Delhi District Court
State vs Ashok Singh on 6 October, 2023
1
IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District
Patiala House Courts : New Delhi
New No.38964/2016
FIR No.399/1999
P.S. : Connaught Place
Under Section : 419, 420, 467, 468, 471 & 120B of IPC
State Vs. Ashok Singh & Others
ID number of the case : New No.38964/2016 DLND020000051999
Date of commission of : 01.01.1997.
offence
Date of institution of the : 12.05.1999.
case
Name of the complainant : Mr. S.K. Laul,
Chief Manager,
The Federal Bank Limited,
M73, Connaught Place, New Delhi.
Name of accused and : (1) Ashok Singh, S/o Umrao Singh, R/o
address Village Mothi, P.O. Rajaya, P.S. Piro,
District Bhojpur, Bihar.
(2) Roshan Lal @ Satish Sethi, S/o Shri Joga
Ram, R/o Village Pokhri, P.O. Ranman,
District Almora, UttarPradesh (Now
Uttrakhand) & KII/505, Sangam Vihar, New
Delhi.
(3) Shri Girish Chandra Tripathi, S/o Shri
Dhurmun Tiwari, R/o E536B, Gali No. 10,
West Vinod Nagar, Shanti Marg, New Delhi.
(4) Kaushal Kumar, S/o Shri R.D. Sinha, R/o
VPO Kothia, District Darbhanga, Bihar.
(5) Vinod Kumar @ Rajinder Gupta, S/o
Shri Nandji Singh, R/o Village Mothi, P.O.
Rajaya, District Bhojpur, Bihar.
FIR No. 399/1999 State Vs. Ashok & Others Page No. 1
2
(6) Jai Mangal Singh @ Randhir Singh, S/o
Shri Raj Kishore Singh, R/o Village Mothi,
P.O. Rajeya, P.S. Piro, District Bhojpur,
Bihar.
(7) Rajesh Singh, S/o Shri Mahabir Prasad
Singh, R/o A161/5, Mahabir Enclave Part
II, New Delhi.
(8) Parmod Kumar Singh @ Virender
Singh, S/o Shri Suresh Singh, R/o Village
Mothi, P.O. Rajaya, District Bhojpur, Bihar
(Proclaimed Offender).
Offence complained of or : Under Sections : 419, 420, 467, 468, 471 &
proved 120B of the Indian Penal Code, 1860.
Plea of the accused : Pleaded not guilty
Final order : Acquitted in all offences.
Date of judgment : 06.10.2023.
BRIEF STATEMENT OF FACTS FOR THE DECISION
1.The factual matrix in the present case reveals that the accused persons conspired amongst each other and opened fictitious bank accounts in the names of different persons for the purpose of encashment of various instruments of Unit Trust of India. It is alleged that the bank accounts were opened by the accused persons with the introduction of accused Rajesh Singh, who was a regular customer of the Bank. As per the original complaint, the issue arose when the Bank, namely, Federal Bank Limited received a written complaint from one Satish Sethi, who complained that five payments amounting to Rs.1,05,850/ issued by UTI in his name were reported lost. On verification with UTI, it was discovered that those UTI cheques were FIR No. 399/1999 State Vs. Ashok & Others Page No. 2 3 encashed through the Federal Bank. On verification of the Bank records, it was found that the said UTI instruments were collected and credited to savings Bank A/c. No. 14665 in the name of Satish Sethi. The photocopy of the instruments showed that they were revalidated instruments. Thus, it was discovered that the accused persons opened fictitious bank accounts in the names of holders of UTI Instruments for the purpose of encashment of cheques in those fictitious accounts. The bank was kept under the impression that the amount was being credited in the accounts of the actual beneficiaries, however, the amount was actually being credited in the accounts of the accused persons. In this manner, the forged cheques of UTI were presented for encashment at the Federal Bank. The bank accounts were opened by using fake identification documents and the signatures on the said cheques were allegedly forged. In this manner, the present FIR was lodged on the complaint of Shri S.K. Laul, Chief Manager, Federal Bank.
2. After investigation, charge sheet in this matter was filed in the year 1999. Thereafter, charges were framed against the seven accused persons under the following heads :
(a) Charge under Section 419 read with Section 120B of IPC for impersonating as different persons for opening fictitious bank accounts in the bank.FIR No. 399/1999 State Vs. Ashok & Others Page No. 3 4
(b) Charge under Section 420 read with Section 120B of IPC for embezzlement of the amount of cheques, collectively amounting to Rs.4,97,690/, by dishonestly inducing the bank into believing that the amount was being credited and claimed by the real beneficiaries of the UTI instruments.
(c) Charge under Section 468 read with Section 120B of IPC for furnishing forged identity cards for opening fictitious bank accounts.
(d) Charge under Section 467, 471 read with Section 120B of IPC for committing the forgery of signatures/handwritings on the cheques and for using forged identification documents for opening bank accounts.
3. Additionally, charge under Section 379 read with Section 120B of IPC was framed upon accused persons, namely, G.C. Tripathi, Rajesh Singh and Ashok Singh for committing theft of the cheques in question. Notably, the allegation states that these three accused persons had stolen the cheques, which were later executed by putting false signatures and were presented for encashment in fictitious bank accounts.
4. After the framing of charge, the matter was kept for prosecution evidence as the accused persons pleaded not guilty and claimed trial.
5. The prosecution first examined PW1 Shri R.J. Singh, who FIR No. 399/1999 State Vs. Ashok & Others Page No. 4 5 deposed that he was working as Senior Manager at Mafat Lal Consultancy, which used to provide services to UTI. He deposed that accused G.C. Tripathi used to work in the said office. He denied that accused G.C. Tripathi was arrested in his presence. At this stage, PW1 was crossexamined by Ld. APP for the State, wherein the statement of the witness under Section 161 Cr.PC was put to him. PW1 denied making any such statement. PW1 also could not tell whether his signatures were present on the arrest memo Ex. P1.
6. PW1 was not crossexamined on behalf of the accused persons despite opportunity.
7. Thereafter, the prosecution examined PW2 Shri Dinesh Singh, who deposed that he did not know anything about the present case. He could not tell whether his ration card was used in opening any bank account at Federal Bank. PW2 was also crossexamined by Ld. APP for the State wherein he denied the incriminating suggestions given to him. The statement recorded under Section 161 Cr.PC was also denied by PW2. Furthermore, PW2 also denied his signatures on the seizure memo of ration card Ex. PW2/A.
8. PW2 was not crossexamined by Ld. Counsel for accused persons despite opportunity.
9. Thereafter, the prosecution examined Shri Satish Kumar Sethi as PW3, who deposed that he had one scheme in UTI which had matured in 19891990 and he had gone to UTI to ask for payment. The FIR No. 399/1999 State Vs. Ashok & Others Page No. 5 6 concerned official of UTI informed him that the same has already been encashed from Federal Bank. He further deposed that he had given a formal complaint in that regard to UTI only and he had never met any police official. He also denied any statement being recorded by any police official during investigation of this case. PW3 was also cross examined by Ld. APP for State, wherein he denied the suggestion of meeting any police official during investigation. PW3 also denied his statement under Section 161 Cr.PC.
10. PW3 was not crossexamined by Ld. Counsel for accused persons despite opportunity.
11. Thereafter, the prosecution examined Shri Ishwar Chander Vij as PW4, who deposed that he could identify the signatures of the complainant, namely, Shri S.K. Laul on seizure memo Ex. PW4/B. He further deposed that he could also identify the signature of Shri K.K. Narayan on seizure memo Ex. PW4/C.
12. PW4 was crossexamined on behalf of accused G.C. Tripathi and Kaushal, wherein he deposed that the documents Ex. PW 4/A, Ex. PW4/B and Ex. PW4/C were neither prepared by him nor signed by him. During further crossexamination, PW4 deposed that he had compared the signatures of the said two persons and had identified accordingly. Remaining crossexamination of PW4 is only on the point of seizure and is not required to be reproduced further.
13. The remaining accused persons adopted the above cross FIR No. 399/1999 State Vs. Ashok & Others Page No. 6 7 examination.
14. The prosecution then examined PW5 Shri N.K. Ahuja, who deposed that accused G.C. Tripathi was working as a Peon at Mafat Lal Consultancy Services and his salary was disbursed by his firm, namely, M/s. Ahuja Brothers Pvt. Ltd. PW5 further deposed that he had handed over the documents to the I.O. vide seizure memo Ex. PW5/A. During crossexamination, PW5 deposed that he had not given the original documents to the I.O. during investigation and the seizure memo only pertained to photocopy documents.
15. Thereafter, the prosecution examined Shri Dharam Dev as PW6, who deposed that in the year 1999, he was posted as Legal Manager with Unit Trust of India and at that time, some Unit Holders of UTI Scheme GMIS91 complained of not receiving the maturity cheques on their investment. He further deposed that on investigation, the cheques issued to the Unit Holders were found encashed from Federal Bank at Connaught Place, New Delhi. He further deposed that a letter dated 13.05.1999 was sent to Federal Bank seeking the details of beneficiries and the said letter bears his signatures.
16. PW6 was not crossexamined by Ld. Counsel for accused persons despite opportunity.
17. Thereafter, the prosecution examined PW7 Shri Atul Kohli, who deposed that Central Bank of India at Janpath, New Delhi has no record of UTI A/c. No. 471.
FIR No. 399/1999 State Vs. Ashok & Others Page No. 7 818. PW7 was not crossexamined by Ld. Counsel for accused persons despite opportunity.
19. Thereafter, the prosecution examined PW8 Shri Yagya Dutt, who deposed that on 18.05.1999, he was posted as Constable at Police Station Connaught Place, New Delhi. On that day, accused Rajesh led PW8 and I.O. to H. No. 22/234, Dayal Park, to search for accused Ashok. However, accused Ashok was not found and instead, accused Jai Mangal was found, who had opened an account in the name of Randhir Singh. Accused Jai Mangal was arrested vide arrest memo Ex. PW8/A and then accused Rajesh led them to H. No. RJD44, Vijay Enclave, Palam, where accused Vinod was found, who had opened an account in the name of Rajender Kumar Gupta. Thereafter, arrest memos of the accused persons were prepared, disclosure statements were recorded and specimen signatures were obtained. At the time of evidence, PW8 could not identify accused Jai Mangal due to lapse of time.
20. During crossexamination, PW8 could not remember about the police officials, who were a part of the raiding party. He could not remember whetehr any effort was made by the I.O. to join any public witness. He could not remember the time of arrival and departure or even the time of arrest.
21. The prosecution then examined PW9 ASI Jagdish, who reiterated the version given by PW8. PW9 could not identify either Jai Mangal or Vinod, despite deposing that they were arrested in his presence.
FIR No. 399/1999 State Vs. Ashok & Others Page No. 8 922. PW9 was crossexamined by Ld. APP for State, wherein Ld. APP gave certain suggestions to PW9 from the version of the prosecution and PW9 stated the entire version to be correct. During crossexamination on behalf of the accused persons, PW9 could not recollect the time of arrival or departure of the raiding party. He stated it to be correct that a D.D. entry was made by the I.O. at the time of leaving.
23. Thereafter, prosecution examined PW10 H.C. Ravinder Pal Singh, who deposed that the specimen signatures of the accused persons were taken by the I.O. in his presence. He also deposed that the alleged account opening forms were handed over to the I.O. by Chief Manager of Federal Bank on 14.05.1999.
24. During crossexamination, certain suggestions were givento rebut the testimony of PW10, however, the same are not being reproduced being irrelevant.
25. The prosecution then examined PW11 ASI Nawab Singh, who deposed that he had joined the investigation on 01.06.1999 with the I.O. He further deposed that accused Kaushal Kumar was arrested in his presence and his specimen signatures as well as disclosure statement were obtained in his presence.
26. During crossexamination, PW11 deposed that the specimen signatures were obtained at P.S. Connaught Place, New Delhi. He could not tell the time. He also could not tell whether any permission FIR No. 399/1999 State Vs. Ashok & Others Page No. 9 10 to obtain specimen signatures as taken from the Court or not. He admitted that the accused was not presented before the Court either before or after the recording of specimen signatures.
27. Thereafter, the prosecution examined PW12 ASI Basti Ram, who deposed that on 21.05.1999, at about 1:30 to 2:00 p.m., one Ashok came to Police Station Connaught Plce, New Delhi and met the I.O. in his presence. He deposed that the accused was arrested in his presence vide arrest memo Ex. PW12/D and his disclosure was also recorded. The testimony of PW12 primarily pertains to the preparation of arrest memo, recording of disclosure statements and is not material for the merits of the case. PW12 failed to correctly identify acused Ashok in the Court. PW12 was crossexamined by Ld. APP for the State and could identify accused Ashok only after being pointed by Ld. APP for State. The remaining crossexamination of PW12 is neither incriminating nor material for the merits of the case and the same is not being reproduced for brevity.
28. Thereafter, the prosecution examined PW13 Inspector Dhan Singh, who deposed that on 12.05.1999, he received D.D. Entry No. 27A, which is Ex. PW13/A from the Duty Officer stating that a man was held up during fraud at Federal Bank. Thereafter, PW13 reached the Bank and found Chief Manager S.K. Laul, who pointed out towards two male persons saying that they were committing the fraud in the Bank. Thereafter, two persons, namely, accused Rajesh and Pramod were brought to the Police Station. Thereafter, the accused persons were FIR No. 399/1999 State Vs. Ashok & Others Page No. 10 11 arrested and a seizure memo was prepared. Crucially, PW13 failed to identify accused Rajesh and Pramod in the Court. During cross examination, PW13 denied the suggestion that he was not present in the Police Station at the time of arrest of accused persons and that he never joined investigation of the case. He further deposed that he did not see whether the complainant gave a written complaint to the I.O. Thereafter, various suggestions were given to PW13 to impeach the truthfulness of his version, however, he denied the same.
29. The prosecution then examined PW14 H.C. Chand Singh, who deposed that on 26.09.1999, accused Roshan Lal had surrendered before the Court and he was arrested by I.O./S.I. Surender in his presence. PW14 was not crossexamined despite opportunity.
30. Thereafter, the prosecution examined PW15 I.O./ACP Surender Singh, who deposed that on 12.05.1999, Chief Manager of Federal Bank had given a complaint Ex. PW4/A regarding cheating committed by certain persons at the Bank. He further deposed that accused Rajesh and Pramod Kumar were arrested by him on the same date as they were handed over by the Chief Manager. The I.O./PW15 has corroborated the version of the remaining PWs regarding the arrest of the accused persons, preparation of seizure and personal search memo as well as regarding the recording of disclosure statements of the accused persons. He further deposed that on 13.05.1999, he had prepared the pointing out memo Ex. PW9/C at the instance of accused Rajesh Singh and pointing out memo Ex. PW15/E at the instance of accused Rajesh FIR No. 399/1999 State Vs. Ashok & Others Page No. 11 12 Singh. He further deposed that on 20.05.1999, he had seized certain documents from Shri K.K. Narayan, Manager, Federal Bank, vide seizure memo, already Ex. PW4/C. He further deposed that the specimen signatures/handwritings of the accused persons were obtained by him vide Ex. PW14/C (of accused Roshan Lal) and Ex. PW10/A (collectively of remaining accused persons). PW15 further deposed that all the questioned documents along with specimen samples were sent to FSL for expert opinion and the report of scientific examination was placed on record on 02.06.2000 vide letter dated 02.06.2000, which is Ex. PW15/I. PW15 further deposed about the letters sent by him to Mafat Lal Consultancy, Federal Bank and Punjab National Bank for various documents pertaining to the transaction.
31. During crossexamination, PW15 deposed that he could not recollect the exact date of arrest of accused Jai Mangal. He further deposed that he did not recover any document with respect to the present transaction from accused Jai Mangal. During crossexamination on behalf of accused Rajesh, PW15 deposed that he had arrested the accused from the Federal Bank itself. He denied the suggestion that no one was arrested at the instance of accused Rajesh. He stated it to be correct that no document was recovered from the possession of accused Rajesh. During crossexamination on behalf of accused Ashok Singh, he deposed that he could not recollect the date of arrest of the accused. The crossexamination on behalf of the remaining accused persons is an exact replica of the crossexamination conducted by Ld. Counsel for accused Ashok Singh and the same is not being reproduced for brevity.
FIR No. 399/1999 State Vs. Ashok & Others Page No. 12 1332. Thereafter, the prosecution examined PW16 ASI Karam Veer Singh, who deposed that on 12.05.1999, he had registered the FIR Ex. PW16/A on receiving a rukka sent by S.I. Surender Singh. PW16 was not crossexamined on behalf of the accused persons despite opportunity.
33. Lastly, the prosecution examined PW17 Shri S.K. Laul, the main complainant in the case. He deposed that on 12.05.1999, he had made a written complaint to P.S. Connaught Place alleging fraud committed by accused persons, namely, Rajesh Singh, Randhir Singh, Rajender Kumar, Satish Sethi, N.C. Saxena and Virender Singh. He confirmed his signatures on the complaint Ex. PW4/A at point A. He further deposed that he had enclosed certain documents along with the complaint such as photocopy of savings account opening forms, in the names of accused Rajesh and the victims in whose names the savings accounts were opened. He had also supplied Form 6o along copy of ration card, employers letter, cash remittance voucher and photocopy of UTI instruments in the names of Virender Singh, N.C. Saxena and Vaninder Cheema. He further deposed that the police had come to Federal Bank at M73, Connaught Place and had arrested accused Rajesh Singh and Pramod Kumar Singh vide already exhibited arrest memos. He further deposed that the disclosure statements of the accused persons were recorded in his presence and their personal search memos were also prepared in his presence. PW17 correctly identified accused Rajesh Singh, present in the Court on the date of examination. He further deposed that the original cheques used for encashment of the amounts FIR No. 399/1999 State Vs. Ashok & Others Page No. 13 14 were also provided by him to the concerned I.O. He further deposed that his statement was recorded by the I.O. on 11.06.1999 and that the accounts were opened in the names of the actual beneficiaries on the introduction of accused Rajesh Singh. He further deposed that all the accounts were opened when the individuals visited the branch and after matching the photographs with the individuals. He further deposed that the case of Virender Singh and N.C. Saxena, the certificate from employer was also taken as an additional precaution. He further deposed that the main criteria for opening the accounts was the introduction by Rajesh Singh, who was already an account holder in the bank. He further deposed that the cheque dated 05.12.1998 for Rs.42,340/ was cleared by Shri Jamesh P. George, Senior Manager. The cheques of Nirmal Sood and Ramesh Chand were credited by Man Mohan Gupta, Assistant Manager. PW17 could not identify any accused person, except accused Rajesh Singh.
34. During crossexamination, PW17 deposed that he got to know about the alleged cheating from the complaint of one Satish Sethi. He further deposed that Satish Sethi had given the complaint to the Manager, Administration, namely, Shri K.K. Narayan, who used to sit in the same branch. He further deposed that the complainant had submitted orally to Shri K.K. Narayan and Shri Satish Sethi had never disclosed to him either in oral or in writing. He further deposed that the complaint given by him to the Police was written by Shri K.K. Narayan. However, the said complaint did not bear the signatures of Shri K.K. Narayan. He further deposed that at the time of writing the complaint, he was broadly FIR No. 399/1999 State Vs. Ashok & Others Page No. 14 15 aware of the case. He stated it to be correct that accused Rajesh Singh had an account in their branch. He further deposed that the documents given by accused Rajesh Singh while standing as an introducer, were genuine documents. He further deposed that he never met Satish Sethi. He further deposed that in his presence police had inquired from Man Mohan Gupta, K.K. Narayan and Jamesh B. George, who were the Bank officials involved in the transaction pertaining to this case. He further deposed that accused Rajesh Singh was a regular customer of the bank and was holding a valid bank account in the branch. He further deposed that the documents submitted by accused Rajesh Singh at the time of opening the alleged bank accounts were genuine. He further deposed that he could not tell whether the amount which came in the account of Rajesh Singh, was a result of the investment by the accused in sale and purchase of the shares.
35. During further crossexamination on behalf of accused persons G.C. Tripathi and Kaushal, PW17 deposed that the signatures of the depositor on the deposit slips was not mandatory at that point of time. He stated it to be correct that the signatures of the accused G.C. Tripathi and Kaushal were not there on the deposit slips. He further deposed that at the time of opening of the account the documents mentioned in Form 60 were verified from the originals provided by the account holder. He further deposed that the account opening form Ex. PW17/D1 did not have any column for affixation of photograph and also that the photograph on the said form was stapled and not pasted. He further deposed that the bank customers of the branch, who were alleged FIR No. 399/1999 State Vs. Ashok & Others Page No. 15 16 cheated, never made any direct complaint to PW17. He stated it to be correct that the complainant Satish Sethi had no account in their branch.
36. After the conclusion of prosecution evidence the matter was fixed for recording the statement of the accused persons under Section 281 read with Section 313 of Cr.PC, wherein the entire incriminating material was put to the accused persons. By way of a joint statement given by all the accused persons, it was submitted that the complaint was false in nature. Accused Rajesh Singh specifically stated that he was a regular customer of the bank and it was for this reason that PW17 identified him as he used to visit the bank regularly. The entire evidence was denied by the accused persons and it was stated that the prosecution witnesses, especially the police witnesses, had deposed against them as they were interested witnesses.
37. Thereafter, the matter was fixed for final arguments.
38. Final arguments were advanced by Ld. APP on behalf of State as well as by Ld. Counsel for accused persons.
39. Ld. APP for the State submitted that the prosecution has proved its case beyond reasonable doubt and all the witnesses have invariably supported the case of the prosecution.
40. Per contra, it is submitted by Ld. Counsel for accused persons that the story of the prosecution, especially the testimony of the complainant, suffers from material inconsistencies and the case has not FIR No. 399/1999 State Vs. Ashok & Others Page No. 16 17 been proved beyond reasonable doubt. He further submitted that the prosecution has failed to prove any relation of the accused persons with the alleged act. It is further submitted that no incriminating document was recovered from the accused persons. It is further submitted that the original complainant Satish Sethi did not even have a bank account in the concerned branch and, therefore his signatures could not have been forged. It is further submitted that six material witnesses of the prosecution have turned hostile and others have also not supported the case of the prosecution.
41. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. It is also settled that the case must be proved beyond reasonable doubt and all the essential ingredients of the alleged offences must be established on wellestablished parameters. So far as the burden of proof is concerned, the primary burden is to be discharged by the prosecution and once the prosecution is able to establish the material ingredients from the facts of the case, the burden shifts upon the accused to rebut the same or to point out deficiencies in the case of the prosecution. Needless to observe, the deficiencies must be of a character which meets the test of reasonable doubt. Minor inconsistencies, contradictions or deficiencies are generally considered to be inadequate for demolishing the case of the prosecution.
42. Before proceeding, I may reproduce Section 420 of the Indian Penal Code for ready reference, which reads thus: FIR No. 399/1999 State Vs. Ashok & Others Page No. 17 18
420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
43. Section 420 IPC culminates two elements of cheating and delivery of property as a result of deception followed by inducement in a dishonest manner. Whereas, the latter element is fairly clear, the former derives its meaning from Section 415 IPC, which reads thus:
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 omis sion 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.
FIR No. 399/1999 State Vs. Ashok & Others Page No. 18 1944. I may now briefly lay down the ingredients required for proving the offence under question. For bringing home the charge under Section 420 of IPC, it is essential that -
(a) The accused deceives any person by doing any act including a false representation;
(b) The deception results in dishonest or fraudulent inducement of any person to deliver any property to any person, or 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.
45. For proving the offence under Section 468 and 471 of IPC, the basic ingredient is of forgery as provided under Section 463 of IPC. It may be noted that forgery is making of any false document with the intent to cause damage or injury to any person or to support any claim or title or to cause any person to part with property etc. The essential ingredient of forgery is making of a false document which is defined in Section 464 of IPC. In Mohd. Ibrahim Vs. State of Bihar, 2009 (8) SCC 751, Section 464 of IPC was explained by the Hon'ble Supreme Court and was divided into three categories. The relevant para may be reproduced as :
"14.An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:FIR No. 399/1999 State Vs. Ashok & Others Page No. 19 20
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."
46. In addition to the above, Section 468 penalizes forgery with an intention to use the forged document for the purpose of cheating and Section 471 penalizes dishonest or fraudulent use of any forged document as genuine despite knowing or having reason to believe that it was forged. So far as Section 467 of IPC is concerned, the same gets attracted when forgery is of a valuable security. Needless to observe, the FIR No. 399/1999 State Vs. Ashok & Others Page No. 20 21 element of forgery is implicit in Section 467 IPC. The accused persons have been charged under the said provision due to the fact that the forgery in this case also pertains to cheques (deemed to be valuable security as defined in Section 30 of IPC). So far as Section 419 of IPC is concerned, it punishes cheating by impersonation and the same is attracted when a person cheats by pretending to be some other person or by representing that he is a person other than he really is, as defined in Section 416 of IPC.
47. Coming to the evidence led on behalf of the prosecution, it is the foremost requirement of criminal law that the prosecution must establish three essential attributes - actus reus, mens rea and causal link between the crime and accused on trial. The actus reus required in this case is of deception (for the offence under Section 420), misrepresentation by the accused persons by pretending to be some other person (for the offence under Section 419 IPC), making of false document/cheque/valuable security and forgery thereof for the purpose of cheating (for the offence under Section 467 & 468), use of the said forged document as genuine (for the offence under Section 471). So far as the mens rea is concerned, all the offences in question primarily require a dishonest or fraudulent intention.
48. Out of the 17 witnesses examined by the prosecution, four witnesses - PW1, PW2, PW3 and PW4 have turned hostile and have not been able to disclose anything incriminating on the merits of the case. All these witnesses were crossexamined by Ld. APP for the State FIR No. 399/1999 State Vs. Ashok & Others Page No. 21 22 as they were not corroborating their statements recorded under Section 161 Cr.PC. The facts disclosed by them were solely based on the suggestions given by Ld. APP for the State and not as a result of voluntarily deposition before the Court. Although, the statements under Section 161 Cr.PC do not have any evidentiary value, however, it is fairly settled in light of Section 162 Cr.PC that such statements can be used for the purpose of contradiction. In this case, the statements of the aforesaid witnesses, as given in the Court and as recorded under Section 161 Cr.PC, are completely contradictory and are not worthy of any credit.
49. The statement of PW5 only pertains to the grant of salary to accused G.C. Tripathi and has no bearing on the merits of the case. The witnesses from Unit Trust of India and Central Bank of India have also failed to bring home any allegation. The police witnesses in the case i.e. PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15 & PW16 have primarily deposed regarding the procedural steps taken by them during the course of investigation. They have primarily deposed about the arrest of the accused persons, preparation of seizure and personal search memos and recording of disclosure statements. There is no quarrel between the parties on the compliance of procedural safeguards. The primary concern of the prosecution was to prove the ingredients essential of the offences in question. The procedural safeguards are meant to lend credibility to the entire exercise of the prosecution through which the evidences are collected by the investigating officer. No doubt, procedural safeguards hold a prominent FIR No. 399/1999 State Vs. Ashok & Others Page No. 22 23 place in the scheme of criminal law, however, guilt is to be established by proving essential ingredients. In this case, the prosecution has not been able to establish the basic ingredients of the offences and, therefore, the procedural aspects are immaterial for deciding the question of culpability of the accused persons. PW15 had prepared two pointing out memos of accused Rajesh Singh. However, the memos only record the pointing of the houses of two accused persons. The said memos, taken on their face value, only reveal that the accused Rajesh was known to the other two accused persons, namely, Jai Mangal and Vinod. The same is not a disputed fact. No discovery of any incriminating document or of any proceeds of cheating was made at the instance of any accused person. Therefore, the pointing out memos do not further the case of the prosecution.
50. PW17 is the main witness on behalf of the prosecution. He has firstly deposed that the fraud was committed by the accused persons, namely, Rajesh Singh, Randhir Singh, Rajender Kumar Gupta, Satish Sethi, N.C. Saxena and Virender Singh. It may be noted at the outset that as per the case of prosecution, the said persons are not the accused persons. Infact, they were the victims of the alleged act of cheating. Be that as it may, the same may have been recorded due to lapse of a considerable time from the date of offence. PW17 has proved that the documents including the account opening forms, identification documents and alleged cheques were provided by him to the I.O. of the case. He has given a statement that the alleged documents were forged and fabricated documents and that the accused persons had executed the FIR No. 399/1999 State Vs. Ashok & Others Page No. 23 24 same by pretending to be the actual account holders. However, the acts of forgery, impersonation and deception are required to be established by cogent evidence, by matching signatures, handwritings and by proving their presence at the time of alleged impersonation. A witness is supposed to depose on these factual aspects and is not supposed to give his opinion on the question of guilt of the accused persons. Furthermore, it is admitted that the original complainant Satish Sethi had given his complaint orally to Shri K.K. Narayan and no complaint, whatsoever, was given to PW17. It is also admitted that PW17 got to know about the complaint from Shri K.K. Narayan. PW17 has admittedly relied upon the version of the allegations levelled by Satish Sethi, as informed to him by Shri K.K. Narayan. It is also admitted that PW17 never met the original complainant Satish Sethi. In such circumstances, the version put forth by PW17 could not be said to be an outcome of his personal knowledge about the facts of the case. The said version could only qualify as hearsay evidence.
51. Even otherwise, it is a matter of record that the said Shri K.K. Narayan was never examined by the prosecution. Furthermore, the cheques were encashed by presenting the same to two bank officials, namely, Shri Man Mohan Gupta and James B. George. PW17 has deposed that Police had conducted an inquiry from the said bank officials. However, none of those bank officials were enlisted as witnesses by the I.O. and they were not examined as witnesses for the prosecution. The only person examined from the bank is PW17, who had never interacted with the original complainant of the case. It is FIR No. 399/1999 State Vs. Ashok & Others Page No. 24 25 difficult to understand as to why the I.O. never enlisted the bank officials as witnesses in the case, despite inquiring from them. The only reasonable conclusion is that the statements of the bank witnesses may have been exculpatory in nature and may have been in the teeth of the version presented by the prosecution through other witnesses.
52. It is fairly settled that the Court is required to examine the impact of a deficiency in the case of the prosecution from the standard of reasonable doubt. In this case, the failure of the prosecution to examine the bank officials is fatal to the case. It is so because the cheques were presented to those officials and the fact of impersonation could only have been proved by the officials, who actually handled the requests of the accused persons when they visited the Bank. Even for the allegations of opening fictitious accounts on the basis of forged documents, the prosecution was bound to examine the bank officials, who had interacted with the accused persons at the time of opening accounts and who had accepted the said documents after due verification. PW17 has deposed that the accounts are opened after proper verification by the bank officials. If the said statement is to be believed, the same would be contrary to the case of the prosecution and infact, the same would raise a grave suspicion on the bank officials, who accepted forged and fabricated documents for opening fictitious bank accounts. No investigation at all was made into the conduct of the bank officials. It is difficult to accept that the accused persons managed to open fictitious bank accounts on the basis of forged and fabricated documents despite proper verification conducted by the bank officials.
FIR No. 399/1999 State Vs. Ashok & Others Page No. 25 2653. Interestingly, the prosecution has also not proved that the bank accounts opened at the instance of accused persons were actually fictitious in nature. It is so because the prosecution did not examine any of the victims of the alleged act of cheating, except Satish Kumar Sethi. Allegedly, the accounts were opened in the names of multiple persons. The said victim was examined as PW3 and did not disclose anything incriminating against the accused persons. Infact, PW3 was cross examined by Ld. APP for State as he had turned hostile. At the cost of repetition, it may be noted that no written or oral complaint was given by any of the victims of the alleged act either to the bank or to the police. Therefore, there is nothing on record to prove that fictitious bank accounts were opened in the names of certain policy holders of UTI. The allegation that the accused persons had encashed certain sums of money from the policy accounts of the said policy holders, also remains unproved as no money trail has been proved by the prosecution. Even going by the usual course of things, it is unavoidable to highlight that none of the said stated victims complained of not receiving their policy amount. Therefore, the financial trail remains not proved and it cannot be ruled out that the amounts may have been credited into the correct accounts.
54. In light of the above discussion, I am of the considered view that the prosecution has miserably failed to prove inducement (as no bank official, who was allegedly induced, has been examined), impersonation (as no person, before whom the accused persons presented to be someone else, has been examined), delivery of property FIR No. 399/1999 State Vs. Ashok & Others Page No. 26 27 (as no financial trail has been established either through documentary evidence or by the statements of the victims) and use of any forged document by the accused persons (as none of the witnesses have deposed that the documents were indeed submitted by the accused persons in the bank). The only witness, who has deposed on these facts, is PW17, who admittedly had no personal knowledge of the offence. Moreover, PW17 had never interacted with any of the accused persons in the course of this transaction. Although, PW17 identified accused Rajesh Singh in the Court, he failed to identify any of the remaining accused persons. The identification of accused Rajesh Singh has been explained from the fact that he used to visit the branch frequently, being a regular customer. I see nothing on record to doubt the explanation.
55. I may now come on the allegation of forgery. It is fairly settled that forgery requires making of a false document. For proving so, PW15 had obtained specimen handwriting/signature samples of the accused persons and the same were sent for comparison to FSL along with questioned documents. Notably, charge sheet in this case was filed without the report of scientific examination. After multiple communications sent to Director, FSL, the report was filed by the I.O. on 05.07.2000. On the same day, copy of the report was provided to the accused persons. It is appalling to note that the said report of FSL was never exhibited by the prosecution. Till date, the report is lying on the record without exhibition of the same as evidence on behalf of the prosecution. Furthermore, the report was prepared by Shri Harsh Vardhan, Senior Scientific Officer, FSL. However, the said officer was FIR No. 399/1999 State Vs. Ashok & Others Page No. 27 28 never called as a witness for the prosecution for the purpose of proving the report. Even if we go by Section 293 Cr.PC, it is fairly clear that a report of scientific examination by FSL is presumed to be genuine. However, even for the purpose of doing so, the same is required to be exhibited on behalf of the prosecution, so that it can either be admitted or denied by the accused persons under Section 294 Cr.PC. Since, the report was never exhibited in evidence, the accused persons got no opportunity to put questions on the same or to impeach its credibility. Therefore, the FSL report cannot be read in evidence and is liable to be rejected from the scope of consideration in this case.
56. It is fairly settled that while appreciating evidence, the ultimate test is judicial satisfaction of the Court. As observed above, the primary burden to prove the ingredients of an offence rests upon the shoulders of the prosecution. It is correct that some inconsistencies or contradictions may always appear in the natural course of testimony. However, the Court has to examine whether the inconsistencies or contradictions are of a material nature or not. The Court has also to examine whether the inconsistencies or contradictions have been explained to the satisfaction of the Court. In the present case, there iare grounds to entertain suspicion against the accused persons. However, suspicion cannot take the place of proof and is not sufficient to prove criminal liability. The prosecution was obliged to establish, beyond any reasonable doubt, that the alleged acts were indeed committed and that too by the accused persons herein. Invariably, a link of causation has to be established between the alleged offence and the accused. While FIR No. 399/1999 State Vs. Ashok & Others Page No. 28 29 arriving at the guilt of an accused, the Court cannot be driven by suspicion alone. The basic ingredients must be established beyond any reasonable doubt. In this case, in my considered opinion, the prosecution has failed to do so.
57. In light of the above discussion, I am of the considered view that the prosecution has failed to prove the ingredients of the offences charged in this case. The material on record is only sufficient for raising a suspicion on the accused persons and is grossly inadequate for proving their guilt beyond reasonable doubt. Accordingly, the accused persons are hereby acquitted from all the charges levelled upon them.
58. Before parting, I am compelled to note that the aforesaid failure on the part of the prosecution is, in my view, a serious issue. Without expressing more on the evidentiary value of the report for deciding the question of guilt of the accused persons, I suffice it to say that the same could have been material. It is fairly clear that the primary purpose of the prosecution is to prosecute on behalf of the State by keeping in view the larger purpose of ensuring that the real culprits are held accountable and are punished after a fair trial following the due process of law. Pertinently, the prosecution has an important responsibility on its shoulders i.e. to secure public justice. In a criminal case, justice is not limited to the parties involved in the case, rather the outcome of a crime has a ripple effect on the safety and security of the society at large.
FIR No. 399/1999 State Vs. Ashok & Others Page No. 29 3059. This judgment is contained in 30 pages and all pages have been signed by me at the bottom.
60. File be consigned to Record Room after necessary compliance.
Digitally signed by YASHDEEP YASHDEEP CHAHAL CHAHAL Date: 2023.10.06 04:47:10 +0530 Announced in the open Court (Yashdeep Chahal) On 6th October, 2023. M.M.01 : New Delhi District Patiala House Courts : New Delhi. FIR No. 399/1999 State Vs. Ashok & Others Page No. 30