Delhi District Court
State vs . Pritpal Singh on 28 June, 2012
IN THE COURT OF SH. DEVENDER NAIN
METROPOLITAN MAGISTRATE: NORTH06, DELHI
FIR No. 180/1991
Case ID: R0590662003
State Vs. Pritpal Singh
PS Lahori Gate
U/s 420/468/471 IPC
Date of Institution of case : 10.10.1993
Date of Judgment : 28.06.2012
JUDGMENT:
a) Date of offence : Between 14.06.90 to
23.06.90
b) Offence complained of : U/s 420/468/471 IPC
c) Name of Accused, his : Pritpal Singh,
parentage & residence S/o Late Sardar Agya
Singh,
R/o 381, AGCR
Enclave,
Delhi110092
d) Plea of Accused : Plead not guilty
FIR No. 180/91 1 of 24
PS Lahori Gate
e) Final order : Acquitted
BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:
1. That on between 14.06.90 to 23.06.90 accused committed a forgery by making endorsement on the back of Bank draft bearing No. 592496 drawn on New Bank of India, New Delhi purporting to be endorsed by Demand Draft holder Ashok Kumar in his favour and thereby committed an offence punishable u/s 468 IPC.
Secondly, during the said period accused presented the said Bank draft for encashment in Canara Bank branch Queens Road knowingly well or having reason to believe that the same was not endorsed in his favour by the holder and accused used the said forged documents forged Bank draft as a genuine and thereby accused committed an offence punishable u/s 471 IPC.
Thirdly, by presenting the said Bank draft before Canara Bank accused induced the New Bank of India to encash the said Bank draft causing the loss to New Bank of India to the sum of Rs.6000/ and thereby accused also committed the offence punishable u/s 420 IPC.
FIR No. 180/91 2 of 24 PS Lahori Gate
2. Court took cognizance of the abovesaid offences and the charge against accused was framed on 01.12.04 and a prima facie case was made out against the accused and charge was accordingly framed against accused for offence punishable u/s 420/468/471 IPC to which accused pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined 12 witnesses.
4. PW1 is Sh. Rakesh Kumar who deposed that in the year 1991 one of his draft of Rs.10,000/ issued by Shekhawati Store, Hetri Nagar was lost and the above said draft was sent in August 1990 and when that party Shekhawati Store came to them and matched the account and found that the abovesaid Rs.10,000/ have not been adjusted. PW1 further deposed that he also checked the account and found that the abovesaid draft has not been received by him and the Shekhawati Store sent him the photocopy of the draft and proof of registry by post and he lodged a complaint in the PS Lahori Gate on 15 or 16.02.91 and he found that the draft had been encashed in the name of some Bhambrai brothers. The endorsement on the original draft number 758973 which was issued in the name of his firm is not of him.
FIR No. 180/91 3 of 24 PS Lahori Gate
At the time of cross examination, PW1 deposed that he do not remember the date on which he came to know regarding the theft of his draft. He further deposed that as he was told by Shekhawati Store that the draft was sent through a registered post and he had given the photocopy of registry to the police and he personally did not inquire from the post office in this regard and the draft was of State Bank of Bikaner & Jaipur and he was not sure about the branch of the Bank from which it was sent but generally the draft are sent from Khetari. He further deposed that he do not remember the number of the draft and he had been receiving payment through drafts by registered post from the above said firm on earlier occasion also and he used to deposit the draft in the name of his firm and he had personally gone to the PS and lodged the complaint and the complaint was received and stamped in the PS. He further deposed that he do not know whether any action was taken upon that and he did not inquire whether any action has been taken upon it and the draft in question was sent to him by Sh. Shekhawati Store, Khatri Nagar, Rajasthan and the draft was in the name of M/s Hazari Lal Rakesh Kumar & Co. PW1 denied the suggestion that the abovesaid draft was not sent by Shekhawati Store and that Shekhawati Store had given a false information to him in this regard. He further deposed that FIR No. 180/91 4 of 24 PS Lahori Gate the endorsement on the draft is not of him or anybody on behalf of his firm. He do not know who has made the abovesaid endorsement. He do not know whether the abovesaid draft was not an account payee draft. He do not know whether Shekhawati Store had made a complaint in this regard to the police but he had made the complaint and he do not know whether any FIR was not lodged on the basis of his complaint and he did not file any complaint in the court in this regard. Shekhawati Store did not compensate him regarding the draft amount and he did not approached Bhamari Finance regarding the above matter and he did not approached any body except lodging the complaint with the police and he do not know whether Shekhawati Store has been made a witness in this case.
5. PW2 is Const. Surender who deposed that he alongwith the IO had gone to the Bank State Bank of Bikaner & Jaipur and had obtained two original draft from the Manager Sh. Kapoor and the same were seized by the IO vide memo Ex.PW2/A. At the time of cross examination, PW2 deposed that he do not remember as to when they had gone to the Bank and he do not remember the time. He do not remember the number of the draft which FIR No. 180/91 5 of 24 PS Lahori Gate were seized by the IO and the Manager Mr. Kapoor had signed the memo while he gave the drafts and one draft was of amount Rs.10,000/ and the other Rs.6759/ approximately. He further deposed that in his presence statement of any witness was not recorded.
6. PW3 is SI Raj Singh who deposed that on 18.03.92 he was posted at PS Lahori Gate and the investigation of this case was handed over to him and he search for the accused Pritpal Singh but he could be traced and he recorded the statement of witnesses and after completion of investigation the challan was filed through SHO.
During cross examination PW3 deposed that he had recorded the statement of witnesses on 27.07.92 and again said 17.07.92. he further deposed that he had recorded the statement of Bank Manager Sh. K.K. Kapoor at his office at Connaught Place, Advocate Mahindru and public witness Ashok Kumar, Sharad Kumar and Pawan Kumar and Guptaji and he was alone at that time. He had recorded these statement on one day. He denied the suggestion that he had obtained signature of witnesses on plain papers.
7. PW4 is SI Manoj who deposed that on 04.06.91 he was FIR No. 180/91 6 of 24 PS Lahori Gate posted at PS Lahori Gate as Duty Officer who received the rukka by ASI Suresh Kumar and on the basis of same registered present FIR.
8. PW5 is Sh. Dalip Sharma who deposed that on 26.04.2000 he was present at Vaishnu Hotel Fatehpuri at about 7.30 pm and IO alongwith HC Surender Singh and accused met him and PW5 joined the investigation and went to Karkardooma and IO made a search of House No. 381, AGCR Enclave, KKD Court, Delhi vide Ex.PW5/A and seized document of admitting handwriting in which IO gave A1 and A2 number vide memo Ex.PW5/B and IO Vineet Soni recorded statement of PW5.
At the time of cross examination, PW5 deposed that he met IO near his hotel thereafter he joined the investigation and IO informed about the facts of the case to him and after joining the investigation they went to KKD on the same day and IO recorded his statement at KKD and IO recorded his statement in front of HC Surender Singh.
9. PW6 is Sh. Sarad Kumar who deposed that he is doing the business of rice and foodgrains and he is partner in Sarad Kumar Pawan Kumar. He further deposed that draft No. 776759 drawn at State Bank of Bikaner and Jaipur of amount Rs.6754.65 paisa and there is no FIR No. 180/91 7 of 24 PS Lahori Gate signatures on the draft Ex.PW6/A and neither the draft was issued by him or by their partnership firm and he do not know how this Bank draft was encashed in the name of their firm and IO recorded his statement on 17.07.92.
At the time of cross examination, PW6 deposed that he do not know the accused who was present in the court.
10. PW7 is Sh. K.N. Madhvan who deposed that on 02.07.91 he was posted at Canara Bank, Queens Road Branch, Delhi as Senior Manager and M/s Bhambhri Financers was having D.D. Discount (third party) limit of Rs.15,00,000/ given by Canara Bank and generally M/s Bhambhri Financers availing this facility from their bank and M/s Bhambhri Financers were tendering various demand drafts, issued in favour of third party and these drafts were being lodged by them for collection in clearing and for their proceeds being credited to their account and the drafts, according to Bank practice are endorsed by the first payee to M/s Bhambhri Financers, who in turn guaranteed the endorsement of first payee and on such guarantee the draft were accepted by their Bank, which were tendered by M/s Bhambhri Financers and after acceptance of these drafts, they paid amount to M/s FIR No. 180/91 8 of 24 PS Lahori Gate Bhambhri Financers and thereafter, the drafts were sent for collection through clearing and he made complaint to police vide Ex.PW7/A and he lodged a complaint with police on the basis that some cheques were inserted by Bhambhri Financers into the demand drafts and the same were bounced alongwith demand drafts.
11. PW8 is Inspector Vineet Soni who deposed that on 17.04.2000 he was posted as InCharge, Police Post Church Mission Road, KPS Lahori Gate, Delhi and on this date, he received the above said case file for further investigation and on perusal of file it was found that the accused was declared PO in year 1997 and was arrested as PO on 14.04.2000 and was in judicial custody and an application for his production warrant was moved in the court and PW8 finally appeared in the court of Sh. D.S. Siddhu MM from judicial custody on 26.04.2000. He further deposed that he had moved an application in the court for interrogation of accused and after permission from the court accused was interrogated and formally arrested in the present case and one day PC remand of accused was obtained and PW8 recorded disclosure statement of accused and they went to house of accused to get recovery and made search and nothing incriminating was recovered from the FIR No. 180/91 9 of 24 PS Lahori Gate possession of accused and two documents of admitted handwriting were obtained and seized and serial No. A1 and A2 were given to those documents and PW8 also took three original Bank drafts by taking permission from the court and permission was granted by the court. PW8 further deposed that he took specimen handwriting of accused person on nine sheets and thereafter, accused was sent to JC and on 13.05.04 all the 14 documents were deposited at CFSL, New Delhi through Const. Ajay Kumar and during investigation he recorded the statement of witnesses and after completion of investigation, supplementary challan was filed in the court through SHO.
At the time of cross examination PW8 deposed that accused was arrested as he became PO in the present case vide Kalandra u/s 41 (1) (c) CrPC and he took permission from the court and made formal arrest of accused in the present case and as per his knowledge, there was no other case, except the present one, pending against the accused.
12. PW9 is ASI Surender Singh who deposed that on 26.04.2000 he was posted at P.P. C.M. Road, PS Lahori Gate as HC and on that day he alongwith IO Vineet Soni had come to Tis Hazari Courts where Accused Pritpal Singh was produced from JC in the Court and FIR No. 180/91 10 of 24 PS Lahori Gate after taking the permission from the Court SI Vineet Soni interrogated the Accused Pritpal Singh and formally arrested and obtained one day PC remand of the Accused and during police custody he made his disclosure statement which was recorded and thereafter they alongwith accused arrived at the house of accused 381, AGCR Enclave where Dilip Sharma was also joined in the investigation and search of the house of accused was conducted but no relevant document recovered. PW9 further deposed that accused himself produced two incomplete papers stating it his handwriting before IO which were given Mark A1 and A2 and were taken into police possession and PW9 got medical examination of accused conducted from Bara Hindu Rao Hospital and thereafter they arrived at the PP CM Road where with consent of the accused his handwriting specimen were taken on the three sets of three papers.
At the time of cross examination, PW9 deposed that he cannot tell the address of the public witness namely Dilip Sharma. On the same day he had taken for medical examination of the accused. He cannot tell the exact time of medical examination of accused.
13. PW10 is Inspector Jawahar Singh who deposed that he was previously posted at PS Lahori Gate as SI and on 05.12.91 case FIR No. 180/91 was handed over to him for further investigation and he traced FIR No. 180/91 11 of 24 PS Lahori Gate out the address of accused Pritpal Singh, S/o Agya Singh, R/o 381, AGCR Enclave, Karkardooma Extn., Delhi and tried to arrest the accused but was not found present at his native address. He further deposed that his brother Gurpal Singh told that he is residing on the ground floor and visits casually at the given address and then PW10 recorded the supplementary statement of Manager, Canara Bank Sh. K.N. Madhavan and also recorded statement of witness Rakesh Kumar M/s Hazari Lal and Rakesh Kumar, 584, Gali Ghanteshwarwali, Katra Neel, Delhi and on 04.02.92 he took a DD No. 140/90 dt. 14.06.90 which was in favour of Ashok Kumar from New Bank of India, Karol Bagh Branch which is clearing branch of New Bank of India of DDs through seizure memo from Bank Manager Sh. D.S. Yadav. PW10 also recorded statement of Sh. D.S. Yadav, Bank Manager, New Bank of India and then he was transferred on 18.03.92 to Special Protection Group, P.M. House and case file was handed over to MHCR.
At the time of cross examination, PW10 deposed that he never met Ashok Kumar and he had not done any investigation regarding Ashok Kumar and voluntarily he only remember perhaps Ashok Kumar had given a complaint in the PS. PW10 further deposed that he do not know / remember whether the complaint is there on court FIR No. 180/91 12 of 24 PS Lahori Gate file and he has done the investigation in the present case from 05.12.91 to 18.03.92.
14. PW11 is SI Rajeshwar who deposed that on 14.04.2000 he was posted at PS Lahori Gate as HC and he was Incharge of the PO Staff and on that day he alongwith Const. Vinay Baksh proceeded from PS to search / trace the PO and they received on secret information that in present case FIR No. 180/91 accused Pritpal Singh was present at his house. He further deposed that he tallied the name of accused Pritpal Singh in the PO list and they arrived at 381, AGCR Enclave where accused Pritpal Singh was standing in his shop and PW11 asked him whether you are Pritpal Singh and he told him that you are PO in present case and thereafter PW11 arrested him in the present case u/s 41 CrPC and conducted his personal search and prepared Kalandra u/s 41 CrPC and produced the accused in the concerned court.
At the time of cross examination, PW11 deposed that he received secret information at around 9.30 am on the abovesaid date and the secret informer remained with him for about 10 minutes and secret information was received by him at Fatehpuri Police Booth. He further deposed that he reached the house of accused at 11.00 am and he have FIR No. 180/91 13 of 24 PS Lahori Gate not recorded any statement at the time of arrest of accused person and he asked the name of accused and he told him that he is Pritpal Singh. He further deposed that he reached at the house of accused on his own scooter.
15. PW12 is HC Ajay Singh who deposed that on 12.05.2000 he was posted at PS Lahori Gate as Const. and on that day IO SI Vineet Soni handed over him forwarding letter No. 634 with three original drafts, two admitted handwriting and nine specimen handwriting (total 14 sheets) to him to deposit at FSL, Malviya Nagar, Delhi. He further deposed that as per the instructions of IO he deposited the abovesaid 14 sheets with forwarding letter to FSL, Malviya Nagar and after obtaining receipt from FSL on duplicate copy of forwarding letter, handed over same to IO SI Vineet Soni and abovesaid 14 sheets were not tampered by anybody so far in his custody.
16. On 26.06.12, statement of accused was recorded and all the incriminating evidence was put to the Accused u/s 313 CrPC in which accused denied all the allegations made against him. Accused choose not to lead any defence evidence.
FIR No. 180/91 14 of 24 PS Lahori Gate
17. At the time of final arguments, it is submitted by Ld. APP for the State that all the ingredients of the Sections of IPC has been completed and nothing more remains to be established in the present case. In reply to this it is argued by the counsel for accused that person namely Ashok Kumar never got examined and the purchaser of Bank draft also not examined at all. All the ingredients of Sections under which the charge has been framed not proved at all. It is further argued that accused has filed indemnity bond to indemnify the Bank in case of any loss and they could have debited the same amount from his account which was having sufficient balance at the relevant time.
18. I have given thoughtful consideration to the rival contentions made on behalf of both the sides, perused the judicial file very carefully. There are certain contradictions in the prosecution version. PW1 at the time of cross examination deposed that he had not personally inquired from the post office regarding the lost draft. PW1 further deposed that he had not approached Bhambhri Finance regarding the encashment of the draft in question. PW8 deposed that nothing incriminating was recovered from the possession of accused and already two documents of admitted handwriting were obtained and seized vide FIR No. 180/91 15 of 24 PS Lahori Gate memo Ex.PW5/B. PW9 also deposed that on search of the house of accused no relevant document were recovered. PW10 at the time of cross examination deposed that he had never met Ashok Kumar and had not done any investigation regarding Ashok Kumar. Other witnesses also miserably fails to connect the present accused with the commission of alleged offence. Some relevant witnesses were never investigated by the police agency as well as produced on behalf of the prosecution which creates strong doubt over the prosecution version. Uninterrupted chain to connect the accused with the commission of the present offence cannot be constructed and I sees no hesitation in giving benefit of doubt to the accused in the present case. Due to the abovementioned contradictions in the evidence lead on behalf of prosecution and in the absence of any independent public witness joins or produced on behalf of prosecution also creates great doubt over the version of prosecution. This failure on the part of prosecution creates reasonable doubts in the prosecution story. In this regard reliance may be placed on the following case laws: In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
FIR No. 180/91 16 of 24 PS Lahori Gate
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. in the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 69, the Hon'ble Punjab & Haryana High Court held as under:
FIR No. 180/91 17 of 24 PS Lahori Gate
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the FIR No. 180/91 18 of 24 PS Lahori Gate independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer FIR No. 180/91 19 of 24 PS Lahori Gate is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks credibility, the benefit of doubt necessarily has to go to the accused".
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2.
Both the witnesses supported the prosecution version in terms of the recovery of opium from FIR No. 180/91 20 of 24 PS Lahori Gate the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under: "that the recovery is proved by three police officials who have differed on who snatched FIR No. 180/91 21 of 24 PS Lahori Gate the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
19. The manner in which the search of the Accused was conducted on the spot is also not satisfactory as the police persons had not offered their own search to the Accused before taking the search of Accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty Vs. State of Orissa, wherein it was held as under:
"10. The next part of the prosecution case is FIR No. 180/91 22 of 24 PS Lahori Gate relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See ARI 1969 SC 53:(1969 Cri L.J.
279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, FIR No. 180/91 23 of 24 PS Lahori Gate my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by abovesaid case law, it can be said that search of the Accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.
20. In view of the aforesaid discussion, I am of the considered opinion that prosecution miserably fails to prove its case beyond reasonable doubt as such the duty of proving the same lies on the prosecution. Accordingly, Accused is acquitted. Bail Bond stands cancelled and Surety be discharged. Original documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. File be consigned to the Record Room after due compliance.
Announced in the open Court (DEVENDER NAIN) on 28th day of June, 2012 MM(NORTH06):DELHI FIR No. 180/91 24 of 24 PS Lahori Gate