Delhi District Court
State vs . Mahender Kumar Surana & Ors. on 11 August, 2010
IN THE COURT OF SH. M. P. SINGH : METROPOLITAN
MAGISTRATE-02/WEST : DELHI
State vs. Mahender Kumar Surana & Ors.
FIR No. : 121/92
U/SEC : 420/468/471/34 IPC
PS : Mayapuri
JUDGMENT
Serial No. of the case 125/II/94 Date of commission of the22.06.1991 and 03.05.1992 offence Date of institution of this case 26.11.1994 Name of the complainant Pawan Kumar Gupta s/o Sh. Atma Ram Gupta, r/o C-B, 117-A, DDA Flats, Hari Nagar, Delhi-64.
Name of accused, parentage(1) Mahender Kumar Surana s/o Ghewar and address Chand Surana, r/o C-64, South Extension Part-II, New Delhi.
(2) Late Rajender Kumar Surana s/o Ghewar Chand Surana, r/o C-64, South Extension Part-II, New Delhi. (died on 30.04.2010, proceedings qua him stood abated vide order dated 23.07.2010) (3) Rattan Lal Hirawat s/o Sh. Tola Ram Hirawat, S-100, Greater Kailash, Delhi;
presently residing at 5504, Sadar Thana Road, Delhi-06.
Offence complained of or 420/468/471/34 IPC proved Plea of accused Pleaded not guilty Date of arguments 23.07.2010 Date of decision 11.08.2010' Final order The accused Rattan Lal Hirawat is acquitted of the offences punishable under Sections 420/468/471/34 IPC. The accused Mahender Kumar Surana is acquitted of the offence punishable under section 471 IPC. The accused Mahender Kumar Surana is, however, convicted for the offences punishable under sections 420/468 IPC.
1. FIR in the present case came to be registered against the accused persons on the complaint of Mr. Pawan Kumar Gupta, who is the proprietor of M/s Pawan Wire and Allied Industries and is doing the business of trading in ferrous and non-ferrous products. The accused no. 3 Rattan Lal Hirawat along with the other accused persons had approached the complainant. All of them introduced themselves to the complainant as partners of M/s Chandra Agencies, K-19, Kailash Colony, New Delhi. Accused no. 3 Rattan Lal Hirawat is stated to have told the complainant that they were the consignment agents of M/s Indian Aluminium Co. Ltd. and they could supply aluminium products to the complainant if an advance of Rs. 9 lakhs was given to the firm M/s Chandra Agencies. The complainant agreed to the offer made by the accused no. 3 Sh. Rattan Lal Hirawat and assured that he would arrange for the payment of advance sum of Rs. 9 lakhs. The accused no. 3 Sh. Rattan Lal Hirawat further represented to the complainant that the accused no. 1 Mahender Kumar Surana was one of the partners of M/s Chandra Agencies and was thus authorized to deal with him (complainant). The complainant Pawan Kumar Gupta paid an advance of Rs. 9 lakhs to accused no. 1 Sh. Mahender Kumar Surana vide receipt Ex. PW2/A dated 22.06.1991 for the supply of aluminium products. This receipt Ex. PW2/A was given by the accused no. 1 Mahender Kumar Surana in his capacity as partner of M/s Chandra Agencies. The complainant thereafter many a times contacted the accused no. 3 Rattan Lal Hirawat and also wrote number of letters to M/s Chandra Agencies for the supply of aluminium products but no supply was made by them. When the supply was not made, the complainant asked for the refund of the advance amount from M/s Chandra Agencies. After great persuasion, the accused no. 3 Rattan Lal Hirawat agreed to give a post dated cheque Ex. PW10/C amounting Rs. 6,00,000/-, cheque no. 429267 dated 03.05.1992 drawn on The Bank of Rajasthan Ltd., South Extension, Delhi. This cheque was handed over to the complainant in the presence of the other two accused persons namely Mahender Kumar Surana and Rajender Kumar Surana. This cheque when presented in the bank was returned dishonoured with the remarks "account since closed". The complainant, thereafter, immediately contacted the accused no. 3 Rattan Lal Hirawat telephonically and informed him about the fate of the cheque. However, the accused no. 3 Rattan Lal Hirawat stated that the cheque was genuine and there could have been some mistake on the part of the bank. The complainant on becoming suspicious, contacted The Bank of Rajasthan Ltd., South Extension Branch, Delhi and was surprised to know that there was no such account in the name of firm M/s Chandra Agencies. The complainant was also informed by the bank authorities that the cheque had been issued from the bank account of the accused no. 1 Mahender Kumar Surana, which bank account had been closed long time ago. On this complaint, an FIR was registered. The accused were arrested by the police. And it was thus that the accused were sent up to face trial for the offences punishable under Sections 420/468/471/34 IPC.
2. On the conclusion of investigation, chargesheet was filed. Copies were supplied to the accused persons in compliance with the provision of Section 207 of CrPC. Vide order dated 03.07.1999 my Ld. Predecessor framed charge for the offences under Sections 420/468/471/34 IPC against the accused persons to which they pleaded not guilty. The gist of the charge that was framed against the accused are as follows:
I. The accused were charged for the offence under section 420/34 IPC for having, in furtherance of their common intention, on or before 22.06.1991 wrongfully represented accused Mahender Kumar Surana as partner of M/s Chandra Agencies to the complainant and practising deception upon the complainant by taking the payment of rupees nine lacs by disclosing themselves as consignment agents of M/s Indian Aluminium Company and not making the delivery of the aluminium products although they had no intention to supply the same.
II. Charge of the offence under section 468/34 IPC was framed against the accused persons for having, in furtherance of their common intention, on or before 22.06.1991 got prepared the forged receipt Ex. PW2/A of rupees nine lacs by accused Mahender Kumar Surana on behalf of partnership firm M/s Chandra Agencies falsely showing accused Mahender Kumar Surana as a partner of the firm M/s Chandra Agencies and affixing a false seal thereon.
III.The accused were additionally charged for the offence under section 468/34 IPC for having, in furtherance of their common intention, on 03.05.1992 handed over the cheque no. 429267 dated 03.05.1992 (Ex. PW10/C) to the complainant with the stamp of M/s Chandra Agencies affixed thereon, although the cheque was given from the personal account of Mahender Surana despite knowing that the accused Mahender Kumar Surana was not a partner of the firm M/s Chandra Agencies. IV.Charge for the offence under sections 471/34 IPC, too, was framed against the accused persons for having, in furtherance of their common intention, used the forged cheque no. 429267 dated 03.05.1992 as genuine.
3. After the framing of charge, the matter was posted for prosecution evidence. During the course of prosecution evidence, prosecution had examined fifteen witnesses. Subsequently thereto, statement of accused in the manner prescribed under Section 281 CrPC was recorded wherein the accused persons denied the allegations against them.
4. The fifteen prosecution witnesses that were examined during the course of the trial are as follows:
I. PW1 HC Sube Singh, MHC(M) of PS Mayapuri with the register no. 19.
II. PW2 Amar Chand, witness to the transaction of handing over of the cash of Rs. 9 lacs and preparation of the receipt Ex. PW2/A. III.PW3 Pawan Kumar Gupta, the complainant himself. IV.PW4 ASI Ajeet Singh, duty officer, who had registered the FIR Ex. PW4/A and had made the endorsement (Ex. PW4/B) on the rukka.
V. PW5 HC Mukesh Kumar, who had joined the investigation with the IO on 30.06.1993. On that day, complainant Pawan Kumar Gupta came to the police station and handed over photocopy of letter dated 26.07.1991 written by M/s Chandra Agencies addressed to M/s Indian Aluminium Co. Ltd. and copy thereof addressed to M/s Pawan Wire and Allied Industries. The letter was taken into possession vide memo Ex. PW5/A. VI.PW6 Inspector Gurdev Singh, who had been assigned the investigation of this case on 30.06.1993. VII.PW7 ASI Sakhi Ram, who had joined the investigation of this case on 29.05.1992. On that day, he had gone for investigation to The Bank of Rajasthan, South Extension Part-II, Delhi alongwith the IO.
VIII.PW8 HC Surender Singh, who joined the investigation of this case on 09.09.1995. He was a witness to the IO obtaining the specimen signatures of accused Rattan Lal Hirawat and the impression of the seal of M/s Chandra Agencies on a paper. He was also witness to seizure of the seal of M/s Chandra Agencies vide memo Ex. PW8/B. IX.PW9 Sh. B. K. Pahuja, employee of the Indian Aluminium Company.
X. PW10 SI (retd.) Mehar Singh who had been handed over the investigation of this case on 29.11.1994. XI.PW11 Sh. M. P. Gupta, an official from The Bank of Rajasthan, South Extension Part-II, Delhi. XII.PW12 Ct. Hoshyiar Singh, a formal witness who deposed that the complainant Pawan Gupta came to police station on 02.02.1995 and handed over a receipt and a cheque which was taken into possession by the IO vide memo Ex.
PW10/B. XIII.PW13 Insepctor Zile Singh, to whom investigation of this case was handed over on 11.08.1992.
XIV.PW14 Ct. Ramji Lal, a formal witness who had deposited some documents with FSL.
XV.PW15 SI Yashpal Singh, in whose presence the accused Mahender Kumar Surana gave his specimen signatures in the police station to IO PW10 SI Mehar Singh.
5. The accused Rattan Lal Hirawat opted to lead defence evidence. In defence evidence, the accused Rattan Lal Hirawat examined himself as DW1. No other witness was examined in defence. The other accused did not lead any defence evidence.
6. I have heard the submissions at Bar and perused the records of the case. During the course of the final argument, Ld. Counsel for the accused Mahender Kumar Surana had taken an exception to the counsel for the complainant advancing final arguments. It was the stand of the defence counsel that the complainant or his counsel can only assist the Ld. APP for the State in terms of section 301 CrPC and nothing beyond that. Despite objections by the Ld. defence counsel, this court had permitted the complainant's counsel to address final arguments.
7. The very first limb of the prosecution case is that all the accused, in furtherance of their common intention, had wrongfully represented accused Mahender Kumar Surana as partner of M/s Chandra Agencies to the complainant and practised deception upon the complainant by taking the payment of rupees nine lacs by disclosing themselves as consignment agents of M/s Indian Aluminium Company and not making the delivery of the aluminium products although they had no intention to supply the same. Thus the accused persons are alleged to have committed the offence under section 420/34 IPC. Insofar as the fact that the firm M/s Chandra Agencies was the consignment agent of the Indian Aluminium Company is concerned; even the prosecution does not dispute the same. This is for the reason that the prosecution has led positive and unimpeachable evidence to the effect that the firm M/s Chandra Agencies was the consignment agent of the Indian Aluminium Company. To prove this fact, the prosecution got examined one Sh. B. K. Ahuja, an employee of the Indian Aluminium Company as PW9. The relevant portion of his testimony is as follows:
"It is correct that order have been placed from M/s Chandra Agency on behalf of Indian Aluminium Company after the year 1992. I do not know whether this started in the year 1992 also. It is also correct that the order was directly received in the name of M/s Chandra Agency on behalf of Indian Aluminium Company. It is correct that M/s Chandra Agency was authorised on behalf of Indian Aluminium Company to supply the article of demand to any of the company from where the demand was made. It is also correct that M/s Chandra Agency being the agency of Indian Aluminium Company was authorized to book any order on behalf of Indian Aluminium Company. It is further correct that M/s Chandra Agency was authorised by Indian Aluminium Company to make the transactions regarding trading on behalf of Indian Aluminium Company.
8. Therefore from the testimony of PW9 B. K. Ahuja, it is manifestly clear that M/s Chandra Agency was actually the consignment agent for Indian Aluminium Company; that M/s Chandra Agency was in fact authorised on behalf of Indian Aluminium Company to supply the article of demand to any company from where the demand was made; that M/s Chandra Agency being the agency of Indian Aluminium Company was authorized to book any order on behalf of Indian Aluminium Company, and that M/s Chandra Agency was authorised by Indian Aluminium Company to make the transactions regarding trading on behalf of Indian Aluminium Company.
9. Further, in order to establish this aspect, the prosecution also led documentary evidence. During the course of the testimony of PW3 Pawan Kumar Gupta (complainant), the prosecution placed on record a document which has been marked as Mark X. This document is a letter dated 29.04.1991 issued by Indian Aluminium Company to M/s Chandra Agency confirming that they had appointed M/s Chandra Agency as their consignment agent. The testimony of the PW3 Pawan Kumar Gupta on this aspect is as follows:
"All the accused persons told me that they are the consignment agents of Indian Aluminium co. Ltd. and they can supply aluminium product and they demanded Rs. 9 lacs as an advance. I asked them regarding their proof of their consignment agents by Indian Aluminium co. Accused persons showed me the copy of their appointment by M/s Indian Aluminium co. Ltd. The said copy is mark X....."
10.The prosecution itself having relied upon this document during the course of its testimony, cannot take a reverse stand now. This document dated 29.04.1991 conclusively establishes that the firm M/s Chandra Agency was the consignment agent of Indian Aluminium Company as on the date when the alleged transfer of rupees nine lacs took place.
11. However, what remains to be seen is whether the accused persons constituted the partnership of the firm M/s Chandra Agencies. The prosecution case is that the accused Mahender Surana was never the partner of the firm and the complainant was deceived into believing that the accused Mahender Surana was the partner of the firm. During the course of the defence evidence, the judicial file titled as Pawan Kumar Gupta vs. M/s Chandra Agency was summoned, wherein the accused Mahender Surana had placed on judicial record an affidavit stating therein that he had no connection with the firm M/s Chandra Agency. This affidavit of the accused Mahender Surana has been exhibited on record as Ex. DW1/A. This affidavit having been signed and sworn by the accused Mahender himself in the collateral judicial proceedings; the authenticity of the same certainly cannot be in doubt. Even otherwise, from the line, mode and manner of the cross- examination of PW3 Pawan Kumar Gupta by the accused Mahender Surana; there certainly cannot be any doubt in any manner in arriving at the conclusion that the accused Mahender Surana was actually not the partner of the firm M/s Chandra Agency. In his examination in chief, the complainant PW3 Pawan Kumar Gupta has testified that subsequently, he came to know that the accused Mahender Surana was not the partner of the firm M/s Chandra Agencies. However, to the complainant PW3 Pawan Kumar Gupta, no suggestion was given by the accused Mahender Surana that he was the partner of the firm M/s Chandra Agency. It is a settled law that where a witness is not cross- examined on a material aspect, the same has to be read against the accused. This aspect of the law has been highlighted by the Apex Court in the case of State of UP vs. Nahar Singh (dead) and Others AIR 1998 SC 1328. Insofar as the fact that the accused Mahender Surana was not the partner of the firm M/s Chandra Agency, the same is unrebutted, and even the accused Mahender Surana would not dispute the same inasmuch as he has not cross-examined the complainant on this material aspect.
12.I shall now come to the receipt Ex. PW2/A. This receipt was allegedly executed on 22.06.1991 at the house of Pawan Kumar Gupta where all the accused persons were present along with the complainant Pawan Kumar Gupta and the witnesses PW2 Amar Chand and one Rakesh Kumar. Going by the testimony of PW2 Amar Chand, the same is in his handwriting. PW2 Amar Chand in his examination in chief states that the cash of rupees nine lacs was handed over to all the three accused persons by the complainant in his presence and in the presence of another witness Rakesh Kumar. The complainant PW3 Pawan Kumar Gupta, too, in his examination in chief affirms the same. Before proceeding further, it would be apposite to take a look at the contents of the receipt Ex. PW2/A, which was allegedly executed by the accused Mahender Surana. It is as follows:
Received a sum of Rs. 9,00,000/- (Nine lacs only) from Pawan Kumar Gupta s/o A. R. Gupta r/o D-1/107 Janakpuri, New Delhi, proprietor of M/s Pawan Wire and Allied Industries on behalf of M/s Chandra Agencies, K- 19, Kailash Colony, New Delhi of which I am one of the partner, as advance for the supply of aluminium products as we are consignment agents of M/s Aluminium Co. Ltd.
13.What is most striking is that on this receipt, there is no signature of the accused Rattan Lal Hirawat or the accused Late Rajender Surana. The mode and the manner in which the same has been executed lends credence to the view that the accused Late Rajender Surana and the accused Rattan Lal Hirawat were perhaps not present at that time. The language of this document does not indicate that the same was executed in the presence of the accused Late Rajender Surana and accused Rattan Lal Hirawat. There was nothing that had prevented the parties from making even a stray indication on this document Ex. PW2/A about the presence of the accused Late Rajender Surana and the accused Rattan Lal Hirawat. The language could have very well been to the effect that the money is being received by the accused Mahender in the presence of the other partners namely Rattan Lal Hirawat and Rajender Surana (deceased). It seems to be against the course of normal human conduct. When a huge amount of rupees nine lacs is being transferred, (20 years ago, this amount would of course have been a huge sum), and the parties know that rights and liabilities would flow from that very document, by way of abundant caution one does obtain the signatures of the those who would be sought to be fastened, at a later date, with the liability flowing from that document. This is specially so when those very persons are very much present at that time. It is hard to believe that the complainant Pawan Kumar Gupta, who had acted cautiously in making the necessary enquiries from the accused and seeking the documentary proof of their being the consignment agents of the Indian Aluminium Company and executing a formal receipt of the transfer of the cash of rupees nine lacs; had not been vigilant enough in taking due care as regards taking an acknowledgment from all the three accused. This portion of the testimony of PW2 Amar Chand and PW3 Pawan Kumar Gupta on this score is not free from the attendant doubts. I am inclined to give the benefit of doubt to the accused Rattan Lal Hirawat on this score.
14. The receipt Ex. PW2/A bears the handwriting of the accused Mahender Kumar Surana as the recipient of the amount of nine lacs. The FSL report conclusively establishes the signature of the accused Mahender Surana on this receipt Ex. PW2/A. This report of the FSL is, of course, admissible under section 293 CrPC. Hereinabove, finding has already been given that the accused Mahender Kumar Surana was not the partner of the firm M/s Chandra Agencies when the alleged representation was made to the complainant on 22.06.1991. The oral testimonies of PW2 Amar Chand and PW3 Pawan Kumar Gupta coupled with the receipt Ex. PW2/A conclusively establishes that the accused Mahender Kumar Surana had taken the money of rupees nine lacs by making the false representation to the complainant Pawan Kumar Gupta that he was the partner of the firm M/s Chandra Agencies, when in fact he was not. This is of course a dishonest concealment of facts on the part of the accused Mahender Kumar Surana. Explanation appended to Section 415 IPC states that dishonest concealment of facts is a deception within the meaning of this section. Therefore, the 'deception' on the part of the accused Mahender Kumar Surana stands established beyond reasonable doubt.
15.The accused Mahender Kumar Surana not being the partner of the firm, of which he had falsely represented to be, had in fact no authority to make assurances as regards the supply of the goods to the complainant in the first place. He had no authority to take and accept the money that was purportedly being advanced to the partnership firm M/s Chandra Agencies. When in fact he had no authority to make any assurance or to accept anything on behalf of the firm, of which he was not the partner; his promises as regards the supply of the goods to the complainant therefore, in any case would have been false to his knowledge. He had known it very well that he could not, in his own capacity, in any case deliver the aluminium articles to the complainant. The false representations that he had employed to secure the amount of rupees nine lacs from the complainant were designed in an unlawful manner to cause wrongful loss to the complainant and wrongful loss to himself. Wrongful loss as defined in section 23 IPC is - loss caused by unlawful means of property to which the persons losing it is legally entitled. And the same provision (section 23 IPC) defines wrongful gain as - gain by unlawful means of property to which the person gaining is not legally entitled entitled. In the case at hand, the accused Mahender Kumar Surana having employed unlawful means of making false representations of something which he had no authority at all in the very first place, has of course caused unlawful gain to himself and unlawful loss to complainant Pawan Kumar Gupta. According to section 24 of the IPC, one doing anything with the intention to cause wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly. The accused Mahender Kumar Surana having caused wrongful loss to the complainant and wrongful gain to himself has therefore acted dishonestly within the meaning of section 24 of IPC.
16.It was argued during the course of the final arguments by the defence that an adverse inference was liable to be drawn against the prosecution for having not examined Alok Gupta. Alok Gupta was the person who had advanced Rs. 8,50,000/- to the complainant. When questioned about the source of funds, the complainant Pawan Kumar Gupta (PW3) in his cross-examination had replied that he had borrowed Rs. 8.5 lacs from Alok Gupta and the remaining amount of Rs. 50,000/- were his. Therefore, from this standpoint, it was the contention of the defence that this court must draw an adverse inference against the prosecution for having not examined Alok Gupta. This argument has no merit. This court has not to go into the source of the funds. And if one goes about trailing the source of funds, there can be no end to the same. Alok Gupta may very well have sourced the funds from a third agency and that third agency may have procured the same or part thereof from another known or acquaintance of his. These issues as regards the source of funds are not of much importance in the present proceedings. Even otherwise, this is not a civil suit for recovery, wherein the source of funds would have mattered much. In the present criminal case, for the offence of cheating to be proved, in my view, the examination of Alok Gupta was not at all material. What is material is the element of the inducement, deception, dishonest intention and the delivery of the property.
17. It was also argued that the payment of Rs. 9,00,000/- in cash was in violation of the provisions of section 269SS of The Income Tax Act. According to section 269SS of The Income Tax Act, any payment of more than 20,000/- is to be made by way of an account payee cheque. Whether the payment was not in consonance with the provisions of Income Tax Act is not an issue before this court. And merely because the payment was not in consonance with the provision of the Income Tax Act cannot by itself tantamount to demolishing the case of the prosecution against the accused in its entirety.
18. The question that is required to be decided is - whether on the basis of the proved facts, the ingredients of the offence of cheating are satisfied insofar as the accused Mahender Kumar Surana is concerned. The offence of 'cheating' has been defined in Section 415 of the Indian Penal Code which is asunder :
"Section 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'."
Explanation - A dishonest concealment of facts is a deception within the meaning of this section.
19. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied : (A) deception of a person either by making a false or misleading representation or by other action or omission; (B) fraudulently or dishonestly inducing any person to deliver any property; or (C) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit." {V.Y. Jose & Anr. vs. State of Gujarat & Anr.; 2009 (1) RCR (criminal) 869 (SC)}
20.Section 415 IPC defines the offence of cheating. Section 420 IPC is an aggravated form of the offence of cheating. Section 420 deal with cases of cheating, whereby the deceived person is dishonestly induced
(a) to deliver any property to any person; or (b) to make, alter or destroy 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.
21. In the present case, the 'deception' on the part of the accused Mahender Surana stands completed inasmuch as he had made a dishonest concealment of facts by representing that he was the partner of the firm. Secondly, the accused Mahender Surana also 'dishonestly induced' the complainant by making the complainant believe that he could deliver on the promise of making good the supplies as desired by the complainant if amount of rupees nine lacs was advanced to him thereby causing wrongful loss to the complainant and wrongful loss to himself. And lastly, as a result of such deception and dishonest inducement, the accused Mahender Kumar Surana retained the cash of Rs. 9,00,000/- that was handed over to him by the complainant. It is also clear that but for such 'deception' and 'inducement' on the part of the accused Mahender Kumar Surana, the complainant would have omitted to hand over the cash of Rs. 9,00,000/- to him.
22.On the basis of the discussion aforesaid, I am of the view that the prosecution has succeeded in proving the guilt of the accused Mahender Kumar Surana for the offence of cheating under section 420 IPC beyond reasonable doubt. For the reasons aforesaid, I am inclined to give the benefit of reasonable doubt to the accused Rattan Lal Hirawat insofar as the offence of cheating as punishable under section 420 IPC is concerned. The accused Mahender Kumar Surana is convicted of the offence under section 420 IPC. The accused Rattan Lal Hirawat is acquitted of the offence under section 420 IPC giving him the benefit of reasonable doubt.
23.The accused persons also stood charged for the offence under section 468/34 IPC for having forged the receipt Ex. PW2/A inasmuch as the receipt was prepared on behalf of M/s Chandra Agencies by the accused Mahender Surana showing himself to be one of the partners of the said firm. The fact that the accused Mahender Kumar Surana was not the partner of the firm M/s Chandra Agency stands established. The signatures of the accused Mahender Surana on the document Ex. PW2/A is also established by the FSL report.
24.It was argued that the document Ex. PW2/A is not legally admissible for the reason that on the revenue stamp there are no signatures and that such a document cannot at all be considered by this court. This court is not adjudicating as to whether the document Ex. PW2/A is legally admissible in evidence or not. The legal rights and liabilities of the parties that flow out of this document Ex. PW2/A is not an issue before this court. It is matter for the civil court to decide. What this court has to decide is whether there was forgery on that document or not and whether the same was employed to commit cheating. Even otherwise, this is a collateral proceeding. This court is not to adjudicate on the civil rights and the liabilities of the parties flowing from this document. And merely because the receipt Ex. PW2/A does not have the signatures on the revenue stamp does not mean that the same is beyond the purview of this court in adjudicating whether the same was forged or not. This argument has no merit at all. It was also the argument of the defence that the revenue stamp may have been affixed later on inasmuch as the same does not bear the signatures over it. There may be some merit in this argument of the defence. However that does not by itself in any manner take away from the fact that the document was a false one to the knowledge of the accused Mahender Kumar Surana at the time of its preparation. It was also the argument that the stamp of the firm M/s Chandra Agency on the receipt Ex. PW2/A does not match with the seal that was seized during the investigation. It is true that as per the FSL report, the impression of the seal that was seized during the investigation does not match with the stamp of the firm M/s Chandra Agency as found on the receipt Ex. PW2/A. This document is, of course, a false one and that the stamp not matching with the seal seized during the course of the investigation does not mean that the same shall cease to be a false document. The document Ex. PW2/A is a false document within the meaning of section 464 IPC inasmuch as the same had been made dishonestly with the intention of causing it to be believed that the accused Mahender Kumar Surana had the requisite authority to do what he did, when in fact he had none as he was not the partner of the firm M/s Chandra Agencies. This false document having been executed with the intent to make the complainant, to whom wrongful loss was caused, to part with the cash of rupees nine lacs; the offence of forgery as defined in section 463 IPC stands completed. The forgery on the document Ex. PW2/A (receipt) was done with the purpose to commit cheating; the offence under section 468 IPC on the part of the accused Mahender Kumar Surana stands established beyond reasonable doubt. The accused Mahender Kumar Surana stands convicted for the offence under section 468 IPC for committing forgery on the receipt Ex. PW2/A with the intent to commit cheating.
25.The offence under section 468 IPC is forgery with the intent to use the forged document for the purpose of cheating. The accused Rattan Lal Hirawat having been acquitted of the offence of cheating under section 420 IPC, his guilt under section 468 IPC cannot sustain on this simple legal proposition. The accused Rattan Lal Hirawat is acquitted of the offence under section 468 IPC qua the charge of committing forgery on the receipt Ex. PW2/A with the intent to commit cheating.
26. Next, the accused persons also stood charged for the offence under section 468/34 IPC for having, in furtherance of their common intention, on 03.05.1992 handed over the cheque no. 429267 dated 03.05.1992 (Ex. PW10/C) to the complainant with the stamp of M/s Chandra Agencies affixed thereon, although the cheque was given from the personal account of Mahender Surana despite knowing that the accused Mahender Kumar Surana was not a partner of the firm M/s Chandra Agencies. It is an undisputed fact that the cheque Ex. PW10/C when presented in the bank was returned with the remark "account since closed". Ld. Cousnel for the accused vehemently argued that the seal of M/s Chandra Agency had been stamped thereon later on. It was the argument of the defence that had the cheque been issued with the stamp of 'M/s Chandra Agency', the same would have been returned with the remark "no such account" by the banker of the complainant. The fact that, it was argued, the cheque was returned dishonoured on account of "account closed", is a strong pointer to the fact that the cheque when issued was not stamped with the seal of M/s Chandra Agency. I find that there is merit in this contention of the defence counsel. Needless to say, the law on this aspect is well settled that where two views are possible the one that favours the accused should be taken. Reference in this regard can be made to the judgment reported as Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622. On the facts of the present case, the view that the stamp of Chandra Agency on the cheque Ex. PW10/C was affixed later on is a very-very reasonable view. The line of argument that had the cheque been issued with the stamp of M/s Chandra Agnecy, the same would have been dishonoured with the remarks "no such account" and not with the remarks "account since closed". On this aspect, I acquit the accused persons, giving them the benefit of reasonable doubt insofar as the offence of forgery with the intent to commit cheating as punishable under section 468/34 IPC qua the cheque Ex. PW10/C is concerned.
27.The accused persons also stood charged for the offence under section 471/34 IPC for having, in furtherance of their common intention, used the forged cheque no. 429267 dated 03.05.1992 as genuine. The accused persons deserve to be acquitted of the offence under section 471/34 IPC for the reason that the guilt of the accused persons for the offence under section 468/34 IPC qua the forgery of the cheque Ex. PW10/C does not sustain. From a logical point of view, the accused cannot be convicted for the offence of using the cheque Ex. PW10/C as genuine knowing the same to be forged inasmuch as the forgery of the same stands not proved. Both the accused are therefore acquitted of the offence under section 471/34 IPC.
CONCLUSION
28.The accused Rattan Lal Hirawat stands acquitted of the offences punishable under Sections 420/468/471 IPC.
29.The accused Mahender Kumar Surana is acquitted of the offence punishable under section 471 IPC.
30.The accused Mahender Kumar Surana is, however, convicted for the offence punishable under sections 420/468 IPC.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
th
ON 11 AUGUST, 2010 METROPOLITAN MAGISTRATE
DELHI