar) on 08-11-2001. After clearance through Central Bank of India, Sasaram, an amount of Rs.73,516/- was credited in the said account on 03-12-2001. He then withdrew the entire amount on different dates between 03-12-2001 to 14-01-2002. Accused No. 3, Sunil Kumar Tiwari knowing fully well that his cousin brother accused Rameshwar Tiwari was opening a fictitious account impersonating as Rameshwar Singh on the basis of forged documents, allowed opening of the said account, with dishonest intention to cause undue pecuniary gain to him.
5. Thus, the aforesaid accused persons in pursuance of criminal conspiracy with certain other unknown accused persons fraudulently and dishonestly cheated UTI to the tune of Rs.73,875/-.
6. Sanction for prosecution of accused No. 3, Sunil Kumar Tiwari, Branch Manager, PNB, was obtained under Section 19 (1) (c) of P.C. Act, 1988 from the competent authority. After completion of investigation, a Chargesheet was filed against accused No. 1, Rameshwar Tiwari, accused No. 2, Mohd. Amin and accused No. 3, Sunil Kumar Tiwari, under Section 120-B read with Section 420, 419, 467, 468, 471 IPC and Section 13 (2) read with 13 (1) (d) of the P.C. Act, 1988.
7. The accused persons were summoned vide order dated 29-08-2005 and copies of documents were supplied to them in terms of Section 207 Cr.P.C.
Charges
8. Vide order dated 03-11-2006, my Ld. Predecessor directed framing of Charges under Section 120-B/419/420/467/ 468/471 IPC and Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 against all the accused persons. Substantive Charges under Section 419/420/468 read with Section 471 IPC against accused No. 1, Rameshwar Tiwari, substantive Charge under Section 467 IPC against accused No. 2, Mohd. Amin and substantive Charge under Section 13 (2) read with Section 13 (1) (d) of the P.C. Act against accused No. 3, Sunil Kumar Tiwari were also directed to be framed. Charges were framed accordingly to which accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
9. In order to prove its case, prosecution has examined 20 witnesses. PW2 Sh. Brahm Dev Yadav, Branch Manager, PNB, Amaon (Hata), from June 2002 to January 2005, deposed about handing over of documents pertaining to account No. 2788 of Rameshwar Singh vide seizure memo dated 14-07-2003, EX.PW2/1. He further stated that account No. 2788 was opened by Rameshwar Singh, Ward No. 11, Patel Chowk, Bhabua on 08-11-2001. This account was introduced by Sh. Fateh Narain Singh and was allowed to be opened by accused No. 3, Sunil Kumar Tiwari. He proved the account opening form, EX.PW2/2 bearing signatures of accused No. 3, Sunil Kumar Tiwari, Sh. Rameshwar Singh and introducer and photograph of Rameshwar Singh at point D. He also proved specimen signatures card of Rameshwar Singh, EX.PW2/3 bearing his photograph and photocopy of Ration Card, in the name of Rameshwar Singh. He further stated that Sh.Fateh Narain Singh expired on 24-12-2001 and attested copy of his Death Certificate was Ex.PW2/4. He further deposed that the account was opened with Rs.100/- vide Pay in slip dated 08-11-2001, EX.PW2/5 on which accused No. 3, Sunil Kumar Tiwari signed as Passing Officer, and Rs.100/- was received by the then Cashier, Sh. Hemant Kumar Jha. He testified that UTI cheque No. 005249 revalidated upto 05-01-2002 was deposited in PNB, Amaon Branch on 08-11-2001, vide deposit slip, Ex.PW2/10. The said cheque was sent for collection by accused No. 3, Sunil Kumar Tiwari. He further deposed that similarly, UTI cheque No. 005248, EX.PW2/8 for Rs.25,000/- revalidated upto 05-01-2002 and UTI cheque No. 005251, EX.PW2/9 for Rs.23,875/-, revalidated upto 05-01-2002 were deposited in Account No. 2788 by Rameshwar Singh vide deposit slips dated 08-11-2001, EX.PW2/10 and EX.PW2/11. He also testified that the bill dated 09-11-2001, EX.PW2/12 for collection of above cheques was sent to PNB, Sasaram, Rohtas for clearance under signatures of accused No. 3, Sunil Kumar Tiwari. An amount of Rs.73,875/- was credited in account No. 2788 vide cheque collection advice, EX.PW2/13 on 03-12-2001. Forwarding Schedule Cum Manifold (hereinafter referred to as " FSCM" ) of Rs.73,875/- is EX.PW2/14. The aforesaid three cheques were entered in the register for outward bills, Ex. PW 2/15 for collection on 09-11-2001 in which entry has been made at point B.
10. PW2 Sh. Brahm Dev Yadav further deposed that Rameshwar Singh, the Account Holder withdrew Rs.50,000/- vide withdrawal slip dated 03-12-2001, EX.PW2/16, Rs.21,900/- vide withdrawal slip dated 14-12-2001, EX.PW2/17 and Rs.1,000/- vide withdrawal slip dated 14-01-2002, EX.PW2/18, which bear signatures of Rameshwar Singh at point A. He has also proved the Statement of Account of Account No. 2788 for the period 08-11-2001 to 13-03-2003, EX.PW2/19. A letter dated 27-07-2003, EX.PW2/20 was sent under his signatures to Insp. P.L. Chaurasia, IO.
11. PW3 Sh. Hemant Kumar Jha, Clerk Cum Cashier, PNB, Amaon Branch since 23-01-1998, has generally corroborated the testimony of PW2 Sh. Brahm Dev Yadav and stated that Rs.100/-, deposited by Rameshwar Singh for opening of the account was received by him. He further deposed that the Account Holder Rameshwar Singh was not found at the given address which was found to be non existent.
12. PW6 Sh. Kanwar Lal Garg, Assistant Manager, Central Bank of India, Janpath, New Delhi in the year 1994, deposed about UTI opening Account No. 10098 and account No. 10093 and submitting various documents in connection therewith in Central Bank of India. He has also proved statements of account of account No. 110093, EX.PW6/11 and account No. 110098, EX.PW6/12.
13. PW11 Sh. Hari Kishan Verma, Assistant General Manager at Janpath Branch of Central Bank of India, New Delhi w.e.f. April/May 2002 to 2005, has generally corroborated the testimony of PW6 Sh. Kanwar Lal Garg regarding opening of Account No. 10093 and 10098 by the UTI in Central Bank of India. He has also proved the seizure memo dated 16-06-2003, EX.PW11/H, letter dated 17-05-2004, EX.PW11/J, addressed to CBI vide which he has forwarded statement of account pertaining to account No. 10093, EX.PW11/J-1 (Colly.) and 10098 EX.PW11/J-2 (Colly.) for the period 01-07-2001 to 31-12-2002, copy of UTI letters dated 27-04-2000 and 10-05-2000 and specimen signatures of UTI Officials, EX.PW11/J-3 (Colly.). He further deposed that cheque number 005248, EX.PW2/8, cheque No. 005249, EX.PW2/6 and cheque No. 005251, EX.PW2/9 were presented for reimbursement in Central Bank of India, Janpath Branch, New Delhi through NBO, Central Bank of India, Sasaram Branch after making payment at their end through FSCM No. 440 dated 22-11-2001, EX.PW2/14. These amounts were reimbursed by Central Bank of India, Janpath Branch, New Delhi by debiting UTI Account. During his cross-examination, he stated that the cheques which were reimbursed, were taken to be correct by the Branch.
14. PW4 Sh. Kant Prasad Sinha, Head Cashier in Central Bank of India, Sasaram, Bihar, testified that UTI at par cheque No. 005248, EX.PW2/8 for Rs.25,000/-, cheque No. 005249, EX.PW2/6 for Rs. 25,000/- and cheque No. 005251 EX.PW2/9 for Rs.23,875/-, all dated 05-01-2002, and in favour of Rameshewar Singh, issued by UTI were passed and sent to Delhi, NBO for collection of amount. The said cheques were received by Central Bank of India, Sasaram Branch on 19-11-2001. These were cleared by Sh. Naresh Baitha, Assistant Manager and credited to the bank's nominal account. The credit voucher dated 19-11-2001 for Rs.73,875/- is Ex.PW2/13. The FSCM dated 21-11-2001 which was sent to NBO, Delhi is EX.PW2/14.
15. PW8 Sh. Raj Kumar Setia, Manager, Central Bank of India (Non Business Office), Jeewan Tara Building, Sansad Marg, New Delhi, which is a nodal agency of Central Bank of India for the purposes of clearance of cheques drawn on different branches of different banks located in Delhi, stated that along with FSCM No. 440 dated 22-11-2001, EX.PW2/14, they had received three cheques No. 005248, EX.PW2/8 for Rs.25,000/-, No.005249, EX. PW2/6 for Rs. 25,000/- and No.005251, EX.PW2/9 for Rs.23,875/-, all dated 07-07-2001. He further deposed that all the three cheques were valid upto 06-10-2001 as per the printed date but they were shown to be revalidated upto 05-01-2002 meaning thereby that the paying banker i.e. Central Bank of India, Janpath could pay these instruments on or before 05-01-2002, which were paid on 11-12-2001. The FSCM, EX.PW2/14 bears his signatures. He stated that he had signed this paper in token of having received this payment from Branch Office, Janpath and credited the amount to the Branch Office, Sasaram, Bihar. The above cheques along with other cheques were forwarded to their Branch Office, Janpath on 11-12-2001 through manifold No. 004, EX.PW8/A, for Rs.4,20,18,645.47. He further deposed that after sending the cheques in question i.e. EX.PW2/6, EX.PW2/8 & EX.PW2/9, along with Manifold No. 004, EX.PW8/A, which contains details of the aforesaid cheques at points X & Y, the NBO had not received back any of the cheque from Janpath Branch and as per practice, it was presumed that all cheques sent from NBO were cleared. So on the basis of the said presumption, they had forwarded copy of FSCM, EXPW2/14 to Central Bank of India, Sasaram Branch meaning thereby that NBO had credited the central office account of Sasaram Branch on 11-12-2001.
16. PW Sh. K.L. Arora (numbered twice as PW9 & PW10), Manager, Central Bank of India, Janpath from September 2000 to November 2003, has testified about the procedure for processing and payment of at par cheques issued by UTI. He deposed that cheques EX.PW2/8, EX.PW2/6 & EX.PW2/9 were received through NBO Delhi in clearing department of his branch from where these were given to the computer processing agency. These cheques were debited to account No. 10093 of UTI. He has also testified about the account opening form, EX.PW11/A, request letter of UTI, Ex.PW11/B and the Manifold, Ex.PW8/A. He further stated that UTI has authorized Central Bank of India, Janpath Branch to honour the credit advice so received from upcountry branches of Central Bank of India, as and when received along with requisite/supported documents.
17. PW5 Sh. Samya Sarkar, Senior Vice President Incharge UTI (Mutual Fund), Financial Centre, New Delhi and Incharge of the Northern Zonal Office during the year 2002-03, testified about making a complaint dated 14-05-2003, Ex.PW5/1 to CBI regarding use of fake facsimile stationery, issue of cheques on the fake stationery and realization of the cheques through bank. He further stated that complaint was made on the basis of report on fraud cases dated 13-12-2002, EX.PW5/2, submitted by the Vice President, Sh. Vijay Raghavan. He also stated that a letter dated 11-02-2002, Ex.PW5/3 was put up by Sh. Vijay Raghavan to him. Similarly, another latter dated 11-02-2002, EX.PW5/4 was sent to the Branch Manager, Central Bank of India. He also deposed about another report on fraud cases dated 13-12-2002, EX.PW5/5 prepared by Assistant Vice President, Shri Rajendra. A letter dated 10-12-2002, Ex.PW5/6 under the signatures of Shri S.K. Dogra, Branch Incharge was received by the Assistant Vice President on 10-12-2002. Similarly, letters dated 20-12-2002 and 27-12-2002, EX.PW5/7 and EX.PW5/8, under the signatures of Sh. S.K. Dogra were received. He further stated that the complaint was made in respect of 97 forged cheques which were got encashed through Central Bank of India, upcountry branches.
18. PW18 Sh. P.B. Vijayaraghavan, Vice President of UTI Mutual Fund at New Delhi in the year 2001, testified that cheques, Ex. PW 2/8, Ex. PW 2/6 and Ex. PW 2/9 have not been actually issued by UTI. On the reverse of these cheques, in the address of UTI Investors Services Ltd., in the words, " first floor" , the word floor starts with small " f" , whereas in the original cheques, it is always in capital " F" . In the cheque No. twice printed on the face of the cheque, there is a difference in the digits which will not happen in the original cheque and from the texture of the cheques, he could also say that this is not the original stationery used by the UTI. In the said cheques, manual revalidation has been done. As per their procedure, if the cheques issued to any investor is not presented within the period of validity and the investor comes to them, they always cancel the cheque and issue fresh cheque. Manual revalidation on the instrument is never done. He further stated that the above fraud came to his knowledge sometimes in the year 2002-03 during the reconciliation process. He reported the matter to the Zonal Manager and it was taken up with the Vigilance Department for further investigation. He has also written a letter dated 20-11-2002, Mark PW18/1 (Colly) to Sh. S.K. Dogra, Vice President, UTI Investors Services Ltd. He has proved the two reports on fraud cases, both dated 13-12-2002, Ex. PW 5/5 and Ex.PW5/2. He also deposed about various documents of UTI for opening of Account in Central Bank of India. He further stated that the reconciliation agency informed him that the three instruments, Ex. PW 2/6, Ex. PW 2/8 and Ex. PW 2/9 were not tallying with the issue master and, therefore, these were not issued by UTI. He conducted a preliminary investigation and concluded that these were fraudulent instruments and reported the same to the Zonal Manager and Vigilance Department.
19. PW7 Sh. Prakash Chand Gupta, Chief General Manager/Zonal Manager in the Northern Zonal Office from May 2000 to September 2001, deposed that his signatures were appearing on EX.PW2/8, EX.PW2/6 and EX.PW2/9 as Zonal Manager and those of Sh. S.K. Dogra, Branch Manager at point B but infact these cheques were never issued by UTI in the name of Shri Rameshwar Singh and these cheques appeared to be forged one.
20. PW15 Sh. Satish Kumar Dogra, Branch Manager, UTI, New Delhi Branch Office during the period 17-09-2001 to 21-10-2002, deposed that the cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9 were not genuine. He has also given the reasons for the cheques being not genuine. He also testified about account opening documents pertaining to the two accounts of UTI, procedure for printing of the cheques and the procedure for payment of at par cheques issued by UTI.
21. PW13 Sh. Shashank Senapati, Assistant Manager (Operations) in UTI Investors Services Ltd. in the year 1999 and 2001, who had dealt with the reconciliation of maturity cheques/DD, deposed that in the year 2002-03, it was found that some forged cheques were bring presented and encashed. He reported the matter to his superiors, one of whom was Shri Jagjit Singh, the Branch Manager. When cheques EX.PW2/8, EXPW2/6 and EX.PW2/9 came to them for reconciliation, they found that these cheques have been manually revalidated which was not the procedure. The said cheques did not tally with the soft copies maintained in their bank. He has also pointed out the discrepancies with regard to the cheque number and in the address of " UTI Investors Services Limited" .
22. PW14 Sh. Kush Mohey, Assistant Manager in reconciliation Cell of Accounts Department of UTI Assets Management Company (AMC) in February 2003, has generally deposed about working of UTI, its schemes, the procedure followed by them and the two accounts of UTI in Central Bank of India.
23. PW17 Sh. Kiran Kumar Ved, posted as Vice President, Vigilance Department, UTI Assets Management Company at Corporate Office, Mumbai in 2003 has deposed about functioning of UTI, the two reports dated 13-12-2002, Ex.PW5/2 and Ex.PW5/5, the three cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9 being fake, reasons thereof and his submitting a report to President, Vigilance after conducting internal inquiry, wherein negligence of about seven officials was highlighted.
24. PW16 Sh. Sudhakar Shetty, Branch Manager, Vijaya Bank, Gorakhpur in July, 2001, has deposed about handing over Account Opening Form, Mark PW16/2, Specimen Signature Card, Mark PW16/2, statement of account of saving bank account No. 84741, Mark PW16/4, credit voucher, dated 12-11-2001, Mark PW16/5 and three debit vouchers dated 06-12-2001, 31-12-2001 and 10-01-2002, Mark PW16/6 to Mark PW16/8, all in respect of accused No. 2, Mohd. Amin, to the CBI in February 2004, vide seizure memo, dated 20-02-2004, Mark PW16/1.
25. PW12 Dr. B.A. Vaid is GEQD, Shimla who has testified about receiving documents of this case, inter-alia, vide letters dated 25-05-2004 and 13-08-2004. He stated that the documents pertaining to this case received by him were Q19 and Q77 on EX.PW2/8, Q20 and Q78 on EX.PW2/6, Q79 and Q21 on EX.PW2/9, Q408 and Q409 on EX.PW2/2, Q410 and Q411 on EX.PW12/A, Q412 and Q413 on EX.PW2/5, Q414 on EX.PW2/7, Q415 on EX.PW2/11, Q416 on EX.PW2/10, Q417 and Q418 on EX.PW2/16, Q421 and Q422 on EX.PW2/17 and Q419 and Q420 on EX.PW2/18. He further deposed that the standard writing of person relating to this case received by them were :-
(i) A-82 and 82-A on both sides of EX.PW12/A which are the admitted genuine signatures purported to be of one Rameshwar Tiwari, A-83 and A-84 on both sides of Ex.PW12/B which are the admitted genuine signatures purported to be of one Rameshewar Tiwari, A-85 and A-86 on both sides of Ex.PW12/C which are the admitted genuine signatures purported to be of one Rameshewar Tiwari and A-87 and A-88 on both sides of Ex.PW12/D which are the admitted genuine signatures purported to be of one Rameshewar Tiwari,
(ii) S-425 to S-438, S-438A and S-439 to S-512, which are specimen writing purported to be of one Shri Mohd. Amin.
26. PW12 Dr. B.A. Vaid further deposed that after careful and thorough examination of the documents of this case, he came to the conclusion mentioned in para 11 of his opinion No. CX-207/2004 dated 30-06-2004, EX.PW12/F and in para No. 2 of his opinion No. CX-207/2004 dated 30-08-2004, EX.PW12/G. He stated that the aforesaid opinions are based on the reasons, EX.PW12/H and EX.PW12/J. He further stated that the documents, opinions and reasons were sent to SP, CBI, EOW, B Wing, New Delhi vide letter dated 15-07-2004, Ex.PW12/K and dated 04-10-2004, EX.PW12/L. He also deposed that the documents of this case were photographed by the Govt. of India photographer under his supervision and guidance for the purpose of record. The forwarding letter of SP, CBI, EOW-II, New Delhi dated 25-05-2004 is Ex.PW12/M and letter dated 13-08-2004 is Ex.PW12/N.
27. PW19 Sh. P.L. Chaurasia, initial IO, inter-alia, deposed about seizing various documents pertaining to Account Numbers 10093 and 10098 of UTI from Sh. Hari Kishan vide seizure memo, dated 16-06-2003, Ex.PW11/H. He had also received letter dated 17-05-2004, Ex. PW 11/J from AGM, Central Bank of India. He further deposed about seizing forged cheques of UTI vide seizure memo dated 03-06-2003, Ex. PW 19/B. He had also seized Account Opening Forms and other documents from PNB, Branch Amaon, District Kaimur, where accused Rameshwar Tiwari had opened an account in an impersonated name of Rameshwar Singh and deposited three forged cheques, vide seizure memo dated 14-07-2003, Ex. PW 2/1. Vide letter dated 27-07-2003, Ex.PW2/20, Sh. Brahmdev Yadav, Manager, PNB, had forwarded the Statement of Account of Saving Bank Account No. 2788 of accused Rameshwar Singh. He further testified that certain documents of UTI were seized by him vide seizure memo dated 07-10-2003, Ex.PW19/C. He has also seized certain documents from Sh. Jagjit Singh, Branch Manager, UTI Investors Pvt. Ltd., Rajendra Place, New Delhi vide seizure memo dated 04-11-2003, Ex.PW19/3. Thereafter he had seized documents from Vijay Bank, Gorakhpur, where account of accused Mohd. Amin was being maintained, vide seizure memo dated 20-02-2004, Ex.PW19/E. He had also received certain documents by post from Central Bank of India vide letter dated 17-05-2004, Ex.PW11/J of Sh. H.K. Verma, AGM, Central Bank of India and certain documents from Sh. R.K. Setia, Manager, Central Bank of India, NBO, New Delhi vide his letter dated 16-06-2004, Ex.PW19/F.
28. PW19 Sh. P.L. Chaurasia further deposed that on 25-05-2004, he had sent documents for examination by the GEQD vide his letter, Ex. PW 12/M. He had received the opinion, Ex.PW12/F of the GEQD. He also testified that accused Mohd. Amin was arrested by him and his specimen signatures were obtained and sent to the GEQD vide letter dated 13-08-2004, Ex. PW 12/10 which was signed by Shri D.K. Chaudhary, SP, CBI at point A. He had received opinion, Ex.PW12/G, and reasons, Ex.PW12/L from the GEQD.
29. PW20 Insp. Ajit Singh, IO, who filed the Chargesheet, testified that he had obtained sanction order dated 14-12-2004, Ex.PW1/1 from Head Office of PNB. After obtaining sanction, he had prepared Chargesheet, EX.PW20/A and filed the same in the Court. Ld. Special P.P. for the CBI closed prosecution evidence on 17-11-2012.
Statements of Accused Persons under Section 313 Cr.P.C.
30. Statement under Section 313 Cr.P.C. of accused No. 3, Sunil Kumar Tiwari was recorded on 04-12-2012 and 05-12-2012 and those of accused No. 1, Rameshwar Tiwari and accused No. 2, Mohd. Amin were recorded on 15-12-2012. In their statements, accused persons have generally denied the incriminating evidence that has come against them.
31. Accused No. 1, Rameshwar Tiwari also stated that he has been falsely implicated in the case because of similarity of his name with Rameshwar Singh. He does not know and has never impersonated as Rameshwar Singh. He has never gone to PNB, Amaon Branch. He further stated that he has gone to Hon'ble High Court of Delhi seeking protection from harassment by local police, who stated that they had been sent by CBI. As a counter blast to his going to the Hon'ble High Court, CBI has falsely implicated him.
32. Accused No. 2, Mohd. Amin also stated that he has been falsely implicated without any basis. He stated that during investigation, Sh. P.L. Chaurasia was annoyed with him because when he came for arrest, he did not behave properly and he i.e. accused opposed his behavior. During journey to Delhi, Sh. P.L. Chaurasia was threatening and torturing him which he opposed. Therefore, he has been falsely implicated.
33. Accused No. 3, Sunil Kumar Tiwari further stated that he had opened account of Rameshwar Singh after fulfilling all the banking requirements. The dividend warrants which were deposited were prima facie genuine and their revalidation was authenticated by the UTI with their seal. These cheques were payable by Central Bank of India and he has accordingly sent these cheques to their main Branch i.e. PNB, Sasaram Branch for collection and clearance. When these instruments were cleared by Central Bank of India, the credit of the same was received by PNB, Sasaram Branch and the amount was transferred to PNB, Amaon Branch. On receipt of realization advice, the amount was credited to the account of Rameshwar Singh. He has not favored anybody by departing from the bank rules and has not even heard the name of Mohd. Amin prior to coming to this court.
34. During his statement under Section 313 Cr.P.C., accused No. 2, Mohd. Amin opted to lead evidence of an expert witness in his defence. His application, dated 22-12-2012 for obtaining photographs of the questioned documents and handwriting of the accused was allowed vide order, dated 07-01-2013. However, after availing sufficient opportunity to examine witness in his defence, he closed his evidence, without examining any witness, on 26-02-2013.
35. I have heard Sh. Harish Kumar Gupta, Ld. Special P.P. for CBI, Sh. K.K. Sharma, Ld. counsel for accused No. 1, Rameshwar Tiwari and accused No. 3, Sunil Kumar Tiwari and Ms. Rebecca John, Ld. Senior counsel and Sh. K.K. Jha, Ld. counsel for accused No. 2, Mohd. Amin at length and have also perused the record.
Arguments on behalf of CBI
36. Sh. Harish Kumar Gupta, Ld. Special P.P. has argued that PW1 Sh. N. Jayraman has proved the sanction order dated 14-12-2004, Ex.PW1/1 in respect of accused No. 3, Sunil Kumar Tiwari. PW2 Sh. Brahm Dev Yadav and PW3 Sh. Hemant Kumar Jha who were working in PNB, Amaon Branch have proved opening of SB account No. 2788 in the name of Rameshwar Singh, wherein three forged cheques bearing No. 5249, 5248 and 5251, Ex.PW2/6, Ex.PW2/8 and Ex.PW2/9 respectively were deposited and after credit of the cheque amounts to the said account, the same was withdrawn vide withdrawal slips, Ex.PW2/16, Ex.PW2/17 and Ex.PW2/18. It is further argued that PW4 Sh. Kant Prasad Sinha, PW6 Sh. Kanwar Lal Garg, PW8 Sh. Raj Kumar Setia, PW9 Sh. K.L. Arora, PW10 Sh. K.L. Arora and PW11 Sh. Hari Krishan Verma who were working with Central Bank of India have proved the two accounts bearing numbers 10093 and 210098 maintained by UTI and passing of the three cheques Ex. PW 2/6,PW 2/8 and PW 2/9. He further argued that PW5 Sh.Samya Sarkar, PW7 Sh. Prakash Chand Gupta, PW13 Sh. Shashank Senapati, PW14 Sh. Kush Mohey, PW15 Sh. Satish Kumar Dogra, PW17 Sh. Kiran Kumar Ved and PW18 Sh. P.B. Vijayaraghavan who were working in UTI have proved the complaint, dated 14-05-2003, Ex.PW5/1, reports on fraud cases, dated 13-12-2002, Ex.PW5/2 and Ex.PW5/5 and that the cheques, Ex.PW2/6, Ex.PW2/8 and Ex.PW2/9 were forged and not issued by UTI. He also argued that PW16 Sh. Sudhakar Shetty who was working as Branch Manager, Vijaya Bank, Gorakhpur has proved handing over of documents pertaining to account of accused No. 2, Mohd. Amin to Insp. P.L. Chaurasia and PW12, Dr. B.A. Vaid has proved the signatures of accused No. 1, Rameshwar Tiwari and handwriting of accused No. 2, Mohd. Amin on the forged cheques. He further contends that PW19 Sh. P.L. Chaurasia, the main IO, has proved various aspects of investigation conducted by him and PW20 Insp. Ajit Singh, the final IO has proved the Chargesheet, Ex.PW20/A. During the arguments, Ld. Special P.P. also submitted that photograph on Ex.PW2/2 was not of accused Rameshwar Tiwari but photograph of some other person had been used in order to deceive.
37. Ld. Special P.P. has relied upon Chaman Lal & Ors. Vs. State of Punjab and Anr., AIR 2009 SC 2972, to argue that direct evidence to prove conspiracy is rarely available and therefore, the circumstances proved have to be considered to decide about the complicity of the accused. He has also relied upon Krishna Mochi And Others Vs. State of Bihar, 2002, AIR 1965 to contend that some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. He has also relied upon Jakki @ Selvaraj And Anr. Vs. State Rep. by The IP, Coimbatore (Appeal (Cri.) 205 of 2007, decided by the Hon'ble Supreme Court of India on 14-02-2007), to submit that it is open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. He has also relied upon Murari Lal Vs. State of M.P., AIR 1980 SC 531, Ravichandran Vs. State, (2001) 11 SCC 120, Jaipal Vs. State of NCT ( Criminal Appeal No. 137 of 1998, decided on 05-07-2011 by Hon'ble High Court of Delhi) and Alamgir Vs. State (NCT, Delhi) (Appeal (Criminal) 202 of 2001, decided on 12-11-2002 by the Hon'ble Supreme Court) to argue that conviction of an accused can be based upon the sole evidence of an expert witness. Ld. Special P.P. thus submits that prosecution has proved its case against all the accused persons beyond a reasonable doubt and they be convicted accordingly.
Arguments on behalf of Accused No. 1, Rameshwar Tiwari
38. Sh. K.K. Sharma, Ld. counsel for accused No. 1, Rameshwar Tiwari and accused No. 3, Sunil Kumar Tiwari has argued that prosecution has not led any evidence to prove the conspiracy between the three accused persons. All the three accused persons are from different places. Accused No. 1, Rameshwar Tiwari has not opened the account in question at PNB, Amaon Branch. No witness has stated that accused No. 1, Rameshwar Tiwari ever visited PNB, Amaon Branch. PW3 Sh. Hemant Kumar Jha who is the Cashier, would have known the Account Holder but he has also not identified accused No. 1, Rameshwar Tiwari. Rather, during his cross- examination, he stated that the Account Holder whose photograph has been pasted on the Account Opening Form, Ex.PW2/2 was present at the time of opening of account. Ld. Counsel contends that a bare look at the photograph pasted on the Account Opening Form, Ex.PW2/2 would show that the same is not of accused No. 1, Rameshwar Tiwari. Accused No. 1, Rameshwar Tiwari in his statement under Section 313 Cr.P.C. has filed copies of his Voter I-Card and Ration Card pertaining to the year 2001 and the photographs thereon are entirely different from the photograph pasted on Ex.PW2/2. He further argues that no forged documents or instruments for forgery have been recovered from any accused person. PW19 Sh. P.L. Chaurasia, IO, during his cross- examination has stated that specimen signatures of accused No. 1, Rameshwar Tiwari were not taken. He further argued that so called admitted handwriting of accused No. 1, Rameshwar Tiwari, i.e. Ex.PW12/A, Ex.PW12/B, Ex.PW12/C and Ex.PW12/D have not been proved as no witness from SBI, Gomia has been examined by the prosecution. He thus pleads that the said accused be acquitted.
Arguments on behalf of Accused No. 3, Sunil Kumar Tiwari
39. With regard to accused No. 3, Sunil Kumar Tiwari, Sh. K.K. Sharma, Ld. Counsel has argued that PW1 Sh. N. Jayraman during his cross-examination, testified that the Branch Manager has to establish identity of Account Holder on the basis of documents furnished by the applicant and in the present case, identity of the Account Holder was duly established. Ld. Counsel contends that the Introducer Sh. Fateh Narain was holding Account in the same bank and had long track record. Therefore, there was no irregularity committed by accused No. 3, Sunil Kumar Tiwari and thus, the sanction for prosecution was not proper. He further argued that PW2 Sh. Brahm Dev Yadav has stated that Account No. 2788 was not opened in his presence. Infact, no witness has stated that the said account was opened by accused No. 1, Rameshwar Tiwari. The Introducer who could have thrown light on the same has expired. It is argued that both PW2 Sh. Brahm Dev Yadav and PW3 Sh. Hemant Kumar Jha during their cross- examination stated that there was no discrepancy while opening Account in question. It is further argued that the forged cheques in question were duly cleared for payment by Central Bank of India and when the Officials of Central Bank of India and UTI could not make out whether cheques in question were genuine or not, how could the same be expected from accused No. 3, Sunil Kumar Tiwari who had no concern with the cheques in question except to forward them to Central Bank of India. He thus submits that as a Bank Manager, accused No. 3, Sunil Kumar Tiwari has not deviated from any procedure, he made payments only after cheques were cleared by Central Bank of India and thus he was innocent.
Arguments on behalf of Accused No. 2, Mohd. Amin @ Dr. Bhola
40. Sh. K.K. Jha, Ld. Counsel for accused No. 2, Mohd. Amin has argued that there has been no investigation as to who got the fake cheques printed. In the Chargesheet, there is no specific allegation against accused No. 2, Mohd. Amin. During the trial, the only specific allegation which has come against accused No. 2, Mohd. Amin is that he has put the dates on the three cheques for their revalidation. However, there is no evidence to show criminal conspiracy between the three accused persons. There is no evidence that the three cheques in question were forged by accused No. 2, Mohd. Amin. The reports on fraud cases, Ex.PW5/2 and Ex.PW5/3 reveal lapses on the part of Officials of Central Bank of India but no action was taken against them. In the alleged revalidation of dates in the three cheques, Ex.PW2/6, Ex.PW2/8 and Ex.PW2/9, no signature has been put. Even in normal banking, no cheque can be encashed without signature of the person issuing the cheque if the date is revalidated. According to PW8 Sh. Raj Kumar Setia, PW13 Sh. Shashank Senapati and PW18 Sh. P.B. Vijayaraghavan, the cheques in question should not have been encahsed because putting date, without signatures, is not a valid revalidation. He contended that the cheques in question have already been forged and manual revalidation by putting a date would have made no difference since the same is not as per procedure of the UTI. It is further argued that there is no evidence of any intention to cheat on the part of accused No. 2, Mohd. Amin. There is also no evidence that accused No. 2, Mohd. Amin handed over the cheques to accused No. 1, Rameshwar Tiwari.
41. Sh. K.K. Jha further argued that according to PW19 Sh. P.L. Chaurasia, no cheque or incriminating article was seized from accused No. 2, Mohd. Amin. The specimen writing of accused No. 2, Mohd. Amin was taken during remand period by asking him to repeatedly write in the manner in which date of revalidation has been written on the disputed cheques. Shri A.K. Shukla and Sh. M.K. Aich, who are alleged to be independent witnesses of obtaining specimen handwriting of Accused No. 2, Mohd. Amin and could have supported his case, have neither been cited as a witness nor examined by the prosecution. Thus, the opinion of Handwriting Expert cannot be relied upon. During his cross-examination, PW19 Sh. P.L. Chaurasia stated that Brighu Nath Singh and Farooq have named accused No. 2, Mohd. Amin but the same is not mentioned in the Chargesheet. He has also argued that the report, Ex.PW12/G is vague and incomplete as the photographs admittedly taken by PW12 Dr. B.A. Vaid were not produced along with the report. He also contends that the said report also cannot be relied upon in view of the manner in which specimen signatures of the accused were obtained and in any case opinion of Handwriting Expert is not conclusive proof. It is also argued that even if it is presumed, for arguments sake only, that accused No. 2, Mohd. Amin has put date on the cheques, Section 464 of the IPC is not attracted, since no evidence has been led by the prosecution to show that the accused acted dishonestly or fraudulently. He has relied upon Parminder Kaur Vs. State of Uttar Pradesh and Another, (2010) 1 SCC 322 in this regard.
42. Ms. Rebecca John, Ld. Senior Counsel also advanced arguments on behalf of accused No. 2, Mohd. Amin on 11-04-2013 and 04-05-2013. She submitted that the only allegation against accused No. 2, Mohd. Amin is the alleged manual revalidation of dates on the cheques in question and the only evidence against him is the opinion, Ex.PW12/G of the handwriting Expert. She argues that the opinion of Handwriting Expert is not sacrosanct. She further argued that the opinion of Handwriting Expert is only corroborative and not substantive evidence. She has relied upon Shashi Kumar Banerjee and Ors. Vs. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal Vs. The State of Punjab, (1977) 2 SCC 210, and S. Gopal Reddy Vs. State of A.P., (1996) 4 SCC 596 in this regard. She has also relied upon Amarjit Singh Vs. State of U.P. (1998) 8 SCC 613, to argue that if the identity of the documents on which Expert gave his opinion is not free from doubt, the expert opinion cannot be relied upon.
43. She has further argued that the basis of determination of IO that accused No. 2, Mohd. Amin was involved was information from some other accused in some other cases who have neither been examined in this case nor have been cited as witnesses in this case. The specimen handwriting/signatures of accused No. 2, Mohd. Amin were allegedly taken in presence of two witnesses. Even those witnesses have not been examined. Therefore, the best evidence, according to the prosecution story, has been withheld by the CBI. She has relied upon Bhugdoman Gangaram and others Vs. State of Gujarat, AIR 1983 SC 906 in this regard. She also relied upon Amit Pratap & Anr. Vs. State, (Delhi) 2012 (1) JCC 86 to contend that no conviction can be based on the mere disclosure statement of co- accused.
44. Ms. Rebecca John. Ld. Senior counsel also argued that there is no mens rea of accused No. 2, Mohd. Amin. No witness, except PW12 Dr. B.A. Vaid or the IO has named accused No. 2, Mohd. Amin. There is no bank witness or other witness who stated having seen accused No. 2, Mohd. Amin in company of accused No. 1, Rameshwar Tiwari or accused No. 3, Sunil Kumar Tiwari or in the bank. She has relied upon Saju Vs. State of Kerala, (2001) 1 SCC 378 and Sherimon Vs. State of Kerala, (2011) 10 SCC 768, to contend that to prove the charge of criminal conspiracy, it has to be proved that all the accused had the intention and they had agreed to commit the crime. She has also relied upon P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, to argue that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. She further relied upon State of kerala Vs. P. Sugathan and Another, (2000) 8 SCC 203, to argue that the circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
45. Ms. Rebecca John, Ld. Senior Counsel also argued that evidence of Dr. B.A. Vaid was post incident. But there is no evidence prior to incident connecting accused No. 2, Mohd. Amin with the offence. Lastly, she has argued that law laid down by the Constitutional Bench of Hon'ble Supreme Court in Shashi Kumar Banerjee (supra) is binding on all the Courts in India including any Subsequent Bench of the Hon'ble Supreme Court of co-equal or lesser strength. She has relied upon Central Board of Dawoodi Bohra Vs. State of Maharashtra and Another, (2005) 2 SCC 673 in this regard.
Appreciation of Evidence
46. PW2 Sh. Brahm Devi Yadav and PW3 Sh. Hemant Kumar Jha have proved the cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9 for Rs.25,000/-, Rs.25,000/- and Rs.23,875/-, respectively, being deposited in Saving Bank Account No. 2788 vide slips Ex.PW2/7, Ex.PW2/10 and Ex.PW2/11, bill for collection, Ex.PW2/12 being sent, amount of Rs. 73,875/- being credited in the said account and withdrawal of Rs.50,000/-, Rs.21,900/- and Rs.1,000/- vide withdrawal slips Ex.PW2/16, Ex.PW2/17 and Ex.PW2/18 respectively. PW4 Sh. Kant Prasad Sinha, PW8 Sh. Raj Kumar Setia, PW10 Sh. K.L. Arora and PW11 Sh. Hari Krishan Verma have proved the clearing of the said cheques. PW7 Sh. Prakash Chand Gupta, PW13 Sh. Shashank Senapati, PW15 Sh. Satish Kumar Dogra, PW17 Sh. Kiran Kumar Ved and PW18 SH. P.B. Vijayaraghavan have proved that the cheques in question were fake and forged. The above position has also not been disputed by the accused persons. It has thus been established that the cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9 were forged, the same were encashed through a fictitious Account No. 2788 in PNB, Amaon Branch and that UTI was cheated of Rs.73,875/-.
47. The prosecution has tried to establish its case against the accused persons on the basis of circumstantial evidence. It is well settled that to prove a charge of conspiracy, it has to be proved that all the accused had the intention and they agreed to commit the crime. Since direct evidence in case of conspiracy is rarely available, the prosecution is required to prove the complete chain of conspiracy against the accused persons. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. In this regard, reference can be made to Saju Vs. State of Kerala (supra), Sherimon Vs. State of Kerala (supra) and P.K. Narayanan Vs. State of Kerala (supra). It is also well settled that a mere suspicion, however strong, that accused has committed a crime, cannot take place of proof. Further, in a catena of judgments it has been emphasized that where the prosecution case rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and the chain of evidence should be so complete as to rule out any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances must show that in all human probability, the act must have been done by the accused. In this regard, reference can be made to Shivaji Saheb Rao Bobde v. State of Maharashtra, AIR 1973 SC 2622. It is also well settled that if on the basis of evidence led by prosecution, two views are possible, one pointing to the guilt of the accused and other to his innocence, the one in favour of the accused must be accepted. In this regard, reference can be made to Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 and Baboo Ram, v. State, 1996 Cri LJ 483.
In N Rajendra Prasad Bhat v. State, 1996 Cri LJ 257, the Hon'ble Karnataka High Court summarized the law laid down by the Hon'ble Supreme Court in this regard as follows :
" In a case which is based on circumstantial evidence, the circumstances alleged against the accused must be conclusively established and the chain of circumstances must be so closely knit so as to exclude all the reasonable hypothesis of the innocence of the accused. The evidence must point only to the guilt of accused and if the evidence leads to two interpretations, the interpretation in favour of the accused must be given effect to."
Let us now advert to appreciation of evidence in respect of each accused.
Accused No. 1 Rameshwar Tiwari
48. The allegations against accused No. 1, Rameshwar Tiwari are that he has opened Saving Bank Account No. 2788 by impersonating as Rameshwar Singh, deposited the forged cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9, got them encashed and withdrew amount of Rs.73,875/-. In his statement under Section 313 Cr.P.C., accused No. 1, Rameshwar Tiwari has denied the above allegations and stated that he has been falsely implicated. According to him, he does not know any Rameshwar Singh, he has never impersonated as Rameshwar Singh and has never gone to PNB, Amaon Branch.
49. From the evidence led by prosecution, it can be seen that no witness has identified accused No. 1, Rameshwar Tiwari as the person who opened Saving Bank Account No. 2788 in PNB, Amaon Branch. PW2 Sh. Brahm Dev Yadav and PW3 Sh. Hemant Kumar Jha, who were the only witnesses from PNB, Amaon Branch have not identified accused No. 1, Rameshwar Tiwari as the Account Holder of Saving Bank Account No. 2788. No TIP of the said accused was conducted. The Account Opening Form, Ex.PW2/2 and specimen signatures card, EX.PW2/3, allegedly bear photograph of Account Holder at point D. During his cross-examination, PW3 Sh. Hamant Kumar Jha testified that Account Holder whose photo is pasted on Account Opening Form, Ex.PW2/2 was present at the time of opening of account and that he can identify that person if he comes before him. However, he has not identified accused Rameshwar Tiwari, who was present in the Court on the date i.e. 02-04-2007, when PW3 Sh. Hemant Kumar Jha was cross-examined. PW19 Sh. P.L. Chaurasia has, during his cross-examination, deposed that he has verified that the photograph on Ex.PW2/2 was of Rameshwar Tiwari from PNB, Amaon. However, he does not remember the name of the bank Official who had verified the said photograph to be of Rameshwar Tiwari. He is attributing his information to some unknown bank officer. Such statement being hearsay is inadmissible. Moreover, during final arguments, Ld. Special P.P. also candidly submitted that the photograph on Ex.PW2/2 was not of accused No. 1, Rameshwar Tiwari and that photograph of some other person has been used in order to deceive. It can also be observed that the photograph pasted on the Account Opening Form, dated 08-11-2001, Ex.PW2/2 and the Specimen Signature Card Ex.PW2/3, ex-facie, does not appear to be of accused No. 1, Rameshwar Tiwari. In his statement under Section 313 Cr.P.C., accused No. 1, Rameshwsar Tiwari has tendered photocopy of his Voter I-Card, Mark D-1 and photocopy of his Ration Card, Mark D-2 pertaining to the year 2001 and bearing his photographs which appear to be of his younger days. The same also do not match with the photographs pasted on Account Opening Form, Ex.PW2/2 and the Specimen Signature Card Ex.PW2/3.
50. The prosecution is also relying upon testimony of PW12 Dr. B.A. Vaid and his report, Ex.PW12/F to contend that the questioned signatures/writing i.e. Q77, Q78 and Q79 on the cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9, and Q400 to Q407, Q409, Q414 to Q422 on Account Opening Form, Ex.PW2/2, and deposit slips, Ex.PW2/7, Ex.PW2/10 and Ex.PW2/11 have been written by the same person whose handwriting is A82, A82A, A83 to A88 on Ex.PW12/A, Ex.PW12/B, Ex.PW12/C and Ex.PW12/D, which are the Account Opening Form, cheque No. 112759 dated 27-02-1999, cheque No. 907130, dated 02-09-2000 and cheque No. 907131, dated 20-01-2001 purported to be of the Saving Bank Account of accused No. 1, Rameshwar Tiwari in State Bank of India, Gomia. Ld. defence counsel, Sh. K.K. Sharma has argued that for relying upon the opinion of Handwriting Expert, both the questioned documents as well as the admitted/specimen handwriting must be proved but in the instant case, the above so called admitted handwritings of accused Rameshwar Tiwari have not been proved. PW12 Dr. B.A. Vaid has stated about the handwriting on Ex.PW12/A, Ex.PW12/B, Ex.PW12/C and Ex.PW12/D to be admitted genuine signatures purported to be of one Rameshwar Tiwari. The above documents were sent to CFSL vide letter, Ex.PW12/M. However, no cogent evidence has been brought on record as to from where and when the IO has obtained the said documents. No witness from State Bank of India, Gomia has either been cited or examined by the prosecution. There is no seizure memo with respect to seizure of the said documents. It is well settled that for considering the evidence of Handwriting Expert, it is essential to prove admitted or specimen handwriting and the evidence of a handwriting expert is inadmissible if there is no comparison with handwriting proved beyond doubt or admitted in open court in the presence of the party affected.
In view of the above, it is considered that the documents, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C and Ex.PW12/D have not been proved by the prosecution and, therefore, expert opinion on the same, being inadmissible, cannot be considered and relied upon.
51. Even otherwise, the direct evidence of PW3 Sh. Hemant Kumar Jha regarding photograph on Account Opening Form, Ex.PW2/2 and Specimen Signature Card, Ex.PW2/3 being that of Account Holder of Saving Bank Account No. 2788 and the said photograph being not of accused No. 1, Rameshwar Tiwari goes against the prosecution.
Accused No. 2, Mohd. Amin
52. There is no specific allegation against accused No. 2, Mohd. Amin in the Chargesheet filed by the CBI. Ld. Special P.P. has alleged that the writings " 05/01/2002" written on the forged cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9, are in the handwriting of accused No. 2, Mohd. Amin and that the same has been proved by PW19 Sh. P.L. Chaurasia and PW12 Dr. B.A. Vaid. The prosecution is relying only upon the opinion evidence, there being no direct evidence against accused No. 2, Mohd. Amin. PW19 Sh. P.L. Chaurasia has deposed that accused No. 2, Mohd. Amin was arrested by him. His specimen signatures were obtained and were sent to the GEQD vide letter dated 13-08-2004, Ex.PW12/10 (Ex.PW12/N) and he has obtained the opinion of GEQD along with the reasons which are Ex.PW12/G and Ex.PW12/L. PW12 Dr. B.A. Vaid has also testified that they have received standard writing of the concerned person i.e. S-425 to S-438, S-438A and S-439 to S-512, purported to be specimen writing of Sh. Mohd. Amin, Ex.PW12/E. In the opinion, Ex.PW12/G, it is stated that the questioned writing, Q-1 to Q-25 have been written by the same person who has written S-425 to S-438, S-438A and S-439 to S-460, S-473, S-478, S-479, S-480, S-487 to S-496, S-503, S-507, S-509, S-511. It is further opined that it has not been possible to express any opinion on the rest of the items on the basis of material supplied. However, no reason has been given as to why it was not possible to express any opinion on the rest of the items. There is no other incriminating evidence led against accused No. 2, Mohd. Amin.
53. It is pertinent to note that PW19, Sh. P.L. Chaurasia has also deposed about seizing documents from Vijaya Bank, Gorakhpur where Account of accused No. 2, Mohd. Amin was being maintained, vide seizure memo, dated 20-02-2004, Ex.PW19/E from PW16 Sh. Sudhakar Shetty, Senior Branch Manager, Vijaya Bank. PW16 Sh. Sudhakar Shetty has also deposed about handing over Account Opening Form, Mark PW16/2, Specimen Signature Card, Mark PW16/3, Statement of Account of Saving Bank Account No. 8474, Mark PW16/4, credit voucher, dated 12-11-2001, Mark PW16/5 and three debit vouchers, dated 06-12-2001, 31-12-2001 and 10-01-2002, Mark PW16/6 to Mark PW16/8 respectively, all in respect of accused No. 2, Mohd. Amin. In his statement under Section 313 Cr.P.C., accused No. 2, Mohd. Amin has stated that when he went to Vijaya Bank, Gorakhpur, he was told by the Branch Manager that CBI Officials had taken photocopies of documents relating to his account. The above documents containing admitted writing of accused No. 2, Mohd. Amin i.e. A89 to A96 were sent vide letter dated 25-05-2004, Ex.PW12/M of CBI to GEQD, Chandigarh and opinion of Handwriting Expert thereon was sought. The GEQD has given report dated 30-06-1994, Ex.PW12/F. However, no opinion was given on the aforesaid admitted handwriting. While giving report in respect of other standard handwriting, in the report Ex.PW12/F, it was stated that it has not been possible to express any opinion on rest of the items on the basis of material supplied.
54. It is also pertinent to note that the specimen handwriting, Ex.PW12/E of accused No. 2, Mohd. Amin was allegedly taken on 28-07-2002 in the presence of Sh. A.P. Shukla, Senior Manager, Union Bank of India and on 29-07-2002 in the presence of Sh. M.K. Aich, Manager, Central Bank of India. However, neither of these independent witnesses have either been cited or examined by the prosecution. No explanation has been given by the CBI for not citing them as witnesses. It has remained inexplicable as to what was the purpose of allegedly making them as witnesses if they were not to be cited or examined during the trial.
55. The above circumstances give force to the contention of accused No. 2, Mohd. Amin that during his remand, the IO took his handwriting repeatedly on number of papers for a number of days by asking him to match his writing with that on the cheques in question. It has also been argued on behalf of accused No. 2, Mohd. Amin that that it is easier to make a person copy/match/imitate handwriting of another person, comprising only of figures in contradistinction to words or sentences. Ld. Counsel has contended that in the instant case, accused No. 2, Mohd. Amin was forced, during his remand period, to match his writing with that on the cheques, comprising only the figures i.e. " 05/01/2002" . The above contention appears plausible in the facts of the present case.
56. Moreover, apart from the opinion of PW12 Dr. B.A. Vaid, there is no other incriminating evidence against accused No. 2, Mohd. Amin. PW19 Sh. P.L. Chaurasia has stated that the cheques in question were not encahsed by accused No. 2, Mohd. Amin. As argued by Sh. K.K. Jha, Ld. Counsel for accused No.2, Mohd. Amin, there is no evidence of any gain by accused No. 2, Mohd. Amin for putting the date of revalidation on cheques Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9., nothing incriminating has been recovered from the said accused, there is no evidence to the effect that he has ever earlier met accused No. 1, Rameshwar Tiwari or accused No. 3, Sunil Kumar Tiwari and no person who told IO that accused No. 2, Mohd. Amin has given forged cheques to accused No. 1, Rameshwar Tiwar has been examined. Thus there is no evidence to corroborate the Handwriting Expert's opinion.
57. In Shashi Kumar Banerjee And Ors. Vs. Subodh Kumar Banerjee (supra), a Constitutional Bench of the Hon'ble Supreme Court held, " Besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rerely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence."
In Magan Bihari Lal Vs. State of Punjab (supra), it was held, " It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law."
In S. Gopal Reddy Vs. State of A.P. (supra), it was held that the evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking independent and reliable corroboration.
58. In a catena of decisions, the Hon'ble Supreme Court has pointed out that it would be risky to found a conviction solely on the evidence of handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. In this regard, reference can also be made to Ishwari Pd. v. Md. Isa, AIR 1963 SC 1728; Fakhruddin v. State of M.P., AIR 1967 SC 1326; and Bhargav Kundalile Salunkhe Vs. State of Maharashtra, 1996, Cri LJ 1228. In Umed Chand Ramola v. State of Uttaranchal, 2006 Cri LJ 951, it was held that evidence of handwriting expert is not substantive evidence. It is only corroborative piece of evidence. In Vandavasi Karthikeya v. S. Kamalamma, AIR 1994 AP 102, it was held that the science of handwriting is not an exact science unlike the science of fingerprints. Even experts tend to commit errors in giving their opinions on the genuineness of the signatures and handwriting.
59. Further, as contended by Ld. Counsel for accused No. 2, Mohd. Amin, even if it is presumed, that the said accused has written the date '05-01-2002' on the cheques Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9, the same by itself, in the absence of any other link or corroborative evidence would not be sufficient to hold the accused liable under Section 467 IPC.
It is well settled that merely making of a false document does not amount to forgery. To constitute an offence of forgery, the existence, of mens rea, as required under Sections 463 and 464 IPC is a must. In Parminder Kaur Vs. State of Uttar Pradesh and Another, (2010) 1 SCC 322, the Honble Supreme Court also held that merely changing a document does not make it a false document. In the instant case, no evidence whatsoever has been led by the prosecution to show the circumstances under which accused No. 2, Mohd. Amin allegedly put the dates on the forged cheques or linking the accused with the conspiracy from where it could be inferred that the said accused had the intent as required under Section 463 IPC or that he acted dishonestly or fraudulently as required under Section 464 IPC or that he gained in any manner.
60. In view of the aforesaid facts and circumstances relying upon only the opinion of PW12 Dr. B.A. Vaid, without any corroboration, would not be safe.
Accused No. 3, Sunil Kumar Tiwari
61. The allegations against accused No. 3, Sunil Kumar Tiwari, a public servant, are that he, in conspiracy with accused No. 1, Rameshwar Tiwari, who is his cousin and other co-accused person, allowed, inter-alia, opening of account No. 2788 in PNB, Amaon, deposit of forged cheques and withdrawal of amount from the said account. Accused No. 3, Sunil Kumar Tiwari has admitted allowing the opening of the Saving Bank Account No. 2788, with the introduction of Sh. Fateh Narain Singh, deposit of the cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9 in the said account, sending the same for collection, credit of Rs.73,875/- in the said account and withdrawal of Rs.72,990/- vide withdrawal slips, Ex.PW2/16, Ex.PW2/17 and Ex.PW2/18. He has not denied his signatures on various bank documents. However, according to him, he had opened the account after fulfilling all the banking requirements. The cheques/dividend warrants which were deposited were, prima-facie, genuine and as per standard format and the revalidation was authenticated by the UTI with their seal. These cheques were payable by Central Bank of India and he had accordingly sent these cheques to their main Branch i.e. PNB, Sasaram Branch for collection and clearance. When these instruments were cleared/passed/ honoured by Central Bank of India, the credit of the same was received by PNB, Sasaram Branch and the amount was transferred to PNB, Amaon Branch. On receipt of realization advice, the amount was credited to the account of Rameshwar Singh. All this, he says, was done as per the rules of the bank.
62. There is no direct evidence that accused No. 3, Sunil Kumar Tiwari knew or conspired with other accused persons. No witness has stated that accused No. 1, Rameshwar Tiwari was cousin of accused No. 3, Sunil Kumar Tiwari or as to how they were related. Ld. Special P.P. is relying upon the sanction order dated 14-12-2004, Ex.PW1/1 to argue that the relation of accused No. 1, Rameshwar Tiwari and accused No. 3, Sunil Kumar Tiwari as cousin brothers has been proved. Ld. Defence counsel on the other hand, argued that it is merely an allegation but nobody has made any positive statement that accused No. 1, Rameshwar Tiwari was related to accused No. 3, Sunil Kumar Tiwari. In the sanction order, dated 14-12-2004, Ex.PW1/1, it is stated, " Whereas it is alleged that Sunil Kumar Tiwari S/O Shri Dhirendra Tiwary, r/o Vill. Barawa, PO &PS Mehnajpur, Distt:
Azamgarh (UP), presently working as Manager Scale-II at Punjab National Bank, Asnar Branch, Distt: Sidharth Nagar, U.P. (East U.P. Zone) while functioning as Branch Manager, PNB at Amaon Branch, Distt: Kaimur (also known as Bhabhua), Bihar during the period 2001 entered into criminal conspiracy with his cousin brother Rameshwar Tiwari, s/o Shri Rajnet Tiwari, R/o Village Barawa, PS Mehnajpur, District Azamgarh (UP) and Sh. Mohd. Amin alias Dr. Bhola R/o G2/71, Rail Vihar Colony, PS Chilluwatal, Gorakhpur (UP) and certain others........." (emphasis supplied) Thus it can be seen that in the sanction order, PW1, Sh. N. Jayraman has stated about the allegations regarding accused No. 3, Sunil Kumar Tiwari entering into criminal conspiracy with his cousin brother Rameshwar Tiwari. It starts with the words " Whereas it is alleged" . PW1 Sh. N. Jayraman in his testimony has not stated that accused No. 3, Sunil Kumar Tiwari was cousin of accused No. 1, Rameshwar Tiwari. No other witness has stated about the relation between accused No. 3, Sunil Kumar Tiwari and accused No. 1, Rameshwar Tiwari. Even otherwise, once prosecution has not been able to prove, beyond a reasonable doubt that it was accused No. 1, Rameshwar Tiwari who impersonated as Rameshwar Singh, opened account No. 2788, deposited the forged cheques, Ex.PW2/8, Ex.PW2/6 and Ex.PW2/9 in the said account at PNB, Amaon Branch and withdrew the amount, accused No. 3, Sunil Kumar Tiwari cannot be said to have entered into a conspiracy with the said accused.
63. PW2 Sh. Brahm Dev Yadav, during his cross-examination on behalf of the said accused, has stated that to his knowledge, there was no discrepancy on the face of record while opening a new account of a customer. PW3 Sh. Hemant Kumar Jha has also, during his cross-examination, stated that to his knowledge, there was no discrepancy while opening the new bank account of a customer. PW3 Sh. Hemant Kumar Jha further testified that the account holder whose photograph has been pasted on Ex.PW2/2 was present at the time of opening of account and that he could identify that person if he comes before him. However, it has not been proved by the prosecution that accused No. 1, Rameshwar Tiwari was in fact Rameshwar Singh who had opened Account No. 2788. The fact that a forged cheque, deposited by a customer, was sent for collection by accused No. 3, Sunil Kumar Tiwari, per-se, would not be sufficient to hold him guilty for conspiracy or for criminal misconduct under Section 13 (2) read with Section (1) (d) of the Prevention of Corruption Act, especially when the said cheques had been passed by Central Bank of India. Ergo, there exists a reasonable doubt regarding the involvement of accused No. 3, Sunil Kumar Tiwari.
64. It may also be observed that the first step towards execution of the conspiracy in this case would have been the printing or manufacturing of the cheques in question. No investigation has been brought on record on the aspect as to who has printed the cheques in question bearing fascimle signatures of the authorized signatories of UTI or when and where these were printed. Further, as per UTI witnesses, cheques with manual revalidation should not have been cleared. It has also not been brought on record as to how the cheques in question were cleared/passed. The investigation conducted thus, does not appear to be complete on all the material aspects of the conspiracy. In the facts and circumstances of this case, the judgments cited by Ld. Special P.P. are of no use to the prosecution.
65. In view of the aforesaid discussion, it is considered that the prosecution has not been able to prove its case against any accused beyond a reasonable doubt. Therefore, all the accused persons are acquitted of the Charges leveled against them.
Their bail bonds are cancelled and their sureties are discharged.
Announced in the Open Court today on 30th Day of May, 2013.
(Rakesh Syal) Spl. Judge, (PC Act) & (CBI) -03, Dwarka Courts, New Delhi (ra)