Delhi District Court
State vs Radhey Lal on 17 September, 2012
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATTE -08, ROOM NO.212
DWARKA, DELHI
STATE versus Radhey Lal
FIR No. 316/11
PS: Dwarka South
U/s-420/467/468/471 IPC
1. Serial No. of the case : 0240 5R 0030032012
2. Date of commission of offence : 05.11.2011
3. Name of the complainant : Sh. Arvind Mohan Sharma
s/o Sh. Ashok Kumar
r/o 231, Pocket 1, Sector-1, Dwarka, Delhi
4. Name of the accused, and his : Radhey Lal
parentage and residence S/o Sh. Ambey Prasad
R/o H.No. AB 387, Amarpuri, Ramnagar,
Paharganj, Delhi
5. Date of Reserving Judgment : 05.09.2012
6. Date when judgment was : 17.09.2012
pronounced
7. Offence Complained of : Section 402/467/468/471 IPC
8. Plea of accused : Pleaded not guilty.
9. Final Order : Convicted
10. Date of Order : 17.09.2012.
1
State v. Radhey Lal
FIR no. 316/11
PS Dwarka South
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Briefly stated, the case of the prosecution is that on 05.11.2011, the accused purchased a return air ticket in his name from the complainant Sh. Arvind Mohan Sharma and towards the payment of the same, handed over a cheque bearing no. 706849 drawn on the State Bank of Hyderabad to the complainant, which was signed in the name of Sh. Manoj Kumar Mogha. The said cheque was later dishonoured. It is the case of the prosecution that the accused had committed forgery by signing the said cheque in the name of Sh. Manoj Kumar Mogha and cheated the complainant by inducing him to hand over the air ticket to him. The accused, hence, has been sent to face trial for the offences punishable under Section 420/468/467/471 Indian Penal Code, 1860 (hereinafter referred to as IPC).
2. The investigation of the case commenced upon the complaint of the complainant Sh. Arvind Mohan Sharma. An FIR was lodged. The investigation was completed and charge sheet was filed against the accused under Section 420/467/468/471 IPC on 15.02.2012.
3. Cognizance was taken and provisions of Section 207, CrPC were complied with.
4. Arguments were heard on charge. Prima facie case was made out against the accused and hence a charge for the offences under Section 420/467/468/471 IPC was framed against the accused on 07.06.2012, to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was listed for Prosecution Evidence.
5. The prosecution examined as many as 10 witnesses. PW1 Arvind Mohan Sharma is the complainant in the present case. PW2 is SI Ram Pratap. PW3 is HC Ramesh, the Duty 2 State v. Radhey Lal FIR no. 316/11 PS Dwarka South Officer who registered the FIR. PW4 is Ct. Rajesh. PW5 is Manoj Kumar Mogha, whose cheque book had been allegedly used by the accused to make the payment to the complainant. PW6 is Lekh Ram, Assistant Manager, State Bank of Hyderabad who proved that the impugned cheque book had been issued in the name of Sh. Manoj Kumar Mogha. PW7 is Sh. Jagbir Sharma, Oriental Bank of Commerce who proved the dishonour of the impugned cheque. PW8 is Sh. Anup Chopra, Traffic Officer, Air India who proved on record the e-ticket of the accused and travel certificate dated 24.01.2012 as Ex.PW8/A and Ex.PW8/B respectively. PW9 is SI Manjeet, the IO of the present case. PW10 is Sh. Rajesh Kumar. PE was closed vide order dated 29.08.2012.
6. The statement of the accused under Section 313, CrPC was recorded on 29.08.2012 wherein the accused pleaded that the cheque had been issued by Sh. Manoj Kumar Mogha himself and that he is deposing falsely to avoid the liability to pay. He further stated that the matter had been compromised between the parties and he had offered cash of Rs.4,400/- and his motorcycle to the complainant in lieu of the payment of the air ticket and that the same had been accepted by the complainant. It is further averred that his motorcycle is still lying in the PS. Finally, he has stated that he had been falsely implicated in the present case.
7. The accused was given an opportunity to lead defence evidence but he chose not to do so. Hence, DE was also closed vide order dated 29.08.2012. Thereafter, the matter was listed for final arguments. Arguments were advanced by the Ld. APP and the Ld. Counsel for the accused on 05.09.2012. Thereafter, the matter was reserved for orders.
8. The charge has been framed against the accused under Sections 420/467/468/471 IPC. The prosecution must establish separately, beyond reasonable doubts, that the accused has committed each of the alleged offences or any of the said offences. I would take up each 3 State v. Radhey Lal FIR no. 316/11 PS Dwarka South offence, one by one.
9. The accused has been firstly charged with the offence punishable under Section 420, IPC alleging that he has committed cheating and had dishonestly induced the delivery of a property. Section 420, IPC provides as under:
"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."
10. To bring home this charge, the prosecution must prove the following essential requisites:
a) that the accused had cheated the complainant
b) that by so cheating the complainant, the accused had dishonestly induced the
complainant:
i) to deliver any property to him, or
ii) to make the whole or any part of a valuable security, or
iii) to alter the whole or any part of a valuable security, or
iv) to destroy the whole or any part of a valuable security, or
v) to make anything which is signed or sealed, and which is capable of being converted into a valuable security, or
vi) to alter anything which is signed or sealed, and which is capable of being converted into a valuable security, or
vii) to destroy anything which is signed or sealed, and which is capable of being 4 State v. Radhey Lal FIR no. 316/11 PS Dwarka South converted into a valuable security.
11. Cheating has been defined in Section 415, IPC as under:
"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 to do if he were not deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind and reputation or property, is said to "cheat".
Explanation.- A dishonest concealment of facts is deception within the meaning of this section."
12. Hence, a person is said to cheat when:
a) he deceives any person b) he fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or c) he induces that person to consent that any person shall retain any property, or d) he intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not deceived e) such act or omission causes or is likely to cause damage or harm to that person in body, mind and reputation or property.
13. It is the case of the prosecution that the accused has cheated the complainant in the present case by inducing the complainant to hand over to him return air tickets of Delhi- Chandigarh-Delhi be falsely representing that the cheque issued by him shall be honoured when presented, knowing well that he had no authority to issue that cheque. To prove this fact, the prosecution has relied upon the testimony of PW1 Arvind Mohan Sharma, the 5 State v. Radhey Lal FIR no. 316/11 PS Dwarka South complainant. PW1 deposed on oath in the court that on 05.11.2011, the accused came at his office and purchased a return air ticket in the name of Radhey Lal for Delhi-Chandigarh- Delhi for traveling on 12.11.2011 and 14.11.2011 respectively. He further deposed that the accused took out a cheque book from his bag and signed one cheque in front of him and gave him the signed cheque as a payment for the return ticket. The cheque Ex.PW1/H, which is on record, has been admittedly signed in the name of Manoj Kumar Mogha. He further deposed that on 09.11.2011, when he presented the cheque in his bank, the same was dishonoured and thereafter he came to know that the tickets had already been used after getting the dates changed from the Airlines.
The prosecution examined one Sh. Lekh Ram, Asstt. Manager, State Bank of Hyderabad as PW6, who proved on record that the cheque Ex.PW1/H had been issued in the name of Sh. Manoj Kumar Mogha vide a certificate issued by Sh. B.R. Dhiren, the Branch Manager. The certificate is Ex.PW6/A. In any case, the fact is an admitted one. The accused nowhere alleges that the cheque was issued in his name. He has admitted in his statement under Section 313, CrPC that the cheque belonged to Sh. Manoj Kumar Mogha.
Further, the prosecution examined PW8 Sh. Anup Chopra, Traffic Officer, Air India, who proved e-ticket Ex.PW8/A issued in the favour of the accused on 05.11.2011 for travel on Delhi-Chandigarh-Delhi by flights AI-864 on 07.11.2011 and by AI-863 on 09.11.2011. He further proved on record the travel certificate dated 24.01.2012 issued by Deputy Manager (Finance) SCR, Air India as Ex.PW8/B vide which it is stated that the accused had traveled on the e-ticket Ex.PW8/A. This fact is also admitted by the accused. In his statement under Section 313, CrPC, the accused admits that he had purchased the return air ticket from the complainant and that he got the flights preponed. He further admits that he had traveled on the said ticket.
6State v. Radhey Lal FIR no. 316/11 PS Dwarka South PW1 has clearly deposed in the present case that the accused had signed the cheque in his presence. It is the case of the prosecution that by doing so, the accused had deceived the complainant by representing that he was Manoj Kumar Mogha by signing the cheque in his presence. Further, it is the case of the prosecution that by so deceiving the complainant, the accused induced the complainant to hand over the return air ticket to him, which the complainant would not have done, had he known that the accused was not Manoj Kumar Mogha or that the cheque would be dishonoured. Thirdly, it is argued that this act of the accused caused wrongful loss to the complainant as he never got the payment of his air ticket. In view of the same, the Ld. APP has submitted that the accused cheated the complainant.
The Ld. Counsel for the accused has argued that the accused has been falsely implicated in the present case. He submits that infact on the date of the incident, the accused was accompanied with Shri Manoj Kumar Mogha and that the cheque Ex.PW1/H has been signed by the Manoj Kumar Mogha only. He submits that later on Shri Manoj Kumar Mogha changed the amount and hence the cheque was dishnoured due to 'Insufficiency of Funds'. It is further stated that the said was done only to avoid payment to the complainant and as such the accused has not cheated the complainant in any manner. Counsel for the accused further submits that as per the testimony of PW6 Shri Lekh Ram who produced record pertaining to the account of Shri Mukesh Kumar Mogha whereby it was revealed that the cheque was dishonoured for 'Insufficiency of Funds' and not because 'Signatures differed'. Further PW6 deposed in his cross examination that the signatures of Shri Mukesh Kumar Mogha on the cheque were the same as in the bank. It is submitted by counsel for the accused that in view of the same, it is clear that the cheque in question was issued by Shri Mukesh Kumar Mogha himself and that the accused has been falsely implicated in the present matter. PW6 Lekh Ram further deposed that the signatures of Shri Mukesh Kumar Mogha on the impugned cheque are the same as in the bank. However, his mere opinion cannot be stated to be 7 State v. Radhey Lal FIR no. 316/11 PS Dwarka South conclusive. Nothing on record has been placed to substantiate that the signatures were of Shri Mukesh Kumar Mogha only. In the present case, a sample signatures of the accused, account holder and the cheque in question had been taken and were sent to FSL, Rohini for analysis. The report had been filed. However, no conclusive opinion could be given as to who had signed the impugned cheque Ex.PW1/H. Further more, the complainant in his testimony has clearly stated that the cheque had been signed by the accused in his presence. The complainant was cross examined at length by counsel for the accused. However, his testimony could not be shaken. There is no even a suggestion to the effect that the cheque was issued by Shri Mukesh Kumar Mogha and not the accused. The court finds no reason to disbelieve the testimony of complainant / CW1. Moreover, it is an important fact that when the accused was arrested by the IO and his personal search was conducted. The impugned cheque book from which cheque Ex.PW1/H was drawn was found from the possession of accused. The personal search memo is Ex.PW1/E which suggest that one black bag containing some papers were found in possession of accused. The cheque book was seized by the IO vide memo Ex.PW1/B. Interestingly, the accused had admitted this fact in his examination under Section 313 CrPC, he admitted that the cheque book was recoered from his possession. He merely stated that the cheque book was in his possession as Shri Mukesh Kumar Mogha was his neighbour. The court is not inclined to accept this version as it is highly improbable that a valuable document such as a cheque book of another person be recovered without any plausible explanation. On one hand, accused suggest that the cheque in question had been drawn by Shri Mukesh Kumar Mogha and on the other hand, he accepts the cheque was found in his possession. Had the cheuqe been issued by Shri Mukesh Kumar Mogha, the cheque book would also be in his possession only. The recovery of the cheque book from the possession of accused points towards the involvement of the accused in the present matter.
In view of the same, the court is satisfied that the offence under Section 415 8 State v. Radhey Lal FIR no. 316/11 PS Dwarka South IPC is made out and that the accused has cheated the complainant.
An explanation is also appended to Section 415 IPC. It states that ... concealment of the fact ... is out of meaning of this section and from the testimony of PW1 Shir Arvind Mohan, it is clear that the accused concealed the fact that his name is Radhey Lal and that his name was not Mukesh Kumar Mogha. In view of the same, the offence under Section 415 IPC is made out.
In view of the same, the first essential for making out the offence under Section 420 IPC is made out. Secondly, the prosecution must prove that by so cheating the complainant, the accused had dishonestly induced the complainant to deliver any property to him. The fact is not in dispute. It is admitted fact that the complainant had given an air ticket Ex.PW8/A to the accused. Hence, in the opinion of the court, the prosecution has prove beyond reasonable doubts that the accused has committed offence under Section 420 IPC. Thereafter, the accused has been charged for the commission of offence under Section 467 IPC. Section 467 IPC deals with the forgery of the valuable security. The forgery has been defined under Section 463 IPC as under:
Explanation.- A dishonest concealment of facts is deception within the meaning of this section.
Section 467:
Forgery of valuable security, will etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable 9 State v. Radhey Lal FIR no. 316/11 PS Dwarka South security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Section 463- Forgery.- Whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or cause any person to part with property, or to enter into any express or implied contract, with intent to commit fraud or that fraud may be committed, commits forgery.
For making out the offence, the following essentials should be made out in the light of the present case:-
1. That the accused made any false documents or false fabricated record ;
2. That such false document or forgery record was prepared with an intent to cause damage or injury to any person ;
3. That such false document was fabricated record was prepared to commit fraud.
It is the case of the prosecution that the accused forged the cheque Ex.PW1/H. The word 'document' has been defined under Section 29 IPC and an illustration to this Section suggest that the cheque is also a document.
As discussed earlier, the court is satisfied that the accused had signed the cheque misrepresented to the complainant that he was Mukesh Kumar Mogha. It is also proved on record that the accused had got the flights preponed and travelled on air ticket without making payment of the same. Further it is also proved that the accused cheated the complainant, in view of the above discussions. In these circumstances, the court is of the opinion that the offence of forgery is also made out as all essentials as discussed above have been fulfilled. There was a clear intention to cause damage or injury to the complainant by 10 State v. Radhey Lal FIR no. 316/11 PS Dwarka South not making payment of the air tickets to him. Now the court must examine as to whether graver offence under Section 467 IPC i.e forgery of the valuable security, Will etc, is made out or not.
Section 467 IPC applies where a document which is forged is a valuable security or a Will or an authority to adopt a sign etc. In the present case, former applies as the cheque is a valuable security as alleged by the prosecution. As discussed above, as alleged by the Prosecution. As discussed above, the cheque is undoubtedly a document as provided under Section 29 IPC. Section 30 IPC defines valuable security as under:-
Section 30-
"Valuable security"- The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.
From the definition, it is clear that the document which creates any legal right is a valuable security. In the present case, which was issued by the accused purported to be created a legal right in favour of the complainant and hence it was a valuable security as per definition the cheque falls with last category which provides that any such document by which the person acknowledges that he lies under a legal liability is also a valuable security.
In view of the same, in the opinion of the court, the offence under Section 467 IPC is also made out.
Section 464 IPC defines as to what making false document or forgery record which provides as under:-
The first part of the definition provides that where dishonestly or fraudulently signs, seals or execute a document with an intention that such document be believed that the 11 State v. Radhey Lal FIR no. 316/11 PS Dwarka South same was signed by an authority of a person then makes a false document. In the present case, as discussed earlier, the accused signed the impugned cheque representing that he was Mukesh Kumar Mogha. Hence accused made a false document as provided under Section 464 IPC.
Section 464 Making a false document or electronic record.- A person is said to make a false document or false electronic record-
First - Who dishonestly or fraudulently-
(a) Makes, signs, seals or executes a document or part of a document;
(b) ...
(c) ...
(d) ...
with the intention of causing it to be believed that such a document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- ...
Thirdly-..."
Thereafter the accused has charged with the offence under Section 468 IPC which is for the purpose of cheating. It has already been discussed above that the accused has committed both forgery and cheating. Section 468 IPC is an aggrieved form of forgery wherein forgery document used for the purpose of cheating. Both cheating and forgery are already made out against the accused. The offence under Section 468 IPC is also applicable. Lastly, the accused has been charged for the offence under Section 471 IPC which provides for punishment for reason that the forged document is genuine. As discussed earlier, the 12 State v. Radhey Lal FIR no. 316/11 PS Dwarka South accused used the forged cheque Ex.PW1/H representing that this was genuine cheque and the same shall be honoured. Hence the prosecution as proved beyond doubt that the offence under Section 471 IPC has also been committed by the accused.
Section 468- Forgery of purposes of cheating.- Whoever commits forgery, intending that the document or electronic record forged shall be used for the purposes of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Section 471- Using as genuine a forged document.- Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
Document- Section 29 Section 44 "Injury" - The word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
In view of the above discussions, the court is satisfied that the Prosecution has proved beyond reasonable doubts that the accused has committed each of the offences of which he has been 13 State v. Radhey Lal FIR no. 316/11 PS Dwarka South charged. Hence he is convicted for the offences under sections 420/468/467/471 IPC.
Put up for arguments on sentence on 20.09.2012.
ANNOUNCED IN THE OPEN COURT ON 17.09.2012 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-08 DWARKA COURTS, DELHI 14 State v. Radhey Lal FIR no. 316/11 PS Dwarka South