Delhi District Court
State vs Akhilesh Kumar on 16 October, 2023
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI. FIR No.220/2009 PS. OIA U/s. 417,420,468,471 IPC STATE VS AKHILESH KUMAR JUDGMENT
A. SL. NO. OF THE CASE : 201/2/2009 B. DATE OF INSTITUTION : 06.08.2009 C. NAME OF THE : P.K. Seth, Manager, PNB ICD.
COMPLAINANT S/O Sh. R.N. Seth D. NAME OF THE : Akhilesh Kumar Singh ACCUSED S/o Sh. Rajeshwar Singh E. OFFENCE COMPLAINED OF : U/s 120BIPC, U/S 471/120BIPC,42/12B IPC F. PLEA OF ACCUSED : Pleaded not guilty. G. FINAL ORDER : Convicted H. DATE OF FINAL ARGUMENTS : 24.06.2023 I. DATE OF SUCH ORDER : 16.10.2023 BRIEF FACTS
1. Brief facts of the instant case as per the charge-sheet are that the present FIR was registered upon the complaint dated 03.06.2009 of Sh. P.K. Seth, Manager of PNB, ICD, TKD, OIA-I. As per the said complaint allegations of cheating against the present accused in- connivance and in collusion with other unknown accused persons was made. The relevant facts of the said complaint is that the present accused Akhilesh Kumar Singh opened his saving bank account bearing No.4209000100049193 on 05.01.2009 and the introducer in the said account was one Sh. Sanjay Kumar. The account was opened with initial deposit of Rs.1,000/- and PAN Card No.AXLPS8692N was given for :2: identity proof along with Ration card and Indian Oil Corporation receipt.
2. Cheque book of 20 leaves starting with no.AAA120071 was issued to accused Akhilesh Kumar on 13.01.2009 and ATM card was also issued. It was stated in the complaint that accused Akhilesh caused wrongful gain to himself and wrongful loss to one Mrs. Malti Ram who was having an account at Chandni Chowk branch of PNB for a total sum of Rs.32,30,000/- which was withdrawn illegally by the accused person in collusion with other accused persons. The manager of PNB, OIA received a complaint from Chandni Chowk Branch of PNB, which had received a complaint from Ms. Malti Ram stating that Rs.32,30,000/- has been withdrawn from her account no.0113000100504795 using cheques of series 123275 to 123280, enquiry was conducted by the bank and it was found that the said amount was credited in the account of present accused, on 14.05.2009 an amount of Rs.8,70,000/- was withdrawn illegally by the accused, thereafter on 15.05.2009 an amount of Rs.8,10,000/- was credited in the account of accused from the account of Mrs. Malti Ram. Similarly, on 18.05.2009, 22.05.2009 and 30.05.2009 again, illegally Rs. 7,80,000/-,4,50,000/- and Rs.3,50,000/- respectively was credited in the account of the above said accused. Complaint consisting the said facts was given to the police and prayer for registration of FIR was made. In a nutshell the crux of the complaint was that the accused by forging the cheques of the complainant had illegally got credited the amount of Rs.32,30,000/- in his account.
3. Further after receiving the complaint, preliminary enquiry was conducted, FIR was registered and investigation was undertaken. During the course of investigation account opening form, statement of :3: account of Akhilesh Kumar Singh and details of the surety Sanjay Kumar Singh was obtained from the bank. The bank statement of Mrs. Malti Ram and cheques used for transaction were also obtained from the bank on 10.06.2009, Akhilesh Kumar Singh was arrested and during interrogation he disclosed that he came into contact of Vimal Victor and Adil @ Femi who asked him to open an account, so amount from any other account can be transferred to his account. He was instructed to withdraw the amount from his account for which commission was paid to him. Accused further disclosed that in pursuance of this he opened the above mentioned account with PNB, ICD, Okhla in which amount of Rs.32,00,000/- approximately was transferred from the account of Mrs. Malti Ram and he had withdrawn the same as per the direction of Vinod @ Victor and Adil @ Femi. He received 10% commission on each transaction. Search of the house of the accused was also conducted but nothing incriminatory was found, accused further disclosed that he had given his cheque books and ATM card to one Vimal @ Victor and same were in the possession of Vimal @ Victor. At the instance of accused Akhilesh Kumar Singh, Vimal @ Victor was also apprehended, Vimal @ Victor was interrogated and he disclosed that he was working for Raj Kumar, Amar and Tyagi and on their direction he was withdrawing the money with the help of Akhilesh Kumar Singh and Adil @ Femi. Vimal @ Victor disclosed that he used to get 5 % commission for each transaction. Vimal @ Victor also disclosed that he kept the passbook, ATM Card and cheque book duly signed by Akhilesh Kumar Singh and he later gave them to Raj Kumar. Vimal @ Victor also disclosed that he would fill up signed cheques of Akhilesh kumar Singh and remained :4: present outside the bank at the time of getting the money out of the bank. He also disclosed that all the above mentioned persons remained present on the day of transaction. Sh. Siddharth Guru, nephew of the complainant in whose possession the original cheques of Mrs. Malti Ram were kept was also examined who stated that all the cheques are with him and he never used any of the cheques in dispute. Cheque book produced by Sh. Siddharth Guru was also taken into possession. It is stated in the charge-sheet that since the original cheques are in the possession of the authorized representative of Mrs. Malti Ram and these cheques were not used in the transactions. Thus it is apparent that the accused persons had used and presented the forged cheques for transferring the money from the account of Mrs. Malti Ram into the account of the present accused Akhilesh Kumar Singh.
4. Further during the conduct of investigation, admitted and specimen hand writing of accused Akhilesh Kumar and accused Vimal @ Victor along with the questioned documents i.e., the cheques used for withdrawal were sent to Forensic Science Laboratory (hereinafter referred to as FSL) for comparison, the admitted and specimen signatures of Mrs. Malti Ram were also sent to the FSL, and after obtaining the results, supplementary charge-sheet consisting the FSL result and the opinion were filed in the instant case. As per the examination of the admitted, specimen and questioned signatures, by the forensic laboratory. The following opinions were given.
1. As per the laboratory examination the person who wrote the red enclosed signatures stamped and marked from S43- S49 and S51-S61 ( i.e., the specimen handwriting of Mrs. Malti Ram) and :5: A11-A17 (admitted signatures of Mrs. Malti Ram as filed along with the account opening form) did not write the red enclosed signatures stamped and marked Q2,Q4,Q6,Q8 and Q10 which are the signatures of Mrs. Malti Ram as being reflected on the seized forged cheques bearing no.123280(Q2), 123279(Q4), 123277(Q6),123278(Q8), 123276(Q10) respectively.
2. Second opinion after the examination of the submitted documents which was given by the FSL was that the person who wrote the red enclosed signatures stamped and marked from S63- S115(specimen handwriting/signatures of accused Akhilesh Kumar Singh) and A1-A10 i.e., the admitted handwriting of accused Akhilesh Kumar Singh as reflected on the account opening form, also wrote the red enclosed signatures similarly stamped and marked Q14,Q16,Q18,Q20,Q22,Q24,Q26,Q28,Q30,Q32,Q34,Q36,Q38,Q40,Q42 which are the signatures of accused Akhilesh as reflected on seized cheques bearing no. 120076(Q14), 120080(Q16), 120089(Q18), 120088(Q20), 120084(Q42), 120081(Q40), 120072(Q38), 120073(Q36), 120075(Q34), 120082(Q32), 120074(Q30), 120078(Q28), 120086(Q22), 120086(Q24), 120079(Q26) , which are the cheques used for withdrwal of the amount credited in the account of the accused Akhilesh from the account of Mrs. Malti Ram.
3. The third opinion was given by the FSL as that it is not possible to express any opinion on rest of the items on the basis of materials at hand.
5. From the opinions so furnished by the Forensic Science Laboratory, it can be concluded that Mrs. Malti Ram did not issue the :6: cheques in question vide which the amount was credited in the account of accused Akhilesh Kumar Singh, further, it can also be concluded that the signatures on the seized cheques used for the purpose of withdrawing the transferred amount from the account of accused Akhilesh Kumar were that of accused Akhilesh Kumar only, and accused Akhilesh was the person who withdrew the amount from his account by issuing self cheques.
6. Cognizance in the instant case for offences punishable u/s 420/417/471/120B/34IPC was taken by the Ld. Predecessor of this court upon filing of charge-sheet on 06.08.2009 and both the accused persons were summoned for further trial.
CHARGE
7. After hearing arguments on the point of charge, vide order dated 11.11.2016, co-accused Vimal Victor was discharged in the instant case as apart from the disclosure statement of accused Akhilesh Kumar and his own disclosure statement, no other incriminatory material was present on record against accused Vimal @ Victor. However, it was noted in the order dated 11.11.2016 that accused Akhilesh Kumar had withdrawn the amount which was credited in his account vide the forged cheques of Mrs. Malti Ram, and accused Akhilesh Kumar is the direct beneficiary and prima facie there is sufficient ground to believe that the accused Akhilesh Kumar along with some unidentified persons hatched a criminal conspiracy to cheat the complainant and acquire wrongful gain. Therefore, charges u/s 120B IPC, Section 471/120B IPC and Section 420/120B IPC were framed against accused Akhilesh Kumar Singh to which he pleaded not guilty and claimed a trial.
:7:PROSECUTION EVIDENCE
8. Prosecution in its support, examined the following witnesses:
8.1. PW1 Sh. P.K Seth was examined , he in his examination in chief deposed that around 10 years ago, he was working as Manager in Punjab National Bank, ICD Tuglakabad Branch, Okhla. They opened a bank account of one Akhilesh in their branch after complying rules and regulations. After some time, Akhilesh managed to transfer funds of Rs.32,30,000/- from PNB, Chandani Chowk Branch from the account of Malti Ram to his account maintained in their branch. PW1 further submitted that they came to know that Akhilesh had fraudulently transferred funds from Chandani Chowk branch in his account maintained in our branch. Cheque book was issued to Akhilesh. Later on, he had withdrawn money from his account maintained in our branch from different branches of our bank through cheques. Malti Ram gave complaint with PNB, Chandani Chowk branch and they had been informed from that branch. He further submitted that he called the police and gave his complaint alongwith annexures vide Ex.PW1/A, bearing his signature at point 'A'. The name of the introducer of the bank account of Akhilesh was Sanjay. He was apprehended by police. Akhilesh had also used ATM card for withdrawal of money. The annexures of the complaint are statement of account of Akhilesh Kumar Singh, copy of complaint of Malti Ram. Bank account statement of Malti Ram. These annexures of complaint are exhibited as Ex.PW1/B (colly.). PW1 further submitted that he handed over documents to the police as per seizure memo Ex.PW1/C, bearing his signature at point 'A'. Those documents are now exhibited as Ex.PW1/P1 to Ex.PW1/P15.:8:
He further submitted that on 24.07.2009, he had given various cheques to the IO as per seizure Ex.PW1/D, bearing his signature at point 'A'. Those cheques are exhibited as Ex.PW1/P16 to Ex.PW1/P24. He further submitted that he further handed over two cheques as per seizure memo Ex.PW1/E, bearing his signature at point 'A'. These cheques are Ex.PW1/P25 and PW1/P26.
8.2. PW-2 SI Jawahar Singh was examined, he in his examination in chief deposed that on 09.06.2009, he was working as DO in PS-OIA, and his duty hours were from 09:00 am to 05:00 pm. On that day at about 10:10 am, SI Mukesh gave him a rukka. PW2 further submitted that he put his endorsement on the Tehrir vide Ex.PW2/A and registered the FIR and its copy is Ex.PW2/B, both bearing his signatures at point 'A' (OSR). That day, he had brought the original FIR register, containing the abovesaid FIR in original. (OSR).
8.3. PW-3 Sh. Siddharth Guru was examined, he in his examination in chief deposed that he does not remember the exact date and time, however in the year 2009 he received a call through his aunty namely Malti who was residing in Germany and she stated that she wanted to know the balance in her PNB Savings Account, Branch- Chandni Chowk. The passbook and the cheque book of her aunty's account were kept at our house. Thereafter he went to PNB Branch, Modi Nagar to print the pass book of aunty's account. Thereafter he came to know that 3-4 transactions were made and Rs. 32,30,000/- was withdrawn from her account which was not done by them. Thereafter he made a call to his aunty at Germany and she instructed him to enquire regarding the same through PNB, Branch Chandni Chowk. He further submitted that :9: next day he visited the PNB Branch, Chandni Chowk and met one bank officer namely Sharmaji and he told him regarding the transactions. After checking their record, he stated that the said amount has been withdrawn through cheques. Thereafter he showed him the cheque book which was issued by bank in favour of his aunty and after discussion of other bank officers he stated him to give this fact in writing. Thereafter he had given the same and he further told him to call the account holder at Branch. Therefore he came back to home and informed his aunty. After some days his aunty came to India and he alongwith his aunty reached at PNB Chandni Chowk Branch. Further enquiry / complaint was made by his aunty. During the course of investigation, he produced the original pass book and cheque book to the IO and the same was seized by the IO by seizure memo which was now Ex. PW3/A bearing his signature at point 'A'. Further, original saving account bank passbook of account no. 0113000100504795 and original cheque book from cheque no. 123275 to 123280 which was affixed with the judicial file was shown to the witness. Witness correctly identified the same. The same was already Ex. P1 and P2.
8.4. PW-4 Sh. Lekhraj Sharma was examined, he in his examination in chief deposed that on 02.06.2009 he was posted as Chief Manager, PNB, Chandni Chowk-Branch. On that day, a person namely Siddharth Guru visited our Branch and informed that some unauthorised withdrawal has been made in the saving fund account of Mrs. Malti Ram who was his aunty and she was living in Germany. He also informed total number of withdrawal in 5 numbers and he told that the cheque books and passbook of Mrs. Malti Ram was in his possession. PW4 further :10: submitted that on the same day they have got a fax from Germany from Mrs. Malti Ram stating that a sum of Rs. 32 lacs had been withdrawn from her account and requested him to freeze her account. After checking the bank record, they had freezed her account. PW4 further submitted that the fraudulent withdrawal by some unknown person may be through forged cheques and that person had deposited the cheque in another branch of Bank for encashment and their branch had nothing to do with the transaction of abovesaid cheques. Further he submitted that he had sent the report regarding the same to their circle office at Rajender Place and head office. He does not recall the number of abovesaid cheques due to lapse of time.
At that stage, Ld. APP for the State sought permission to ask the leading question from the witness. Which was heard and allowed.
In answer to the leading questions, PW submitted that he did not remember as to whether the cheque in question bear no. 123276, 123277, 123278, 123279 and 123280.
8.5. PW-5 Sh. Arun Kumar Sharma was examined, he in his examination in chief deposed that at the time of incident he was posted as Sr. Manager, Printing & Stationery Department at PNB Bank, C-13, Sec- 1, Noida. Further he submitted that he does not remember the exact date, however in the year 2009 he was called by IO at PS-OIA. Thereafter he visited PS-OIA and he asked IO regarding the cheque in question, however the same was not shown to him by the IO. Thereafter he left the PS. He had not given any statement to IO.
At that stage, Ld. APP for State sought permission for cross :11: examination and declared the witness as hostile as he was resiling from his previous statement. Which was heard and allowed.
In the cross examination by the Ld. APP, witness was shown his statement u/s 161 CrPC which was Ex. PW5/A, same was read over to the witness. However PW5 submitted that he had not given any such statement to police officer. It was wrong to suggest that he is not disclosing the whole facts at the instance of accused.
8.6. PW-6 Mrs. Malti Ram, she in her examination in chief deposed that she is residing in Germany. She had savings account at PNB Bank, Chandni Chowk Branch, Delhi and she had given 5 blank signed cheques and passbook to her nephew namely Siddharth. She does not remember the exact date, however it was 9 years back when she told Siddharth to update her passbook of savings account. Thereafter he informed her that Rs. 32,30,000/- had been withdrawn by unknown person from her account. Thereafter she instructed him to contact the bank manager and she also sent a written letter to bank manager through fax. The copy of same was Ex. PW6/A bearing her signature at point 'A'. Thereafter she communicated with the bank regarding same and approximately after 2 years withdrawal money of Rs. 32,30,000/- were credited in her savings account. Thereafter she immediately closed her said account.
PW6 further submitted that she was informed by the bank that her amount were transferred in the account of one Akhilesh Kumar.
At that stage, original saving account bank passbook of account no. 0113000100504795 and original cheque book from cheque :12: no. 123275 to 123280 which was affixed with the judicial file was shown to the witness. Witness correctly identified the same. The same was Ex. P1 and P2.
At that stage, Ld. APP for the State sought permission to ask the leading question from the witness. Which was heard and allowed.
Further, at that stage, it was argued by counsel for accused that leading question was permitted during the course of examination in chief u/s 142 of Indian Evidence Act and as per the said section the court shall allow only those facts to be asked in leading question which were undisputed and proved and the facts which were disputed or not proved by the prosecution cannot be put to the witness by the Ld. APP during the course of examination in chief in form of leading question. (Objections were recorded and the same were to be decided at the time of final judgment).
In answer to the leading questions of the Ld. APP, PW stated that it is correct that she told her nephew to get updated her passbook on 02.06.2009 and on same day she sent her letter to bank. It was correct that her saving account no. was 0113000100504795 at PNB, Chandni Chowk Branch. It was correct that serial number of cheque book which was issued by bank to her was 123261 to 123280. It was correct that 5 cheque numbers which were handed over by her to her nephew was 123275 to 23280.
8.7 PW-7 HC Sushil was examined, he in his examination in chief deposed that on 10.06.2009 he was posted at PS OIA as constable. He further submitted that on that day he along with Ct. Yashvir joined the :13: investigation of this case with IO/SI Mukesh. On that day they went to address 46A Harbans Niwas, Madanpur Khadar where local inquiry was made by the IO and one person informed that accused Akhilesh did not reside there and resides somewhere. From there they along with one person went to H.No. 153, Madanpur Khadar. From outside the house the said person pointed out towards the accused Akhilesh. PW7 further submitted that they arrested the accused Akhilesh vide arrest memo Ex.PW7/A bearing his signature at point A and prepared personal search memo Ex.PW7/B bearing his signature at point-A. IO recorded his disclosure statement i.e. Ex.PW7/C bearing his signature at point-A. In the disclosure statement, accused Akhilesh admitted the involvement of further two accomplices namely Victor and Fahim. From there they along with accused Akhilesh went to Mayur Vihar-I area and in that area at Khatta Market, accused Akhilesh pointed out towards accused Victor who was arrested vide arrest memo Ex.PW7/D and his personal search was also prepared vide memo Ex.PW7/E both bearing his signature at point- A. IO also recorded the disclosure statement of accused Victor vide Ex.PW7/F bearing his signature at point-A. From there they along with both the accused went to Jia Sarai. In that area, they made inquiry regarding the accused Fahim but he could not be traced due to lack of his exact address. From there they along with both the accused returned to PS and from PS accused persons were taken to hospital for medical examination. He further submitted that IO recorded his statement. He can identify the accused Akhilesh if he appeared before the Court. (Accused Akhilesh was exempted from personal appearance for that day and his identity was not disputed by defence counsel).
:14:8.8. PW 8 HC Yashvir was examined, he in his examination in chief deposed that he did not remember the exact date, however, it was probably on 12.06.2009, he was posted at PS OIA as constable. He further submitted that on that day, he had joined the investigation of the present case alongwith SI Mukesh. He alongwith SI Mukesh and Ct. Sushil reached in Madanpur Khadar at House No.46A, Harbansh Niwas. Upon local inquiry, they came to know that accused Akhilesh Kumar was not residing at house no.46A and he was residing at house no.153, L Block, Madanpur Khadar. The person who informed us about the residence of accused Akhilesh was also accompanying us and they reached at house no.153. Said person pointed towards accused Akhilesh and thereafter, accused was apprehended by him and IO.
At that stage, witness pointed towards the accused and accused was correctly identified by the witness.
PW8 further submitted that the accused was arrested and his personal search was conducted vide memos already Ex.PW7/A and Ex.PW7/B bearing his signatures at point B. Disclosure statement of the accused Akhilesh was recorded vide already Ex.PW7/B and now Ex.PW8/A bearing his signature at point B. Thereafter, he alongwith IO, Ct. Sushil and accused went to Mayur Vihar, Phase-I in search of accused Vimal Victor. While they were in search, suddenly accused Akhilesh pointed towards a person stating that he was Vimal Victor. Thereafter, he was arrested and his personal search was conducted vide memos already Ex.PW7/D and Ex.PW7/E bearing his signature at point B respectively. Accused Vimal Victor was interrogated and his disclosure statement was recorded vide already :15: Ex.PW7/F bearing his signature at point B. Further he submitted that they had also gone to Kotla in search of accused Faheem, however, he could not be traced. Thereafter, they returned to PS. PW8 further submitted that he did not remember anything else about this case.
At that stage, Ld. APP for the State sought permission to ask the leading question from the witness which was heard and allowed.
In answer to the leading questions, PW further submitted that he had joined the investigation of the present case on 10.06.2009 and not on 12.06.2009 on which accused persons were arrested. He did not join investigation of the present case after 10.06.2009.
At that stage, seizure memo already Ex.PW3/A was shown to the witness. After seeing the same, witness stated that he had also joined the investigation on 24.06.2009 when a person namely Sidharth had produced a bank passbook belonging to Malti Ram and cheque book containing six blank cheques of PNB.
8.9. PW-09 SI Sanjeev was examined, he in his examination in chief deposed that he got the FSL result no. 2009/D3467 from FSL Rohini, in the month of August, 2011, the same was submitted in the Hon'ble court as supplementary chargesheet.
8.10. PW 10 Dr. Sarita Sharma was examined, she in here examination in chief deposed that she was working in FSL, Rohini since 30th October 2009 in the documents department. The FSL report in the present matter was prepared by Dr. Virender Singh vide Ex. PW-10/A. She further submitted that she was aware with the handwriting and signature of Dr. Virender Singh as she had been working in the same :16: department with him. The said FSL report has been signed by him at point A, B and C. STATEMENT OF ACCUSED
9. After conclusion of examination of all the material prosecution witnesses. Prosecution evidence was closed and statement of the accused u/s 281 r/w section 313 was recorded in which accused stated that he has not committed any offence and he has been falsely implicated in the present case. The accused stated that it is correct that payment of the cheques in question were received in his account, however he has no connection whatsoever with the misuse of the cheques in question. The accused stated that he is not aware as to how the money was credited in his account vide the said cheques. All the while he was under the impression that the money was being credited by his travel agents since he was in the business of tour and travels. Accused preferred not to lead any defence evidence as lot of time had elapsed and it was not possible for him to trace out any document by virtue of which he can express his bonafide FINAL ARGUMENTS
10. Ld. APP submitted that from the evidence available on record it stands established that the cheques used for the purpose of withdrawing the transferred amount were presented by accused Akhilesh, and he undoubtedly got unjustly enriched at the behest of the complainant. It was also submitted that nature and manner of commission of offence indicates that the complainant was cheated in well planned manner in pursuance of cheating. Hence accused is liable to be convicted.
:17:10.1. Per contra, Ld. Counsel for the accused contended that the prosecution has failed to establish it's case beyond reasonable doubt, no evidence whatsoever regarding criminal conspiracy has been adduced by the prosecution. It was submitted by the Ld. Counsel that criminal conspiracy is an agreement between two or more persons and there is only one accused in the instant case, the prosecution has not brought to the books any other person with whom it can be said that the accused conspired, moreover the only co-accused person Vimal @Victor was discharged in the instant case. Ld. Counsel further submitted that the case against the accused has to be 'must be true' and not 'may be true'. It was also further contended that there is no evidence or allegation as to any dishonest inducement extended by the accused to Mrs. Malti Ram, the complainant is the Branch Manager of PNB Bank in the instant case and thus the charge of Section 420/120B is also not established against the accused as there is no misrepresentation. It was further contended that there is no evidence as to usage of forged cheques against the accused. Ld. Counsel vehemently argued that the only allegation against the accused is that he withdrew amount from his account and mere withdrawal of money from one's own account is no offence.
DISCUSSION OF LAW, EVIDENCE AND DECISION THEREON
11. I have heard the Ld. APP and the Ld. Counsel for the accused and also carefully gone through the material available on record. The general principle of criminal law is that the accused is presumed to be innocent until proven guilty, the burden of proving the guilt is on the prosecution and the prosecution is required to discharge this burden beyond reasonable doubt. The strict burden of proof is casted on the :18: prosecution due to the principle that hundred guilty may go unpunished but one innocent should not be wrongly convicted.
12. The case of the prosecution against the accused is that the accused alongwith unidentified persons entered into a criminal comspiracy to cheat the victim Ms. Malti Ram by use of five forged cheques of her account and committed an offence under section 120B IPC, further the allegation against the accused is that in furtherance of this criminal conspiracy accused used total of 5 forged cheques for a total amount of Rs. 32,30,000/- purported to be signed by the victim Ms. Malti Ram of her savings account no. 0113000100504795 at PNB Chandni Chowk branch, as genuine and got credited the aforementioned amount in his savings account no. 4209000100049193 at PNB Branch, ICD Tughlakabad OIA phase 1 knowing them to be forged cheques and has committed an offence under section 471 read with Section 120B IPC. Another charge against the accused is that the accused cheated Ms. Malti Ram by dishonestly inducing the bank officials of her bank through the said five forged cheques to wrongfully debit the amount of Rs. 32,30,000/- from her account and credit the same in the account of the accused, and by doing so accused committed an offence under Section 420 read with Section 120B IPC.
13. Since accused is charged for offence under section 120B IPC separately and is also charged for Section 420 and Section 471 IPC with the aid of Section 120B, thus the most important question to be answered is that whether the prosecution has been able to establish the offence of criminal conspiracy beyond reasonable doubt. Section 120B IPC makes punishable offence of criminal conspiracy which is defined under section :19: 120A IPC. Section 120A provides S.120A. Definition of criminal conspiracy.--
When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
14. It is further stated that an act of conspiracy is usually done in secrecy and the direct evidence of the same is difficult to procure and adduce. The agreement between two or more persons to commit an offence forms the backbone of the offence of criminal conspiracy.
15. Further with respect to the proof of conspiracy, it is pertinent to point Section 10 of the Indian Evidence Act 1872, which provides that " Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving :20: the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
16. The principle as enshrined under section 120B IPC is that of collective liability, which makes each of the conspirators liable in the same manner for the offence which they conspire to commit, irrespective of the fact that whether the particular act constituting the offence was committed by them or not, as the objective behind section 120B is to make the agreement between 2 or more persons to commit an offence punishable. On the similar principle of collective liability, section 34 IPC is also enacted, which casts liability on a co-accused on the basis of sharing of common intention. Regarding the proof of common intention, The Hon'ble Apex Court in Sachin Jana &Anr. V. State of West Bengal Criminal appeal no. 176 of 2008 held:
"Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.":21:
17. Further the Hon'ble Supreme Court of India in Firozuddin Basheeruddin & Ors vs State Of Kerala (2001) 7 SCC 596 held:
" The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy."
18. The Hon'ble Apex Court in the Firozuddin Basheeruddin judgment(supra) also held that...
"Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts.":22:
19. From the above mentioned discussion it can be concluded that necessity of direct evidence in cases of criminal conspiracy is not to be insisted upon as by the very nature of offence, direct proof is not available, reliance can be placed upon circumstantial evidence and judicial inference as to the culpability of the accused is to be drawn from the proved facts and circumstances. Further it is also to be understood that the objective behind Section 120B is to make punishable an agreement to do an unlawful act and once a person makes himself a part of the agreement, then he impliedly makes himself liable for the acts and offences committed by the co-conspirators.
20. Coming to the facts of the instant case, the prosecution witnesses as examined have testified qua the factual matrix of the case, from the testimony of the prosecution witnesses the chain of circumstances is established, as per this chain, PW-3 Siddharth Guru who sometime in the year 2009, upon the instructions of her aunty namely Malti Ram (PW-6/Victim) visited the PNB Branch Modi Nagar for printing of the pass book and to check the balance, at that time PW-3 noticed withdrawal of Rs. 32,30,000 which was not done by them, this fact was informed to Ms. Malti Ram and next day PW-3 visited the Chandni Chowk branch of PNB, where Ms. Malti Ram maintained her account. There PW-3 met the bank officials, he was informed that the transactions have taken place through cheques, upon which the original cheque book in the name of Ms. Malti Ram was produced by PW-3. Further, the bank officials informed PW-3 to call the account holder and also give the complaint in writing.
21. This testimony of PW-3 is further corroborated by the :23: testimony of PW-4 Sh. Lekhraj Sharma, PW-4 affirmed the chain of circumstances and further stated that the fax from Ms. Malti Ram was also received and upon instructions, bank account was freezed. Further, report regarding the same was sent to circle office at Rajender Place. PW6 Ms. Malti Ram who is the victim in the instant case, was examined by the prosecution and she also reiterated the fact that she asked PW-3 to update her passbook, upon which she came to know that Rs. 32,30,000/- were transferred from her account. PW-6 stated that she wrote a letter to the bank and got her account freezed and she was also informed by the bank that the amount was transferred in the account of Akhilesh Kumar Singh. PW-1 Sh. P.K Seth, who is the complainant in the instant case has carried forward the chain of circumstances narrated by the other prosecution witnesses, PW-1 stated that the accused Akhilesh got the amount of Rs. 32,30,000/- fraudulently transferred in his own account from the account of Ms. Malti Ram by use of five cheques, this money was later on withdrawn by him through cheques and ATM. PW-1 only made the complaint to the police and provided the necessary documents.
22. The oral testimony of the prosecution witnesses certainly establish the chain of circumstances, however mere oral testimony cannot be considered sufficient in the instant case and the relevant documentary evidence needs to be highlighted for ascertaining the culpability of the accused. it is pertinent to indicate this proved documentary evidence. From the perusal of Exihibit PW1/B (colly), consisting the account statements of the accused Akhilesh Kumar Singh and the Victim Ms. Malti Ram, it evident that on 14.05.2009 amount of Rs. 8,70,000/- is debited from the account of Ms. Malti Ram vide cheque no. 123277 and :24: is credited in the account of accused Akhilesh, similiarly on 15.05.2009 amount of Rs. 8,10,000/- is debited from the account of Ms. Malti Ram vide cheque no. 123278 and is credited in the account of accused Akhilesh, further on 18.05.2009 amount of Rs. 7,50,000/- is debited from the account of Ms. Malti Ram vide cheque no. 123279 and is credited in the account of accused Akhilesh, thereafter on 22.05.2009 amount of Rs. 4,50,000/- is debited from the account of Ms. Malti Ram vide cheque no. 123276 and is credited in the account of accused Akhilesh, and on 30.05.2009 amount of Rs. 3,50,000/- is debited from the account of Ms. Malti Ram vide cheque no. 123280 and is credited in the account of accused Akhilesh,
23. It is also pertinent to point Ex. PW1/P5, which provides the details of the branches from where the above mentioned transcations took place, these details also appear in the bank statement of the victim Ms. Malti Ram. As per PW1/P5 cheque no. 123277 was presented at Muzaffarnagar Industrial Area branch UP, Cheque no. 123278 of amount 8,10,000/- was presented at Court road, Muzaffarnagar branch of PNB. Cheque no 123279 of Rs. 7,50,000/- was presented at New Awas Vikas, Delhi Road Saharanpur branch of PNB, cheque no. 123276 of Rs. 4,50,000/- was also presented at Court Road , Muzaffarnagar branch of PNB and cheque no. 123280 of amount 3,50,000/- was presented at Shivaji Marg , Kirti Nagar Branch of PNB. A total of Rs 32,30,000/- was credited in the account of the accused by presentation of these cheques at different branches of Punjab National Bank.
24. With respect to the proof of the fact that the cheques so presented were forged, the prosecution examined PW-3 Sh. Siddharth :25: Guru, from whose possession the original cheque book and pass book of Ms Malti Ram were seized, the original cheque book was proved by PW- 3 and the same is EX. P-2, this original cheque book consists of original cheques from no. 123275 to 123280. Further to prove the angle of forgery, the prosecution has examined PW-10 Dr. Sarita Sharma, Senior Scientific Assistant (documents) FSL Rohini, who proved the FSL report prepared by Dr. Virender Singh which is Ex. PW-10/A, the FSL report after analyzing the specimen signatures of Ms. Malti Ram, the admitted signatures of Ms. Malti Ram and the signatures on the 5 cheques used for the purpose of transferring the amount of Rs. 32,30,000 from the account of Ms. Malti Ram concluded that the signatures on the questioned cheques are not made by the person to whom the specimen and admitted signatures belong, implying thereby that Ms. Malti Ram did not sign the cheques which were used for the purpose of transferring the amount of Rs. 32,30,000/- from her account to the account of the accused. Thus in light of the aforementioned discussion, the original cheques of the same series being on record and the fact that the cheques were not signed by the victim herself, this court has no hesitation to hold that the 5 cheques bearing no. 123276 to 123280 vide which the amount of Rs. 32,30,000 was debited from the account the victim Ms. Malti Ram and credited into the account of accused Akhilesh Kumar were forged.
25. Proceeding further, this court deems appropriate to discuss the conduct of the accused for the purpose of proving criminal conspiracy in light of section 10 Indian Evidence Act, the accused in the instant case withdrew this wrongfully transferred amount by use of 15 self cheques and ATM card withdrawals, perusal of the bank statement of the accused :26: reveals that on 14.05.2009 , Rs 8,70,000 was transferred in the account of the accused by forged cheque bearing no. 123277, and on the very same day accused withdrew Rs. 98000/- via self cheque bearing no. 120073 and Rs. 25000/- via ATM withdrawal of two separate transaction of Rs. 15000/- and Rs. 10,000/- respectively. On 15.05.2009, Rs. 8,10,000/- was credited in the account of the accused from the account of the victim Ms. Malti Ram by forged cheque bearing no. 123278, Thereafter on 15.05.2009 itself, accused withdrew Rs. 5,00,000 via self cheque bearing no. 120074, Rs. 95000/- via self cheque bearing no. 120075 and Rs. 90,000/- via self cheque bearing no. 120076. On 15.05.2009 as well amount of Rs. 35000/- via ATM was withdrawn from the account of the accused. On 16.05.2009, amount of Rs. 90,000 and Rs. 5,00,000 was withdrawn using self cheques bearing no. 120080 and 120078 from the account of the accused and Rs. 20,000 vide two separate transactions of Rs 10,000/- each was withdrawn by the accused on 16.05.2009. further on 18.05.2009, Rs. 7,50,000 was credited in the account of the accused vide forged cheque bearing no. 123279, on 18.05.2009 itself accused withdrew Rs. 95000/- vide self cheque bearing no. 120081, Rs. 20,000 vide self cheque bearing no. 120072, thereafter on 19.05.2009 accused withdrew Rs. 5,00,000 vide self cheque bearing no. 120082 and Rs. 1,50,000 vide self cheque bearing no. 120083. Several transactions of withdrawing the cash from ATM were also undertaken by the accused. On 22.05.2009, Rs. 4,50,000 were credited in the account of the accused from the account of Ms. Malti Ram vide forged cheque bearing no. 123276 and on 25.05.2009, amount of Rs. 3,25,000 was withdrawn from the accused vide self cheque bearing no. 120084, several transaction of :27: withdrawal from the ATM also took place between 22.05.2009 to 25.05.2009 and from 25.05.2009 to 31.05.2009 after encashment of the self cheque bearing no. 120084. On 30.05.2009 amount of Rs. 3,50,000 was transferred in the account of the accused from the account of Ms. Malti Ram by forged cheque bearing no. 123280 and on 01.06.2009 itself 2,70,000 was withdrawn from the account of the accused by using self cheques of Rs. 90,000/- each.
26. Basically the point to be noted is that total of Rs. 32,30,000 was transferred in the account of the accused from the account of Ms. Malti Ram in between 14.05.2009 to 30.05.2009, and total amount of Rs. 27,33,000/- was withdrawn from the account of the accused using 15 self cheques in between 14.05.2009 to 01.06.2009 and money was also withdrawn in between this period via ATM. The pattern of wrongful transfers via forged cheques and consequent withdrawals is interesting and indicates towards the mens rea of the accused.
27. Regarding the self cheques used for the purpose of withdrawal, it is to be noted that the FSL report which is Ex. PW10/A, had after analyzing the specimen signatures of the accused and his admitted signatures with the signatures present on the self cheques used for the purpose of withdrawing the aforementioned amount of Rs. 30,58,000/- stated that the signatures of the accused match with the ones present on the seized self cheques. Moreover the accused has also not disputed the factum of withdrawal of money, rather accused stated in his statement under Section 313 CrPC that it is correct that the payment of the cheques in question were received in his account and he was under
the impression that the money was credited by his travel agents.:28:
28. This court is of the opinion that the proved circumstances of the credit of Rs. 32,30,000/- by way of 5 forged cheques presented at different places, purportedly belonging to Malti Ram, in the account of the accused from 14.05.2009 to 30.05.2009 and consequent withdrawal of Rs. 27,33,000/- by use of 15 self cheques by the accused in between 14.05.2009 to 01.06.2009, fact which is not denied by the accused, clearly indicates that a criminal conspiracy to cheat Ms. Malti Ram existed and the accused by his conduct of withdrawing this money has actively made himself a co-conspirator and active participant of this criminal conspiracy.
29. It is pertinent to mention that once it is proved that the cheques used for transfer of Rs. 32,30,000/- from the account of Ms. Malti Ram into the account of the accused were forged and the amount was indeed credited and also that the substantial amount was withdrawn by the accused subsequent to the transfers, accused cannot claim innocence by simply stating that he has been falsely implicated and he was withdrawing the amount under the impression that his travel agents deposited the said amount and even if accused pleads so, the burden of proving the same is on the accused as Section 103 Indian Evidence Act 1872 provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in it's existence. Whereas accused in the instant case preferred not to lead any defence evidence.
30. In common course of nature, it can be safely presumed that a reasonable person is ought to know regarding the credit of such huge funds in his account in such short period, this knowledge regarding funds becomes more imperative when the person is intentionally withdrawing :29: the same in a well planned manner. No doubt that withdrawal of money from one's own account is no offence, but that money must rightfully belong to oneself, if any person is withdrawing and utilizing the money not rightfully belonging to oneself, then that becomes a clear case of misappropriation.
31. At this juncture, this court further deems appropriate to address the another argument raised by the Ld. Counsel for the accused that no other co-accused is present in the instant case and in the absence of any other co-accused, charge of criminal conspiracy cannot be proved. There is no hesitation for this court to hold that by the very definition as provided under section 120A IPC, criminal conspiracy is an agreement between 2 or more persons. However in the instant case, the charge against the accused is that he entered into a criminal conspiracy with some unidentified persons. It is to be understood that there has to be the satisfaction of the court as to the existence of agreement between 2 or more persons and there is no mandate of law that all the conspirators must be arrested, charged and tried together.
32. In the present circumstances, the aspect of forging the cheques, presentment of forged cheques at different branches of the bank within a span of 17 days and substantial withdrawal of this wrongfully transferred amount within 19 days by way of 15 self cheques by the accused certainly indicates involvement of 2 or more persons. The fact that no other co-accused is present cannot absolve the accused of his criminal acts, the non presence of any other co-accused is due to improper or defective investigation on the part of the investigation agency as the police despite efforts could not trace the other co-accused :30: persons, the benefit of doubt on this ground alone cannot be given to the accused when other incriminatory circumstance against the accused are proved beyond reasonable doubt. Reliance is placed on the judgement of Hema v. State (2013) 10 SCC 192, in which the Hon'ble Apex Court held that:
"10) It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan and Others vs. State of Tamil Nadu, 2010 (9) SCC 567, the following discussion and conclusion are relevant which are as follows:-
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
33. Thus in light of the above discussion, in the opinion of this court, the argument of the Ld. Defence Counsel that charge of Section :31: 120B IPC cannot be sustained due to non arrest of any other co-accused person cannot be considered as a ground acquitting the accused when transfer of funds via forged cheques in the account of the accused and subsequent withdrawal of those funds by the accused is proved beyond reasonable doubt, the benefit of defective investigation of not being able to trace the other culprits cannot be extended to acquit the accused who is traced, as such an interpretation will be counter productive. It cannot be said that due to non arrest of other conspirators, the only conspirator who is arrested be acquitted.
34. Further with respect to the charge of Section 471 read with section 120B IPC, it is stated that that 471 makes punishable dishonest and fraudulent use of any forged document as genuine, knowingly or having reason to believe the same as forged. It is stated that the 5 forged cheques vide which the amount was transferred from the account of Ms. Malti Ram in the account of accused Akhilesh were presented at different branches of PNB, 2 cheques bearing no. 123278 of Rs. 8,10,000/- and cheque bearing no.123276 of Rs. 4,50,000/- were presented at court road branch, MuzaffarNagar. Similiarly cheque no. 123277 was presented at Industtiral area, Muzaffarnagar Branch, one cheque no. 123279 was presented at Saharanpur and the last one cheque bearing no. 123280 was presented at Kirti Nagar branch, New Delhi.
35. There is no direct evidence as to the fact that who presented these cheques, neither any fact has come on record to indicate that it was the accused who had presented these cheques, however the fact that the cheques were forged and were actually presented by someone for the purpose of this wrongful transfer cannot be denied.
:32:36. The charge against the accused is under section 471 IPC read with Section 120B IPC, the objective behind section 120B is to make liable every co-conspirator in the same manner for the crimes committed in pursuance of conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. Basically, when any person enters into a conspiracy with other persons for an illegal act, he by such agreement makes himself liable for the acts of the other members as well which are committed by these other members in furtherance of conspiracy.
37. In the instant case, the subsequent act of immediate withdrawals of the money through self cheques by the accused of the wrongfully credited amount via forged cheques, is the physical manifestation of the intention of the accused that he intended to take advantage of the act of forgery committed by the co-conspirators. Thus by virtue of Section 120B IPC accused can be held liable for the offence under section 471 IPC as accused assumed the criminal liability by becoming the member of the criminal conspiracy.
38. Thirdly it is observed that accused in the instant case is charged for offence punishable under section 420 IPC read with Section 120B IPC, section 420 IPC provides punishment for cheating, which is defined in Section 415 as "415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
:33:Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
39. In the instant case, in pursuance to the conspiracy, dishonest inducement is extended to the bank officials of the bank of the complainant and they are deceived through the forged cheques to transfer the amount of Rs 32,30,000/- into the account of the accused. The said inducement is dishonest as the cheques themselves were forged and not issued by the victim Ms. Malti Ram. Another aspect of cheating in the instant case is dishonestly inducing PW-1/ complainant Sh. P. K Seth, through self cheques, to withdraw the amount credited in the account of the accused via forged cheques. For the dishonest inducement to the bank officials of the complainant, there is no direct evidence as to the fact that who presented the cheques however in light of the FSL result, it is certain that the amount was withdrawn by the accused only through self cheques. It is to be noted that accused was acting in a pre-meditated manner in pursuance of a criminal conspiracy. Be that as it may that unfortunately any other member of the conspiracy could not be apprehended but that benefit of lack in investigation cannot be extended to the accused in light of the proved facts and circumstances. Hence, it can be concluded that accused by being the member of a criminal conspiracy assumed the knowledge that for the purpose of conspiracy, the offence of cheating is also to be committed. Therefore accused is liable to be convicted for offence punishable under Section 420 read with Section 120B IPC.
40. In conclusion the net effect of the above discussion is that the prosecution has been able to prove the existence of a well knit conspiracy designed to cause wrongful loss to the victim Ms. Malti Ram :34: to the sum of Rs. 32,30,000/-, wherein five forged cheques, presented at different locations, were used to credit the aforementioned amount in the account of the accused. The amount of Rs. 27,33,000/- is also withdrawn by the accused using 15 cheques. The fact of withdrawal of money by the accused intricately connects him with the conspiracy. The aspect that no other co-accused is there in the instant case and, one co-accused Vimal @Victor was arrested and discharged due to non availability of evidence against him is, in the opinion of the court due to lack of proper investigation, and granting this benefit of defective investigation to the present accused will reflect that the justice to the complainant is based upon investigation. The prosecution, in light of Section 10 Indian Evidence Act, has proved the conduct of the accused regarding withdrawal of money through which it has proved the conspiracy and the liability of the accused regarding the acts of forgery and cheating.
41. Accordingly, in light of the above discussion, accused Akhilesh Kumar Singh is convicted for offence punishable u/s 120B IPC, Section 471IPC R/W Section 120B IPC and Section 420 IPC R/W Section 120B IPC.
Pronounced in the open court on 16.10.2023.
Copy of judgement is given free of cost to the accused. Judgment contains total 34 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 16.10.2023