Delhi District Court
CR Cases/3399/2016 on 22 July, 2022
IN THE COURT OF MS. SALONI SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI.
CR No. 3399/2016
CNR No. DLEP02-000724-2013
FIR No. 541/2010
Under Sections 419/420/468/471/511of IPC
Police Station New Ashok Nagar
State
v.
Brijesh Kumar,
Aged about 33 years,
S/o, Sh. Siyaram,
R/o, Village Nawada Ashrafpur,
Post Mahasir,
Distt. Shahjahanpur, U.P. ...Accused
Date of Institution : 08.02.2013
Date of Reserving order : 12.07.2022
Date of Judgment : 22.07.2022
Final Order : Acquittal
Judgment: -
The accused Brijesh was sent to stand trial for commission of offences
punishable under Sections 419, 420, 468, 471 read with 511 of the Indian Penal
Code, 1860 (for short, "IPC"), based on the First Information Report (FIR)
bearing no. 541 dated 10.11.2010 registered at Police Station (P.S.) New Ashok
Nagar, Delhi.
1.On completion of the investigation, the charge sheet was filed in court on 08.02.2013 and on taking cognizance, the accused was summoned for 03.04.2013. On appearance of the accused, he was supplied with copy of the CR no.3399/2016 Page no.1 of 13 charge sheet in compliance of Section 207 of Code of Criminal Procedure, 1973 ("CrPC"). Opportunity was granted to the accused to make submissions on the point of charge and based on a prima facie case, vide order dated 04.08.2014, charge under Sections 380/467/468/471/419/511/420/511 of IPC were framed against accused. The charges were read over and explained to the accused, to which he pleaded not guilty and claimed trial.
2. To substantiate their case, the prosecution examined three bank officials including Mr. N. Srivastava (then Senior Manager, Indian Overseas Bank, Vasundhara Enclave branch) as PW-1, Mr. Mohd. Aslam (then bank clerk) as PW-3 and Mr.Niranjan Panda (then Chief Manager, Indian Overseas Bank, Kribhco Noida branch as PW-8, and examined the police officials, who participated in the investigation including the Constable (Ct.) Dharmender as PW-2, Ct. Dharmender as PW-4, Inspector Kuldeep Singh as PW-5, duty officer/Assistant Sub-Inspector (ASI) Jagdish Prasad as PW-6, and has examined the expert/ Junior Forensic/Assistant Chemical Examiner of FSL at Rohini as PW-7.
3. The prosecution witnesses have relied upon and placed on record the complaint dated 10.11.2010 made by PW-1 as Exhibit PW-1/A, seizure memo of cheque number 280863, drawn on Indian Overseas Bank, Kribhco branch, Sector-01, Noida (hereinafter referred to as "cheque in question") as Exhibit PW-1/B, arrest memo of the accused dated 11.11.2010 as Exhibit PW-4/A, personal search memo of the accused as Exhibit PW-4/B, tehrir as Exhibit PW-5/A, disclosure statement of the accused as Exhibit PW-5/B, seizure memo of requisition slip for issuing cheque book as Exhibit PW- 5/C, present FIR as Exhibit PW-6/A, the cheque in question as Exhibit P-1, CR no.3399/2016 Page no.2 of 13 the requisition slip as Exhibit P-2, FSL examination report dated 29.09.2014 as Exhibit PW-7/A, and specimen signatures and hand writing of accused as Exhibit PW-5/X-1 to Exhibit PW-5/X-14.
4. The prosecution witnesses were cross-examined on behalf of all the accused persons. On completion of prosecution evidence, the accused were examined under Section 313 read with Section 281 of CrPC, wherein all incriminating evidence/material relied upon by the prosecution was put to him, to which the accused stated that this is a false case and he has been wrongly arrested in this case.
5. Learned Assistant Public Prosecutor (APP) for the State submitted that the prosecution has not examined the account holder, however, the charge has been proved against the accused beyond all reasonable doubt. Learned Advocate for the accused submitted that the prosecution has failed to prove that the cheque in question was produced by the accused and the prosecution has not examined the security guard present at the bank at the time of the alleged accident. He argued that PW-3 has given statement in his examination-in-chief contrary to his previous statement recorded under Section 161 of CrPC and no CCTV footage recordings were collected. He argued that the prosecution has failed to prove their case and the accused is liable to be acquitted.
6. Having perused the material and evidence placed on record during trial and arguments advanced on behalf of all the parties, the following legal point(s) emerge for determination: -
i. Whether the accused committed theft of the cheque requisition CR no.3399/2016 Page no.3 of 13 slip from the cheque book of Ms. Anu Mongia from her house, being used as a human dwelling, and committed an offence under Section 380 of IPC?
ii. Whether the accused forged the particulars on and behind the cheque bearing no. 280863, drawn on Indian Overseas Bank, Kribhco-Noida Branch, of account no. 172501000011912, purportedly a valuable security and committed offence under Section 467 of IPC?
iii. Whether the accused committed the said forgery intending that the said cheque shall be used for the purpose of cheating and committed offence punishable under Section 468 of IPC? iv. Whether you fraudulently or dishonestly used as genuine the cheque in question which he knew or had reason to believe to be a forged document and committed the offence under Section 471 of IPC?
v. Whether the accused attempted to cheat the complainant bank by personating as one Mr. Gaurav Kumar and committed an offence punishable under Section 419/511 of IPC? and vi. Whether you attempted to cheat the complainant bank and thereby dishonestly induced the bank official person deceived to deliver cash of Rs. 9,700/- (Rupees Nine Thousand and Seven Hundred Only) to you for the cheque in question and committed offence under Section 420/511 of IPC?
7. The prosecution version, as detailed in the complaint, Exhibit PW-1/A, is that one person calling himself as Gaurav Kumar presented a cheque bearing no. 280863 dated 10.11.2010, for Rs. 9,700/- (Rupees Nine Thousand and Seven Hundred Only) of account no.172501000011912, drawn on Indian CR no.3399/2016 Page no.4 of 13 Overseas Bank at Kribhco-Noida Branch, for encashment to the Vasundhara Enclave Branch of Indian Overseas Bank. During the routine procedure of passing of cheques, the signatures on the said cheque did not match the specimen signatures. That on inquiry, the said person stated that he had obtained the cheque from the customer of the bank and wanted to encash it, however, on further inquiry, the said person tried to escape from the bank and was caught by some public persons. That the said person later revealed his real name as Brijesh Kumar and not Gaurav Kumar and stated that he had obtained the cheque from the customer for some other purpose and was attempting to fraudulently encash it.
8. The complaint, Exhibit PW-1/A, was made and given at the P.S. by PW-1 and the same has been proved by him. PW-1 in his examination-in-chief has reiterated the version given in the complaint, Exhibit PW-1/A, stating that a person by the name Gaurav came to their branch and presented the bearer cheque for cash, however, it was found that the signatures on the said cheque did not tally with the specimen signatures of the account holder and on enquiry, the said person attempted to flee from the branch bank, but was caught and later his name was revealed as Brijesh. PW-1 is admittedly not an eyewitness to the alleged incident. Further, admittedly it was not in his presence that the accused had been apprehended. PW-1 on the day of the incident was working in the Vasundhara Enclave branch as a Senior Manager and it was only on hearing a commotion that he had come out of his cabin/office to find that the accused had already been caught.
9. PW-8, another bank official, is also not an eyewitness. On the day of the incident, he was posted as Chief Manager in Indian Overseas Bank at their branch office at Sector-1 in Noida, and on receiving information that the CR no.3399/2016 Page no.5 of 13 accused had presented the cheque in question of their customer/account holder Anu Mongia, he had gone to Vasundhara Enclave branch. PW-8 had checked his records and informed that the cheque in question belonged to a series issued to the account holder and provided the police with the requisition slip of the cheque book as Exhibit-P2, which was seized vide the seizure memo, Exhibit PW-5/C. It is not the case of the prosecution that the said requisition slip had been presented with the cheque in question to the complainant bank branch. The said requisition slip seems to have been seized and brought on record to show that the cheque in question was of a cheque book issued to the account holder by the concerned bank branch. It is imperative to consider what this requisition slip is for. The said requisition slip dated 08.11.2010, Exhibit P-2, mentions that it is for a fifteen-leaflet cheque book to the account holder Anu Mongia. The account number mentioned/printed on the requisition slip is 'No 11912'. It also mentions in print, "Please issue me a cheque book containing forms by self/per bearer Shri/Ms", then in continuation bears signatures of 'Grov Kumar'. Further, in continuation it mentions in print, "who will sign as", and in continuation again bears signatures of 'GrovKumar'. It also bears the signatures of the account holder. The requisition slip bears the signatures of the Manager of the bank and is dated 09.11.2010. The serial number of the cheque book printed on the requisition slip is "212681 - 212700". At the same time, it is mentioned in the requisition slip in black ink "280801 -880". The said requisition slip seems to have been presented by someone at the Kribhco branch, based on which said cheque book had been issued by the bank on 09.11.2010. Interestingly, it's the same signature/name 'GrovKumar' on the back of the cheque in question (bearing number of the same said series 280801 -880), which was allegedly presented the very next day on 10.11.2010 at the Vasundhara Enclave branch/complainant bank branch. The CR no.3399/2016 Page no.6 of 13 cheque in question was allegedly presented by the accused, who called himself Gaurav Kumar. It is the name 'Grov Kumar' that is the common denominator in the requisition slip and the cheque in question.
10.The crucial evidence that seems to link the accused to the requisition slip, Exhibit P-2, and the cheque in question, Exhibit P-1, is the FSL examination report, Exhibit PW-7/A. As per the said report, some of the writings including the signatures/writing of 'Grov Kumar' on the requisition slip and at the back of the cheque in question were found similar to the specimen handwriting/signatures of the accused. Further, the writings in the cheque in question including, 'self', 'NINE THOUSEND SEVEEYEN HUNDERED' and '9700', were found similar to the specimen handwriting/signatures of the accused. It is important to note here that the signatures of the account holder made on the requisition slip and the cheque in question were not found similar to the specimen handwriting/signatures of the accused.
11.Now, if it were known, who had presented the said requisition slip for issuance of the cheque book from Kribhco branch, it may throw some light on how the accused allegedly came in possession of the cheque in question or whether it was the accused who had presented the cheque in question at the complainant bank branch. Based on the report, Exhibit PW-7/A, it cannot be assumed that it was the accused, who presented the requisition slip or got issued the cheque book from Kribhco branch. It also cannot be assumed that it's how the accused came in possession of the cheque in question or that it was the accused who had presented the cheque in question at the complainant bank branch. If at all, it is presumed that the accused had presented the requisition slip at the Kribhco branch, in that case it would CR no.3399/2016 Page no.7 of 13 necessarily indicate a lapse (unintentional or otherwise) on the part of bank officials of Kribhco branch to issue a cheque book to a stranger/person without any proper authority. It may well be a possibility that there was a slip on the part of the bank officials of Kribhco branch as it has come on record in testimony of PW-3 that the cheque book (of the cheque in question) had not been fed in the system of the bank, therefore, PW-3 was unable to post the cheque in question. To be certain that it was the accused who presented the requisition slip at Kribhco bank, inquiry ought to have been conducted from the account holder Anu Mongia. However, the prosecution has failed to examine the said account holder or conduct any investigation whatsoever regarding the account holder. It is also not known whether the signatures of the account holder shown on the requisition slip and the cheque in question are of the account holder Anu Mongia. The prosecution has also not produced any evidence to show whether the account holder had issued the requisition slip and/or the cheque in question and/or handed it/them to the accused. There is no evidence to show that the accused had presented the requisition slip at the Kribhco branch and had got issued the cheque book of the account holder. There is certainly no evidence to show that the accused had stolen the cheque book from the house of the account holder Anu Mongia.
12.It is next to be seen whether it was the accused who had presented the bearer cheque in question at the Vasundhara Enclave branch and attempted to cheat the complainant. The only eyewitness to the alleged incident is PW-3, who in his examination-in-chief, has deposed that 10.11.2010 he was working as a clerk at the Vasundhara Enclave bank branch at the service counter and one person came inside the bank and produced the cheque in question for cash. PW-3 has stated that he tried to post the cheque in the computer of the bank CR no.3399/2016 Page no.8 of 13 but found that the cheque book of the said cheque was not fed in the system of the bank, and that the cheque belonged to the Noida Branch. He also stated that he had told that person that the cheque was not fed in the system of the bank on which that person had gone away from there and had come back after 15 minutes. He also stated that he again posted the cheque in the system and after which he sent the cheque to the passing officer for passing of the cheque. PW-3 has further stated that he doubted why that person would try to cash the cheque at this branch, when he could cash it at the Noida Branch. He further stated that he had shared his doubt with the passing officer, who called on the mobile number, which was mentioned on the back of the cheque in question, however, it was found to be a wrong number. He has further stated that when he asked that person how he came in possession of the cheque and why number on the cheque was not responding, that person had attempted to flee from the bank and bank officials started shouting 'chor chor', and that person had been caught by some schoolboys at the staircase of the bank building. PW-3 has also stated that this person had called himself as Gaurav Kumar at that time and the bank manager had called the police at the bank and handed over the accused to the police officials. PW-3 identified accused during his evidence as the same person, who had brought the cheque to get encashed.
13.It is important to mention here that it is not mentioned in the complaint, Exhibit PW-1/A, or in the testimony of PW-1, that the accused had attempted to present the cheque in question to PW-3 or specifically to some other person/bank official. It is vaguely alleged in Exhibit PW-1/A and in testimony of PW-1 that on enquiry from the accused, he had stated that he got the cheque in question from the customer and on further enquiry the accused attempted to flee from the bank. Who had conducted this enquiry CR no.3399/2016 Page no.9 of 13 from the accused is neither mentioned in Exhibit PW-1/A nor in the testimony of PW-1. PW-3 has deposed that it was to him to whom the accused had come and presented the bearer cheque in question, however, it is not his case that he had conducted any enquiry from that person who had produced/presented the cheque in question. In fact, it has come on record for the first time in the testimony of PW-3 that he had then tried to post the cheque in the system but had found that the cheque book had not been fed in the system and then he had returned the cheque to the accused, who came back after fifteen minutes, and then PW-3 had given the cheque to the passing officer. PW-3, during his cross-examination, was confronted with his previous statement recorded under Section 161 of CrPC, Exhibit PW-3/D1, where it is not mentioned that that the accused had again come back to the bank and told him that he had fed the cheque book on which PW-3 had posted the cheque in question to the system of the bank for the passing officer to encash. The version of PW-3 in his testimony seems to be different from his previous statement, Exhibit PW-3/D1. In the said statement, Exhibit PW-3/D1, it is stated that PW-3 had suspicion regarding the signatures of the account holder on the cheque in question and he had enquired from the accused regarding the signatures and PW-3 had called his colleague to check the signatures on which the accused had fled from the bank. Evidently, there are major contradictions in the testimony of PW-3 and his previous statement, which makes his testimony unreliable.
14.Further, if PW-3 was working as clerk, it is unlikely that he would have had any authority to post the cheque or conduct the routine procedure of passing of cheque. PW-3 had not compared the signatures on the cheque in question to the specimen signatures of the account holder in the system. PW-3 has specifically stated in his cross-examination that it was not his duty to check CR no.3399/2016 Page no.10 of 13 the same and he could not say whether the cheque in question had been forged. As per PW-3, he had sent the cheque in question to the passing officer and it was the passing officer, who had called on the mobile number mentioned on the back of the cheque and found it was a wrong number. If PW-3 had not found the discrepancy in the signatures and he had no authority of passing of the cheque, it is doubtful that the bearer cheque had been presented or produced to him at the bank in the first place. It is the passing officer, who was given the cheque, and it is him, who may have noticed the discrepancy regarding the signatures, and it was him who apparently had found that the mobile number on the back of the cheque was incorrect. The passing officer seems to be a material witness and may be the only key eyewitness to the incident, however, the prosecution has not examined the passing officer. The prosecution has also not placed on record any document of the complainant bank branch to show that the cheque book of which the cheque in question was a leaflet was available in the system/computer of the bank branch. The prosecution has also not placed on record the specimen signatures of the account holder to indicate that apparently there was a discrepancy in the signatures of the issuer of the cheque in question and the specimen signatures of the account holder. The prosecution has failed to prove that they had found a discrepancy regarding the signatures, which led them to get suspicious of the accused. The prosecution has also failed to prove beyond reasonable doubt that it was the accused, who had produced the cheque to PW-3, and which led them to discover the alleged cheating.
15.Even the apprehension of the accused seems to be doubtful. It is not the case of the prosecution that any 100 number call had been made to the police on the day of the incident. PW-1 has stated that the accused had been caught by CR no.3399/2016 Page no.11 of 13 some students on the road. PW-1 has also stated that he had given the complaint, Exhibit PW-1/A, at the P.S. and the accused had been handed over to the police. Contrary to this, PW-3 has stated that the bank manager had called the police at the bank and handed over the accused to the police. Further, while PW-4 has stated that he with the IO/PW-5 had gone to the complainant bank, where PW-1 had handed over the accused to them, PW-5 has stated that PW-1 with the accused had come to the P.S. that day in the evening and subsequently the accused was arrested at the P.S. It is not the case of PW-1 or PW-3 that in their presence the accused had been apprehended, while he was allegedly attempting to flee from the bank. The prosecution has not examined the security guard of the bank or any other public witness to show who and how the accused was apprehended at the bank. The above discrepancies not only create doubt on how the accused was apprehended but makes the testimony of PW-3 even more untrustworthy. In view thereof, the offences under Sections 419/511, 420/511, 471 and 468 of IPC cannot be stated to have been proved against the accused.
16.The only evidence against the accused is the FSL report, Exhibit PW-7/A. The question is whether the accused can be convicted for the offence of forgery under Section 467of IPC without any other supporting direct or circumstantial evidence. The Hon'ble Supreme Court in recent decision of Padam Kumar v. State of U.P., Criminal Appeal no. 87 of 2020, dated 14.01.2020, while relying upon their decisions in Magan Bihari Lal v. State of Punjab (1977) 2SCC 210 and Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704, observed that, "...It is fairly well settled that before acting upon the opinion of the handwriting expert, prudence requires that the court must see that such evidence is corroborated by other evidence direct or circumstantial..." The Hon'ble SC has also observed in Padam's CR no.3399/2016 Page no.12 of 13 case (supra), "...So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated..." The FSL examination report has been proved by PW-7 and there is nothing brought on record to doubt the FSL report, Exhibit PW-7/A. However, given the absence of any proof to link the accused to the alleged incident at the complainant bank branch, it would not be prudent to convict the accused for the offence under Section 467 of IPC solely based on the said report, Exhibit PW-7/A.
17.From the above analysis, the Court is of the view that the prosecution has failed to discharge the burden to prove their case against the accused beyond all reasonable doubt. Accordingly, the accused is acquitted of offences under Sections 380/467/468/471 of IPC and Sections 420/419 read with Section 511 of IPC.
Pronounced in Open Court Today on Twenty Second of July of Two Thousand and Twenty-Two.
(SALONI SINGH), Additional Chief Metropolitan Digitally signed Magistrate, East District.
by SALONI
SALONI SINGH
SINGH Date:
2022.07.22
16:24:19 +0530
CR no.3399/2016 Page no.13 of 13