Delhi District Court
State vs . Deepender Saini on 26 November, 2022
IN THE COURT OF SHRI KAPIL GUPTA
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 301/07
CIS No. : 56660-16
PS : Mandir Marg
State Vs. Deepender Saini
JUDGMENT
A Case Identification 56660-16
Number
B Name of the Sh. V. K. Pandey
Complainant
C Name of the accused Sh. Deepender Saini
D Offence complained U/s 420/468/471 IPC
of
E Date of Institution 01.07.2008
F Offence Charged U/s 420/468/471IPC
G Plea of accused Not guilty
H Order Reserved on 07.11.2022
I Date of 26.11.2022
Pronouncement
J Final Order Acquittal
FIR No. 301/07 State Vs. Deepender Saini Page 1 of 16
1. In brief, facts of the case as alleged by the prosecution are that FIR No. 301/07 dated 03.09.2017 was got registered at Police Station Mandir Marg u/s 420/468/471 IPC upon the complaint of Sh. V.K. Pandey alleging that on 27.08.2007 being in employment with NDMC, Palika Kendra, Connaught Place, accused issued forged letter dated 27.08.2007 in favour of Karamchand Thapar & Bro. (CS Ltd.) vide letter No. D-1147/HQ/Elect in which forged permission for the installation of DG set to the company vide letter Mark-A was given and the accused handed over the same forged letter as genuine by issuing the same and he thereby committed offence punishable u/s 468/471 of IPC. It is alleged that during the course of aforementioned transaction, the accused received Rs. 2,000/- cash from one Sanjeev Mishra and in lieu of the same accused gave the said letter to Sanjeev Mishra and the said act had resulted in wrongful gain to the accused and wrongful loss to the NDMC and hence an offence of cheating punishable u/s 420 of IPC was committed. Upon completion of investigation, the final report in the form of charge-sheet was forwarded to the Court for trial of accused for commission of offence u/s 420/471/468 IPC.
2. After taking cognizance of the offence, the accused was summoned and after compliance of Section 207 CrPC and further after hearing the parties concerned, the accused was discharged as per order dated 17.10.2012, however, the said order was set aside by the Ld. Sessions Court vide order dated 17.05.2013 and charge for commission of offence under Section 420/471/468 IPC was served upon the accused on 24.02.2015 to which he pleaded not guilty and claimed trial.
3. In order to prove its case against the accused, the prosecution FIR No. 301/07 State Vs. Deepender Saini Page 2 of 16 examined 10 witnesses.
4. Sh. Sanjeev Mishra was examined as PW-1 who deposed that he had handed over original letter no. D1147/H favouring his firm M/s Karam Chand Thapar issued by NDMC to the IO. He deposed that he used to visit the NDMC office to seek permission on behalf of his company for DG Set and there accused Dipender Saini who was identified by him as present in the court helped him taking permission for DG Set by helping him with payment of the fee and applying for the permission for the DG Set. He deposed that he had asked the accused to get his work done as early as possible and also assured him that he was ready to bear the expenses for getting his work done early and accused assured him to get his work done within one or two weeks. He further deposed that he received a call from the accused wherein he stated that his work has been done and he asked the witness to take the permission letter from him and he went to the NDMC office on 18th Floor and received the permission letter from the accused and also paid Rs. 2000/- for the same. He deposed that later it was revealed that permission letter given to him by the accused was the forged one. He correctly identified the letter dated 27.08 2007 given to him by accused and the same was exhibited as Ex. P1.
5. In his cross-examination he stated only on one occasion he had visited the NDMC office prior to meeting with the accused. He stated that he had filled up application form and had paid fee of Rs. 7,500/- (Seventy Five Hundred) by way of demand draft and Mr. C.S. Khirbat had put up his signature on the application, however, the said person was not accompanying him at the time of submission of application. He stated that he had handed over the draft to the accused for submission. He stated that he did not make any inquiry from the NDMC office with regard to the FIR No. 301/07 State Vs. Deepender Saini Page 3 of 16 genuineness of the receipt and never met with the accused after collecting the permission letter from him and after one and a half month of submitting the permission letter with the company, he learnt that the permission letter was not genuine and was fake and he had told the police that had given Rs 2000/- to the accused as reward and voluntarily stated that accused had told him that there would be expenses of Rs. 2000/-. He stated that no proceedings were conducted by the police in his presence at the time when he pointed out towards the accused at the NDMC office.
6. Sh. V.K. Pandey was examined as PW-2 who deposed that on 03.09.2007 he was called by the Secretary, NDMC and given the copy of permission for installation of DG set and was enquired whether permission was issued from his office or not and after seeing the permission he informed that the permission was not issued from the of EE- Headquarter and is forged. He further deposed that Secretary NDMC had directed to lodge FIR against the forged permission issued from his office.
7. In his cross examination he stated that the copy of the forged NOC issued and received from Secretary NDMC was given to the police by him. He stated that he had not submitted any other documents because the police officer did not ask him.
8. PW-2 Sh. V. K. Pandey was further examined U/s 311 CrPC in terms of order dated 20.11.2019 and he stated that the demand draft for the sum of Rs 7500/- deposited by Sanjeev Mishra (M/s Karamchand Thaper & Brothers) for obtaining permission of the DG Set was encashed in NDMC treasury and the document was exhibited as Ex.P-X1(Colly). He stated that he had issued a letter no. D/325/EEHQ dated 30.08.2007 in which he had demanded certain documents to complete the formalities FIR No. 301/07 State Vs. Deepender Saini Page 4 of 16 before issuing of the NOC for DG Set and such documents earlier Mark A were exhibited as Ex.P X2(Colly) and the document vide which he had demanded certain document was separately exhibited as Ex PX3, however he stated that the department did not receive the requisite documents which were demanded vide letter Ex P-X3 and thus the application was kept pending and no NOC was issued by their department to the applicant and he further stated that Ex P-1 i.e NOC/ permission was not issued by their department. He stated that at the relevant time, the serial number series mentioned on Ex.P-1 was not being used by the department and the series which was being used by our department was D/325/EEHQ. In his cross- examination he stated that the accused was not working under his supervision/jurisdiction at the relevant time.
9. Sh. Ganesh Seth was examined as PW-3 who deposed M/s Karamchand Thapar & Brothers (CS) Ltd produced a doubtful sanction as NDMC requires permission from 5-7 different agencies before granting sanction and also because it was in a very short time. He further deposed that he approached NDMC and was shocked to know that they had not granted any permission/sanction and the document produced was forged.
10. In his cross-examination he denied the suggestion that since there was litigation with M/s Karamchand Thapar & Brothers (CS) Ltd, he has deposed falsely.
11. Sh. Sudhir Kumar was examined as PW-4 who deposed that in year 2007 he came to know that a sanction letter had been issued for installation of generator at 85A, Panchkuian Road, Reeshamukh Building under his signature and the signature were appearing to be forged and even the permissions for installation of generator were not under his jurisdiction and FIR No. 301/07 State Vs. Deepender Saini Page 5 of 16 such permissions were being entertained by the then Executive Engineer, Technical, Sh. V.K Pandey. He correctly identified the stamps Ex. P1 and P2 and the printer Ex P3. It is pertinent to mention that Pullanda of case property i.e. stamp was kept in unsealed envelop. In his cross examination he stated that the printer Ex. P3 is commonly available in the market and seal Ex. P1 and P2 can be prepared by anybody in the market.
12. PW-4 was further examined U/s 311 CrPC in terms of order dated 20.11.2019 and he stated that he cannot tell about whether the demand draft for a sum of Rs 7500 deposited by Sanjeev Mishra same was encashed in the account of NDMC. He stated that signature at point Q-2 of Ex P-2 (Colly) are not his. He was not cross examined despite opportunity being given.
13. PW-5 ASI Dilawar Singh deposed that he had recorded the present FIR. He was not cross examined despite opportunity being given.
14. Sh. M.P. Dheer was examined as PW-6 who deposed that on 27.05.2008, the police had come in the office of Executive Engineer (D/N), Sh. Sudhir Kumar and the then Executive Engineer called him and reported the matter in the presence of the police. He deposed that the rubber stamp of the Executive Engineer remained in his office in the drawer of his Junior Assistant who used to do the work of diary and dispatch and the said stamps were taken into police custody in his presence and of the other officers and the seizure memo of the same is Ex. PW-6/A, bearing his signature at point A. Ld. APP for the State sought permission to cross examine the witness, as the witness was partially resiling from his statement given to the police u/s. 161 Cr.PC and the same was allowed. In the cross-examination the witness admitted that the accused Deepender FIR No. 301/07 State Vs. Deepender Saini Page 6 of 16 Saini used to work as Khalasi (Temporary employee in the NDMC) and he cannot say whether accused was working as computer operator in their office since August 2007 to March 2008. He denied the suggestion that accused used to use the stamp of Executive Engineer for his official duties. He stated that the stamps were not recovered by the police in his presence.
15. In his cross-examination on behalf of the accused he stated that around 10 to 12 person might have been working in the office of Executive Engineer at the relevant time. He stated that he had signed the seizure memo in the office of the Executive Engineer. He stated that the Junior Assistant was present on that day in his office.
16. PW-6 was further examined U/s 311 CrPC in terms of order dated 20.11.2019 and he stated that he cannot tell about the demand draft of Rs. 7500 deposed by Sanjeev Mishra for obtaining permission of the DG Set and whether same was encashed in the account of NDMC. He further stated that letter Ex. P1 was not issued from his office. In his cross examination he stated that he has no concern with the said letter and the said department as the same was not issued by his department.
17. PW SI Gurmail Singh was examined as PW-7 and he stated that he had seized documents vide seizure memo Ex. PW 1/A He deposed that he had obtained signatures/handwriting of certain people for the purpose of sending them to FSL. He was called for cross examination in terms of the application under Section 311 CrPC after opportunity for the same was earlier closed.
18. In his cross examination, PW-7 stated that he stated that he had not taken the specimen signature and handwriting of accused and had not FIR No. 301/07 State Vs. Deepender Saini Page 7 of 16 seized the computer printer.
19. Ct. Manoj was examined as PW-8 who deposed that he had joined investigation of the present case with IO/SI Sanjeev Mathur and said SI Sanjeev Mathur had interrogated the accused. He stated that the accused had given disclosure statement that he got prepared forged paper in lieu of money and confessed his role in the present case. He stated that from the NDMC office, accused got recovered two stamps from the office of Electrical Engineer. Accused was correctly identified by the witness.
20. In his cross examination, he denied the suggestion that the accused had not given any disclosure statement to the IO. He stated that the IO had requested employees in the NDMC office to join the investigation but none agreed. He stated that Sh Sudhir Kumar, Electrical Engineer was sitting in front of the table where the accused had taken out the two stamps, however, the drawer of the table was not locked at that time and two stamps were sealed with the seal of GS. He stated that he had not told the IO in his statement that the Deepender Saini had got prepared forged paper in lieu of money. He denied the suggestion that the accused had not got recovered the stamps from the NDMC Office.
21. SI Sanjeev Mathur was examined as PW-9 who deposed that witness Sanjeev Mishra gave his Supplementary statement in which he said that accused Deepender Saini had given the forged letter to him and also further told that he paid Rs. 2000/- to accused Deepender Saini for the forged letter and the accused passed the forged letter as genuine. He further deposed that he recovered two stamps at the instance of accused Deepender Saini NDMC office vide seizure memo Ex. PW6/A. He correctly identified the accused present in the court.
FIR No. 301/07 State Vs. Deepender Saini Page 8 of 1622. During cross-examination of PW-9 he stated that the room from where the two stamps were seized was being used by the other staff of NDMC and the drawer from where the two stamps were seized was not in the exclusive possession of the accused and the same not locked and it used to remain open. He admitted that anybody could have accessed the said drawer from where the two stamps were seized. He stated that Sanjeev Mishra had voluntarily told him in his statement that the accused had not demanded any money from him and he had given Rs. 2000/- to accused on his own accord. He stated that the computer printer was not sent to expert opinion. He denied the suggestion that the accused had not got recovered any stamp from the drawer of NDMC office.
23. Ms. Deepa Verma was examined as PW-10 who deposed that she had examined documents which were sent for opinion and prepared report on 17.02.2011 vide FSL No. 2008/D-0690 and the same was exhibited as Ex. PW10/A. The witness correctly identified the questioned documents Ex. P2. In her cross examination she stated that no question writing could be connected with the sample writing of the accused.
24. In the statement of the accused recorded on 03.09.2019 under Section 313CrPC he stated that he is innocent and he has been falsely implicated in this case. He further stated that PW-1 Sanjeev Mishra had met him in the lobby of NDMC office, Palika Kendra and asked him about the place where the application for installing the DG was to be submitted and the accused told the same and no money was paid to him by Sanjeev Mishra. He stated that he had never handed over any permission to Sanjeev Mishra for installing the DG. He also stated that no stamp or any other incriminating article was recovered from him or at his instance and his FIR No. 301/07 State Vs. Deepender Saini Page 9 of 16 signatures were obtained by the IO in the police station on several already written and blank papers. In the additional statement of the accused U/s 313 CrPC, he took a similar defence.
25. I have heard the arguments put forth by the Ld. APP for the State and by Ld. Defence Counsel. I have also perused the material available on record.
26. It was argued by Ld. APP for the state that the prosecution has successfully proved its case beyond all reasonable doubt and that accused had forged the sanction letter and demanded illegal amount for the same. It is further argued that there are enough evidences available on record to bring home the guilt of the accused and has accordingly prayed for conviction of the accused.
27. Per contra, Ld. Counsel for the accused argued that there are no witnesses who could testify that the documents were forged by the accused and the amount was given to the accused as a reward and not for getting the sanction. It was further argued that case of the prosecution is full of contradictions and prosecution has failed to prove its case beyond reasonable doubt, accordingly accused be given benefit of doubt and be acquitted of all the charges.
28. It is settled principle of criminal law that an accused is presumed to be innocent until proven guilty and the burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt by bringing on record reliable and credible evidence. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond reasonable doubt, unless otherwise so provided by any statute.
FIR No. 301/07 State Vs. Deepender Saini Page 10 of 1629. Section 415 IPC provides as follows:
Section 415 Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
30. Section 420 IPC provides as follows:
Section 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.
31. The issue to be considered is whether on the basis of evidence adduced or the documents produced, the alleged offence of accused handing over forged letter and taking money for the same and thereby causing cheating in terms of Section 420 IPC is made out. The ingredients of Section 420 IPC as per judgement of V.Y. Jose & Anr. vs. State of Gujarat & Anr.; 2009 (1) RCR (criminal) 869 (SC) are:
(a) Deception of a person either by making a false or misleading representation or by other action or omission;FIR No. 301/07 State Vs. Deepender Saini Page 11 of 16
(b) Fraudulently or dishonestly inducing any person to deliver any property; or
(c) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
32. In view of the above discussion it is observed that in order to bring home the guilt of the accused, the prosecution had the burden to prove that there was a dishonest inducement on part of the accused which lead to delivery of property by the complainant. In the present case, any witness including the complainant when examined as a prosecution witness has not alleged that the sum of Rs. 2,000/- was taken by the accused while inducing him. The prosecution could also not prove that the amount of Rs. 2,000/- was demanded by the accused and in fact the main witness i.e. the complainant stated that the said amount was given as a reward to the accused and not for issuance of the letter. Thus, there is no evidence on record to prove that any dishonest inducement was practised by the accused to get property delivered by the complainant. Thus, the prosecution failed to establish the ingredients of offence under Section 420 IPC alleged against the accused in the present matter beyond reasonable doubt and therefore, the accused is acquitted of the offence under Section 420 IPC.
33. The other offences the accused has been charged with are Sections 468/471 IPC. Before discussing the provisions of Section 468/471 IPC, it is relevant to discuss the other relevant provisions of the IPC.
FIR No. 301/07 State Vs. Deepender Saini Page 12 of 1634. Section 463 IPC provides as follows:
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 to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
35. Section 464 IPC provides as follows:
Section 464 Making a false document -A person is said to make a false document or false electronic record-- First --Who dishonestly or fradu- lently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic 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 --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an FIR No. 301/07 State Vs. Deepender Saini Page 13 of 16 electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
36. The backbone of the ingredients of the offence under Section 468 and 471 IPC are that there should be forgery under Section 463 and forgery in turn depends upon creation of a false document as defined in Section 464 IPC.
37. Section 468 IPC provides as follows:
Section 468 Forgery for purpose of cheating-Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either de- scription for a term which may extend to seven years, and shall also be liable to fine
38. Section 471 IPC provides as follows:
Section 471 Using as genuine a forged [document or electronic record]- 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].
39. The Principles of Law governing the offence of forgery under Section 468/471 IPC as can be culled out from their definition are as follows:
FIR No. 301/07 State Vs. Deepender Saini Page 14 of 16a) The accused must have made a forged document or a part of such document
b) The false document was made to deceit or intention to deceive and secondly, actual or possible injury cause to some person or persons.
c) The document was prepared for the purpose of cheating.
d) The forged document is used as genuine
40. In the present case, the first and foremost ingredient that the prosecution was required to prove through cogent evidence was that it was the accused who had forged the permission letter by putting forged signature. Upon perusal of all evidences and material available on record, it is observed that there is no direct or indirect evidence that the signature on the permission letter was either forged by the accused or that the same were got forged at the instance of accused and even none of the witnesses could prove such allegations. Moreover, even as per the FSL report, the specimen signature and handwriting of the accused did not tally with that in the permission letter. Furthermore, there is no material available on record to point out that accused used the forged letter as genuine. While it may be true that the permission letter was forged, however, it could not be proved that the accused had forged the letter. Further, the statement of the witnesses recorded by IO U/s 161 Cr.P.C. cannot be considered to be the conclusive proof of the commission of alleged offence and even the disclosure statement of the accused regarding the said offence cannot be the sole proof of the establishment of the fact of alleged offences. Thus, considering the material available on record and discussions as held above, there are no evidence of probative value to show that the accused was involved in any way in forging the document in question or used them as FIR No. 301/07 State Vs. Deepender Saini Page 15 of 16 genuine and therefore the accused is acquitted of the offence under Section 468/471 IPC.
41. The court is of the considered view in light of the above discussion that the prosecution has completely failed to prove that alleged offences were committed by the accused as nothing incriminating to suggest that the accused committed the offence could be brought on record. Thus, the prosecution failed to establish the ingredients of offence under Section 420/468/471 IPC alleged against the accused in the present matter beyond reasonable doubt.
42. Thus, in view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered opinion that the accused Deepender Saini is not guilty of offence punishable U/s 420/468/471 IPC and accordingly, is hereby acquitted for the offence punishable under Section 420/468/471 IPC.
Announced in the (Kapil Gupta)
court on 26.11.2022 Metropolitan Magistrate - 07
New Delhi District, Patiala House Courts,
New Delhi
FIR No. 301/07 State Vs. Deepender Saini Page 16 of 16