Delhi District Court
Criminal Case/432/1998 on 14 January, 2016
IN THE COURT OF SHRI SUSHIL KUMAR, METROPOLITAN
MAGISTRATE : WEST-05, TIS HAZARI COURTS, DELHI
FIR No. : 432/1998
P.S. : Tilak Nagar
Unique Case ID No. R0108621999
State
v.
1) Tirath Singh, S/o Sh. Kabar Singh,
R/o B-408 JJ Colony, Chokhandi,
New Delhi-110018.
2) Harvinder Singh (PO)
Date of institution of case : 09.12.1999
Date of reserving the judgment : 05.01.2016
Date of pronouncement of judgment : 14.01.2016
JUDGMENT
1. S. No. of the Case: 382/2/09.12.99 2. Date of Commission of Offence: January 1998 3. Date of institution of the case: 09.12.1999 4. Name of the complainant: Sh. Kewal Krishan Kaushal 5. Name of the accused: Tirath Singh 6. Offence complained or proved: 420/467/468/471 IPC FIR No. 432/98 1 of 11 PS Tilak Nagar 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 14.01.2016 BRIEF FACTS AND REASONS FOR DECISION
1. This is the prosecution of accused Tirath Singh pursuant to a charge sheet filed by the police under section 420/467/468/471/120B of Indian Penal Code, 1860 (hereinafter referred as IPC) subsequent to the investigation carried out them in FIR no. 432/98.
2. Filtering out unnecessary details, the case of prosecution is that in the month of January 1998, accused Tirath Singh along-with other accused persons namely Surjeet Singh and Harvinder Singh (since PO) hatched a criminal conspiracy to forge a cheque and withdraw money on such forged cheque by use of his saving bank account No. 2596 in SBI, Chokhandi Branch. That in pursuance of said conspiracy a cheque No. 085928 dated 15.01.98 for Rs.97,000/- drawn on SBI, S.A. Nagar, Mohali, Distt. Ropar (Punjab) was forged. Thereafter, on 22.01.1998, accused Tirath Singh presented the afore-mentioned cheque by dishonestly inducing the bank and the said cheque was credited to accused Tirath Singh's account. Accused Tirath Singh cheated the bank and withdrew a sum of Rs.70,000/- on 18.02.98 and a sum of Rs.26,300/- on 19.02.98. FIR against accused was lodged and he was arrested. It is pertinent to mention that one other accused namely Harvinder Singh was also arrested by police, however, he absconded later on and was declared Proclaimed offender. After FIR No. 432/98 2 of 11 PS Tilak Nagar completion of investigation, charge sheet against accused was filed in the Court u/s 420/467/468/471/120B IPC.
3. The copies of charge sheet and relevant documents were supplied to accused in compliance of Section 207 Cr.P.C.
4. Prima facie case was made out and charge for offences U/s 420/467/468/471/120B/34 IPC was framed against the accused on 22.07.2003 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed up for recording of prosecution evidence.
5. To prove its case, prosecution examined nine witnesses in all. Thereafter, PE was closed and it was followed by recording of statement of accused u/s 313 Cr.PC. All the incriminating evidence was put to accused to which he pleaded innocence and false implication. Accused did not wish to lead DE.
6. The Court has carefully perused the case record and have heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
7.Accused is indicted for offence u/s 420/467/468/471/120B/34 IPC which reads as under :
Section 420 IPC. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to FIR No. 432/98 3 of 11 PS Tilak Nagar deliver any property to any person, or to make, alter or destory the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a terms which may extend to seven years, and shall also be liable to fine. Section 467 IPC. Forgery of valuable security, will, etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or devidends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquaittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 468 IPC. Forgery for purpose of cheating. Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC. Using as genuine a forged document or electronic record.
Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if FIR No. 432/98 4 of 11 PS Tilak Nagar he had forged such document or electronic record. Section 120 B IPC. Punishment of criminal conspiracy.
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 34 IPC. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
8. It is manifest from afore-mentioned provisions that fradulent or dishonest inducement is one of the essential ingredient of the offence of cheating. The Hon'ble Supreme Court of India has observed in case titled as "Bishan Das v. State of Punjab and another", (2014) 15 SCC 242 that :-
"The essential ingredients to attract section 420 IPC are :
(i) cheating";
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being FIR No. 432/98 5 of 11 PS Tilak Nagar converted into a valuable security; and
(iii) mens rea of accused at the time of making the inducement.
9. The term 'Forgery' has been defined in section 463 of IPC. Making forged document is defined in section 464 IPC. Forgery is the false making of any written instrument for the purpose of fraud or deceit. So fraud is an essential ingredient of forgery. The various elements and forms of forgery are elaborated in the IPC in provisions between sections 466 to 471 IPC, which prescribe varying terms of punishment depending on the severity of the effects of the forgery. Forgery or fraud are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences from proved facts.
10. The present case has been initiated against accused Tirath Singh on a complaint made to police by PW-1 Sh. Kewal Krishan Kaushal, Manager, SBI, Chaukhandi Branch, Delhi. PW-1 has deposed that on 09.07.1998, he made a request to PS Tilak Nagar for lodging of FIR against accused Tirath Singh and others for committing fraud of Rs.97,000/-. That in the month of March 1998 perhaps the second week, he received telephonic call from SBI Branch SAS Mauhali that the cheque No. 085927 and same cheque book was not issued by the said Mohali Branch. That officials from that Bank also advised him to take precautions as this cheque is not issued from their branch. That then he verified the account No. 2598 of his branch and it revealed that this account is in name of one Tirath Singh (accused). That he further came to know from the record that another cheque No. 085928 dated 15.01.1998 for Rs.97,000/- drawn on SBI FIR No. 432/98 6 of 11 PS Tilak Nagar Mohali in favour of Tirath Singh and further it was revealed that after receiving the afore-mentioned amount of Rs.97,000/- from Mohali Branch to their branch, this amount was withdrawn on 18.02.1998 and 19.02.1998 respectively or Rs.70,000/- and Rs.26,300/- by Tirath Singh. That the proceeds of the cheque of Rs.97,000/- received by them on 13.02.1998 and credited to account of Tirath Singh on the same day. That on 30.09.1998 they received a negative confirmation from SBI Mohali with the remarks 'neither they have received the short collection number 398 nor paid the instrument in question'. That on sensing this fraud, they thoroughly verified their record and the withdrawal slip of Rs.70,000/- and Rs. 26,300/- also checked and they found that this amount is withdrawn by accused Tirath Singh. That after verifying the fraud committed by accused Tirath Singh, he also contacted accused Tirath Singh who confessed his guilt and he also admitted that he would returned the amount to Bank as one of his companion Harinder Singh cheated him. That the Ikrarnama is Mark A and the original is lying in the Bank. That the letter from Mohali Branch is Mark B.
11. The testimony of PW-1 is completely vague and excepting the bald allegation that the cheque was presented by accused Tirath Singh for encashment in his bank and that he had withdrawn a total sum of Rs. 86300/- from his bank account, nothing further has been deposed by him and there is no iota of evidence to indicate how accused Tirath Singh is involved in the so-called allegation of forgery. There is nothing in the testimony of any other prosecution witness which establishes that accused Tirath Singh had in fact forged the above-mentioned cheque. It alleged FIR No. 432/98 7 of 11 PS Tilak Nagar against him that the said cheque was forged in pursuance of a criminal conspiracy hatched between accused persons to cheat the complainant bank. The said cheque has not been seized by the Investigation officer of the case for the purpose of its examination by Forensic Science Laboratory. It has just come in the testimony of prosecution witnesses that the said cheque was not issued by SBI Bank, Mohali Branch and that the same is forged. There is nothing on record to prove the fact that accused Tirath Singh had forged the said cheque or that the same was forged pursuant to a criminal conspiracy hatched between the accused persons.
12. Ld. Counsel for accused Tirath Singh has argued that accused has been made a scapegoat in the present case. That the cheque in question was given to accused Tirath Singh by his friend Harvinder Singh (co-accused) and accused Tirath singh had presented the same for encashment as Harvinder Singh had no bank account. That the amount withdrawn by accused Tirath Singh was also given by him to accused Harvinder Singh. That accused Tirath Singh has neither forged the said cheque nor he has cheated the bank by withdrawing the amount of Rs 86300/-.
13. The arguements raised by Ld. Defence counsel have raised serious doubts on prosecution story. It has come in the evidence of PW-1 that accused had entered into a Ikrarnama with the Bank which is Mark A. It has also come in the evidence that accused had admitted in the said Ikrarnama that he has been cheated by co-accused Harvinder and that he would repay the said amount of the bank. Further, it has come in the testimony of PW-5 Sh. Satish Kumar Sidana that the wife of accused FIR No. 432/98 8 of 11 PS Tilak Nagar Tirath Singh had deposited money amounting to Rs. 12000/- on various occassions and that she had also handed over two insurance policies to the bank which rather shows the bonafide on the part of accused Tirath Singh. Interestingly, it has also come in the testimony of PW-4 Sh. Rajender Kumar Prinja that the SBI, SAS Nagar, Mohali branch has neither received nor paid the instrument no. 398 dated 22.01.1998 for Rs. 97000/-. PW-8 SI Chandu Lal is the Investigation Officer in the present case. The testimony of PW-8 also reveals that the investigation of present case has been carrried out in haphazard manner as no investigation has been conducted regarding the person whose cheque has been forged. The cheque has not been sent for Forensic science examination. Even the report of expert Mr. Harshwardhan (PW-9) only proves that the signatures found on the withdrawal slips are same as the specimen signatures of accused Tirath Singh.
14. Therefore, this Court finds every force in the contentions raised by ld defence counsel. In the present case, accused Tirath Singh has presented the cheque in his bank account which was given to him by his friend Harvinder Singh (co-accused). It was found later on that the said cheque is forged one and is not genuine. The co-accused Harvinder Singh was initially arrested by the police, however, he was declared a Proclaimed Offender later on. Presenting a cheque for the purpose of encashment in one's own bank account is not an offence. The case of prosecution is based only on the probabilities that accused Tirath Singh had presented the forged cheque and had withdrawn the amount of Rs. 86,300 to cheat the bank in connivance with the other accused persons.
FIR No. 432/98 9 of 11 PS Tilak Nagar
15. In case titled Partap v. State, AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that "The right of accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded."
16. In case tited Sharad Birdhichand Sarda v. State, AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
17. In view of above discussion, this Court is of view that the evidence apparent on record is insufficient for basing the conviction of accused Tirath Singh. The benefit of doubt goes in favour of the accused and he is entitled to be exonerated. The burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. Every accused is to be presumed innocent until proved guilty. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof.
FIR No. 432/98 10 of 11 PS Tilak Nagar
18. Accordingly accused Tirath Singh is acquitted for the offences under section 420/467/468/471/120B/34 IPC in the present case. Bail bonds are cancelled and surety is discharged. Documents, if any be returned after cancellation of endorsement on the same.
Announced in open Court (SUSHIL KUMAR)
on 14th day of January 2016 Metropolitan Magistrate
West-05, Delhi
FIR No. 432/98 11 of 11
PS Tilak Nagar