Delhi District Court
Goods, Some Species Of Fiduciary Duty" ... vs Simmons 1972 Ac 487). on 8 August, 2013
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Subodh Kumar
FIR No. 199/10
PS S L Colony
U/s 420/406/468/471 IPC
JUDGMENT
C C No. : 08/03/11
Date of Institution : 22.09.2010
Date of Commission of Offence : Between May 2008 to 14.11.2009
Name of the complainant : K. K. Suri
Name & address of the accused : Subodh Kumar
S/o Late Sh. Kali Charan
R/o 28/886, First Floor
DDA Flats, Madangir
New Delhi
Offence complained of : 406/420/468/471 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted.
Date of reserve for judgment : 06.08.2013
Date of announcing of judgment : 08.08.2013.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this judgment, the court shall decide the present case under Section 406/420/468/471 IPC.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 2
2. Briefly stated prosecution story is that the complainant K. K. Suri used to make his investment in various policies / mutual funds through the accused Subodh Kumar for more than five years. From May 2000 onwards, they had made all the investments by bank cheques from time to time till 14.11.2009 in different schemes like LIC Mutual funds, TATA Mutual Fund, and ABN Amro Asset Management. The accused in the capacity of insurance agent used to deal with the complainant since the year 2006 onwards and had gained their confidence. Taking advantage of their confidence, he, in between May 2008 to 14.11.2009, obtained various cheques from the complainant and his wife on different occasions for deposition of premimum of various policies/ mutual funds/ investment scheme of LIC, ABN AMRO and TATA AIG. However, instead of depositing these cheques in the name of the complainant, he deposited them in his own name and later on withdrawn the said investment by filling up redemption forms. He also used to issue fake receipts of the investments to the complainant. In April 2010 the complainant needed some finance and approached the concerned agency where they came to know that the receipt given by the accused were fake. They went to the other agencies and discovered that all the investment agencies given by the accused are State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 3 fake. It was revealed that the accused had fradulently transfered the money of the complainant in his personal bank account. It is alleged that the accused committed cheating by using forged documents for the purpose of causing wrongful gain to himself and wrongful loss to the complainant and thereby committed an offence under Section 406/420/468/471 IPC.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 406/420/468/471 was framed against him vide order dated 19.02.2011 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined 15 witnesses namely (1) K. K. Suri, (2) Vinod Suri, (3) K. K. Sharma, (4) Kumaresan (5) Indraneel Roy (6) Anish Mahajan (7) Raman Sabbarwal (8) Satish (9) Akhil Khanna (10) Ct. Yameen (11) Ct. Dinesh Negi (12) HC Ashok Kumar (13) Nitin Chaudhary (14) Inspector Krishan Kumar (15) SI P. K. Jha.
5. PW-1 K. K. Suri deposed that on 28.04.2010 he had made a complaint to the SHO PS Sun Light Colony regarding fraud/cheating amounting to Rs. 82.80 Lacs which they had invested in LIC mutual funds, TATA AIG mutual State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 4 funds and ABN Amro mutual funds against the accused. It is deposed that the accused was an employee of M/s H. L.Kapoor & Co. He was introduced to him and his wife by H. L. Kapoor and Co. whose office is situated in NFC Market. It is alleged that the accused used to collect signed cheques from them and also took their signature on an application form sent by M/s H. L. Kapoor and Co. However, he used to destroy those forms and attached his own form with the complainant's cheque and used to redeem them into his own account. The complaint given by the complainant to police is Ex. PW1/A. It is further deposed that on 15.04.2010 they contacted the accused and he admitted that he had committed fraud. He gave a hand written letter in that regard, photocopy of which is Mark A. He deposed that he had given the original statements of account given to them by the accused to the IO vide seizure memo Ex. PW1/B. The witness deposed that he had taken Rs.7.69 Lacs from the police station and the superdarinama is Ex. PW1/C. The photographs of the currency notes are Ex. P1 colly.
6. This witness was recalled for cross examinaion on an application of the accused under Section 311 Cr.P.C on 26.02.2013.
7. In the cross examination, PW-1 stated that they have known the accused State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 5 since the year 2004-2005 through one Rajeev Kapoor, one of the owners of M/s H. L. Kapoor Financial Advisors. He admitted that the accused was only an employee in the said company and all the financial aspects of the client dealing by the company was looked after by Rajeev Kapoor. He admitted that they knew H. L. Kapoor Financial Advisors since the year 2002 and were having good relations with them. He deposed that before meeting with the accused they were already dealing in mutual funds through H. L. Kapoor Financial Advisors and Rajeev Kapoor and H. L. Kapoor used to communicate with them regularly as and when required. He further deposed that at the time of transactions, their relation with Subodh Kumar were just like professional. He deposed that his account was in State Bank of India, Siddharth Extension Branch which is 15 yards from his house and he used to visit the bank on several occassions. He deposed that Rajeev Kapoor had told them that whenever there is suitable scheme of any kind of mutual funds of whom they were there authorised agents, then they would send the application form duly stamped by their company through their authorised marketing executives. In return the complainant and his wife were only required to sign the form and give cross cheques in the name of said mutual fund company. The cheque with State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 6 the application form was to be filed with the said mutual fund company. He deposed that before the accused was introduced to them, Rajeev Kapoor used to do all the formalities regarding mutual funds. He admitted that he does not have any proof of documents changed by the accused by which he had redemeed the amount given by the complainant and his wife. He denied the suggestion that they were treating the accused like a son during transactions. He further denied that they used to give the cheque to the accused along with stamped application form to submit the same for his own mutual fund scheme. He admitted that the police authorities had raided the house of the accused and brought the money of Rs.7.69 Lacs to the PS. He denied the suggestion that no fraud was done by the accused and that the cheques were given to him for his personal mutual fund scheme. He expressed ignorance regarding the fact that the money received from the house of Subodh Kumar had come to him on selling of his house. He admitted that the complaint was made in 2010 and no investment was doone between 2005 to 2006 through the accused. He admitted that they had invested money as guided by H. L. Kapoor and Co. He also denied the suggestion that fraud was not done by Subodh Kumar but by some other person related to H. L. Kapoor Financial Advisors.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 7
8. PW-2 Ms. Vinod Suri has corroborated the testimony of PW-1.
9. PW-3 K. K. Sharma, Retired Deputy Manager, State Bank of India, Siddharth Extension, had brought the photocopy of cheque no. 483700 dated 25.01.2010 in favour of Joginder Pal amounting to Rs.9 Lacs. The photocopy of Payinslip of the said cheque is Mark X.
10.PW-4 Shri Kumaresan, Manager, TATA Asset Management had deposed that he had given 10 original application forms, four additional purchase of accused, 14 original redemption transaction slips and 10 original statement of account in the name of the accused, one copy of letter and a covering letter signed by Shri Ram, Asstt. Regional Vice President on 25.10.2010. He deposed that as per the application form the investment was done by the acucsed and the same were redeemed in his name only. These were done by forgery of cheques of K. K. Suri and Vinod Suri. 10 original application forms and four additional purchase are Ex. PW4/A1 to Ex. PW4/A14. The 10 documents of account statement and one annexure and covering letter issued by Regional Vice President of TATA Asset Management are Ex. PW4/B1 to B12. The 14 original redemption transactions are Ex. PW4/C1 to Ex. PW4/C14.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 8
11.PW-5 Inderneel Roy, Senior Divisional Manager, LIC had deposed that on 15.05.09 he had joined the Delhi area office of LIC mutual funds as Chief Manager on deputation from LIC and his deputation ended in April 2011. In July -August 2010 police contacted him regarding the complaint of complainant and informed him about the complainant. He provided all the documents which the company maintained regarding investment and redemption in the present case from the register. He deposed that there were 19 investment documents and 19 redemption documents, however out of this 18 documents have been traced out and one document could not be traced. These documents were handed over to the IO vide seizure memo Ex. PW5/A. A letter was also written to IO SI P. K. Jha which is Ex. PW5/B. He deposed that the said documents were examined by him and were found forged as the lay out on the surface of the documents i.e statement of account of LIC mutual funds was not as per prescribed format of the company. It was also revealed that these statement were not reflecting the actual position of the accounts in folio of investor because as per the statement with their registrar, the folio was in the name of accused and not K. K. Suri. The 17 statement of accunts are Mark A1 to A11 collectively.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 9
12.This witness was cross examined by the Ld. APP on the point of date wherein he admitted that on 27.08.2010 the police had contacted him and prepared the seizure memo. In the cross examination by Ld. Defence Counsel PW-5 stated that all the incidents of forgery had happened before his joining. This matter came in his knowledge when the investor contacted him and the documents of the investments were inspected. He deposed that he informed about this forgery to his corporate office. He denied the suggestion that he is deposing falsely and making wrong statement without support of doucments.
13.PW-6 Anish Mahajan, Priority Manager, Axis Bank had brought the photocopy of the account opening form of accused of account no. 35701000059112. He deposed that as per the record the accused had opened the account on 30.09.2008 and as per the record it is the true account. The photocopy of the papers of opening of account are Mark X1 to X5 collectively. He deposed that his branch made available the statement of above said account at the request of the IO and photocopy of the same is Mark Y1 to Y5 in which transaction done by the account holder is from 01.04.2009 to 14.06.2010. He deposed that he could not identify the signature of the signatory as it is signed by Cluster Manager from State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 10 different field. However, without his verification the account could not have been opened. He identified the account holder as the accused by comparing his photograph attached on the application form. In the cross examination this witness admitted that he could not identify the signatory. He admitted that he had stated all the things on the basis of record. He denied that he is deposing falsely.
14.PW-7 Raman Sabharwal, Senior Manager, BNP Paribas Asset Management formerly known as Fortis Asset Management deposed that in May 2010 the complainant K. K. Suri had sent a memo seeking the details of redeemed payment in respect of investments made by him with them. They filed a complaint dated 13.08.2010 regarding criminal offence conducted by Subodh Kumar which was transfered to PS Sun Light Colony. The copy of which is Mark A colly. This complaint was clubbed with the complaint of K K Suri. The notice to appear in the PS was served upon him and the witness as a representative of the company appeared before the IO on 09.09.2010 and submitted all the attested documents in this case. The submitted documents are the application form as per cheque details furnished by K. K. Suri pertaining to investment in Fortis Overnite funds formerly known as ABN Amro cash funds in the name of State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 11 Subodh Kumar collectively Mark 7A1 to 7A5, the copy of redemption requests Mark 7B1 to 7B5 collectively, the copy of account statement 7C1 to 7C5 collectively, the details of the redemption proceedings Mark P and 5 KYC of Subodh Kumar is Mark 7D1. They also provided the original record of above said documents to the police. The original application form in the name of the accused is Ex. 7E1 to 7E5 collectively. Original redemption request is Ex. 7F1 to 7F5 collectively. It is also redeemed by the accused Subodh Kumar. He deposed on the basis of above submitted documents he could say that they alloted units of mutual funds in the name of the accused on the basis of the said documents. They also redeemed the same at the request of accused. He deposed that they came to know on the complaint filed by Sh.K. K. Suri that all the amount has been redeemed by the accused in which he had told that the said amount was given by him for investment and provided the cheque for enquiry. On enquiry, they found that the said investment was made in the name of Subhodh Kumar and same was redeemed by him and not by K. K Suri. They followed the process and cooperated with the police and provided the detailed information to the police. In the cross examination by the Ld. APP the witness could not identify the accused as at the time of the application State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 12 for investment, only a process without photo on the application form. This witness was not cross examined by the accused.
15.PW-8 Satish Raj Co-Ex. HDFC BANK deposed that on 15.06.2010 the IO had sent a letter for information regarding account number 104801000009400, 2. 04801530001609 and 3. 04801930004242. He deposed that they provided the bank statement of the above said account number in the name of the accused. The transaction in account no.1 was done very heavily i.e more than normal. The transaction in different funds were shown in the statement given to the police. Same is Mark 8A1 o 8A5. Statement of account no. 2 is Mark 8B1 to 8B7 collectively and statement of account no. 3 is Mark 8C. He deposed that account no.1 was opened on 05.12.2005, account no. 2 was opened on 12.02.2008 and account no.3 was opened on 13.12.2008. Account no. 1 and 2 were regular account and account no.3 was Max account. He deposed that now all these accounts have been blocked. He further deposed that on the basis of above said documents, he could say that very heavy transactions had been conducted by the accused Subodh Kumar. He identify the accused in the court.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 13
16.PW-9 Akhil Khanna is the Branch Manager, Muthoot Finance Ltd, deposed that as per the documents of the company, the accused Subodh Kumar had taken a loan no. PPL 0019661 of Rs.1,84,000/- on 21.12.2010 from the above said branch against security, gold ornaments. The company had provided loan and due to default they had auctioned the deposit security after giving sufficient opportunity and notice to deposit the loan amount to the accused. He deposed that he had joined the bank on 18.04.2011 and the loan was taken before his joining. The auction proceedings were done on 23.12.2011 after his joining. However he could prove the documents of the company if shown to him. The documents of the company were shown to him. He proved the original copy of Customer pledge form, copy of deposited secuirty and copy of application form filled for loan. Same are Ex. 9A, 9B and 9C.
17.PW-10 Ct. Yameen deposed that on 25.07.2010 he along with SI P. K. Jha had gone to house no. 28/886, Madangir, New Delhi. There the accused met them. SI P. K. Jha interrogated him and thereafter the accused was arrested in the presence of the witness vide arrest memo Ex. PW10/A bearing his signature at point A. The statement of the accused was recorded by the IO which is Ex. PW10/B. On search of the house, an State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 14 amount of Rs.7.65 Lacs were recovered. The total amount was contained in 8 bundles out of which 7 bundles consisted of 100 notes of Rs.1000/- and one bundle consisted of 69 notes of Rs.1000/-. These were put in the pulanda and sealed with the seal of PKJ. The said property was seized vide seizure memo Ex. PW10/C bearing his signature at point A. The witness correctly identified the photographs of the recovered notes.
18.PW-11 Ct. Dinesh Negi deposed that on 30.07.2010 he along with SI P. K. Jha reached at house of accused. The accused was already arrested and was in police custody. On reaching their, the accused searched some documents and handed over them to the IO who seized the same vide seizure memo Ex. PW11/A bearing his signature at point A. Thereafter they returned back to the PS. The IO recorded the disclosure statement of the accused which is Ex. PW11/B bearing his signature at point A. The witness correctly identified the accused. He identified the Ex.PA, Mark 11A, Mark 11B, 11C, 11D, 11E and 11P.
19.In the cross examination, this witness deposed that he does not know who is the owner or the resident of house no. N-28/886 DDA Flat, Madangir, New Delhi. He deposed that they had gone there at the instance of the accused. He stated that the IO did not request any public person to join the State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 15 investigation. There were lot of people gathered outside the house. He admitted that the papers seized from the house were photocopies, however, there were some original papers handed over to the IO. He deposed that there were two police officers including him and the IO. He denied the suggestion that no documents were recovered by the IO and that the recovery proceedings were conducted at the PS.
20.PW-12 HC Ashok Kumar proved the FIR Ex. PW12/A and endorsement on rukka Ex. PW12/B.
21.PW-13 Nitin Chaudhary, Assistant Manager, Axis Bank who had brought the certified copy of the account statement of Subodh Kumar having account no. 3610100024505 in which the total transaction amount of Rs. 1743906.59/- has been shown from 15.01.2007 to 30.10.2008. The copy of the statement of account from 23.05.2007 to 30.10.2008 in which the total amount of transaction was Rs. 5,30,653/- is Ex. PW13/A.
22.In the cross examination, he deposed that all the amount were credited from the mutual fund in the above said account statement of the accused. He admitted that there is no illegal transaction in the said account nor was there any discripency in the statement of account.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 16
23.PW-14 Krishan Kumar deposed that on 10.06.2010 he was posted at PS Sun Light Colony as ATO. On that day, the present case was handed over to him for investigation. After registration of the case, he called the complainant K. K. Suri in the PS on 17.06.2010. On the information provided by the complainant regarding accounts of the accused, he served notice to the banks namely HDFC, Sarita Vihar and Axis Bank, Noida, for providing the details of the accused. He also served notice to SBI for account statement of complainant K. K. Suri and his wife Vinod Suri. Later on the investigation was marked to SI P. K. Jha.
24.In the cross examination, he deposed that he had recorded the supplementary statement of complainant and his wife in the PS, however, he did not remember the date on which he had recorded the same. He deposed that both the statements were recorded on separate dates. The witness could not recall any transaction mentioned in the account statement of complainant and accused. He deposed that the complainant had a joint account with his wife Vinod Suri. He deposed that he cannot say whether the complainant's wife is having two pan card account by different names. He denied the suggestion that he is deposing falsely.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 17
25.PW-15 SI P. K. Jha deposed that on 24.07.2010 the present case was marked to him for further investigation. On 25.07.2010 he arrested the accused Subodh Kumar vide memo Ex. PW10/A and conducted his personal search which is Ex. PW15/B. The accused took him to his house from where Rs.7 Lacs were recovered at his instance. The said money was seized and pulanda was made which was sealed with the seal of PKJ. He further deposed that on 26.07.2010 the complainant handed over to him some documents which were given by the accused to the complainant during transactions. He deposed that he seized all the documents vide seizure memo Ex. PW1/B. On 30.07.2010 the accused got recovered some documents pertaining to Muthoot Finance for loan and GPA of property which was allegedly purchased by him from the money of the complainant, agreement to sale of said property, electricity bill and affidavit etc which were seized vide memo Ex. PW11/A. He deposed that he had written application to SBI to provide cheques and account statement of complainant and his wife. The said application is Ex. PW15/B. Further on 27.08.2010 he again gave notice under Section 91 Cr.P.C to the Bank Manager, SBI, South Extension as a reminder and the same is Ex. PW15/C and in reply the bank produced the list of cheques (25 original State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 18 and 11 photocopies), bank statement of complainant in 16 pages. The cheques are correctly identified as Ex. P1 colly and bank statement is Ex. P2 colly. He deposed that on 05.08.2010 he had given a notice under Section 91 Cr.P.C to Bank Manager, Muthoot Group to produce the details regarding loan no. 0019661 in the name of Subhodh Kumar. The details regarding no. CDG 62 dated 24.04.2010 are in the name of Sanjay and the details of gold ornaments which were kept as mortgage against the loan and other information related to Subhodh Kumar. He requested the Bank Manager that the above said loan along with gold ornaments may be freezed which is Ex. PW15/D. In reply, the concerned Branch Manager produced the photocopies of the documents i.e 1. pledge receipt no. 0019661 dated 21.02.2010 for Rs.184700/- of Mr. Subodh Kumar which is already Ex. PW9/B. 2. Photocopy of the application form for loan pertaining to Subodh Kumar which is already Ex. PW9/C and Sanjay which is Mark X.
3. Cheque no. 481859 for Muthoot Finance Pvt Ltd. which is Mark Y. 4. Photocopy of ID Proof of Subodh Kumar which is Mark Z. 5. Pledge receipt no. ODG62 dated 24.04.2010 for Rs.272000/- of Mr. Sanjay which is Mark 'M'. Photocopy of cheque no. 0000042 of Bank of India for Muthoot Finance India Pvt Ltd. which is Mark N. Photocopy of declaration of State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 19 ownership or ornaments placed under ODG62 dated 24.04.2010 for Sanjay which is Mark O.
26.He further deposed that he had given notice Ex. PW15/E to the Axis Bank for providing information of the account of accused. Axis Bank provided him account statement of Subodh Kumar in which cheque was issued on that account. Report of Bank is Ex. PW15/F. Thereafter, he had given notice to the LIC Mutual fund and TATA AIG, ABN Amro and TATA motors for providing information and also requested to provide consumer application form by which mutual funds have been purchased and redemption form by which money of mutual fund had been redeemed. On 15.07.2010 they were given information that accused had sold one flat 1/43, situated at Dakshin Puri, Delhi. He had collected the sale deed and GPA and Will of the said flat which is collectively Mark P. He had collected account opening form of Subodh Kumar of HDFC bank which is seized vide seizure memo Ex. PW15/G. Thereafter, he sent the consumer application form, redemption form, letter in which accused had confessed that he had committed wrong with the complainant, account opening form of HDFC of Subodh Kumar along with specimen signature for FSL test on the point of signature of Subodh Kumar. Thereafter, he prepared charge-
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 20
sheet and after getting result of FSL, he also prepared supplementary charge-sheet and submitted before the court.
27.During cross examination, he admitted that Subodh was working with H. L Kapoor Financial Consultants. The owner Rajeev Kapoor or employee of the said firm was not made either accused or witness in the said case. He could not say whether the recovered money from the house of the accused was the amount from selling of his own house. He denied the suggestion that K. K. Suri had voluntarily delivered cheque to purchase mutual funds in the name of the accused himself. He further denied the suggestion that the said complaint was lodged against the accused as some dispute had arisen between the complainant and accused. He denied the suggestion that he had not conducted proper investigation and had falsely implicated the accused person. He admitted that account statement of the accused was computer generated and does not have any stamp of the bank. He could not say whether any employee of bank had given proof of originality of the given account statement of the accused. He denied the suggestion that the accused had not made any disclosure statement in his presence or given any written letter in this respect to the complainant. He further denied the suggestion that he had cited witnesses in the present case according State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 21 to his own wish and evidence of the piece is also planted one on the accused. He further denied the suggestion that all the documents obtained from the bank are also fake. He stated that the complainant used to treat him as his own son and it was agreed between them that 8% interest would be transferred to his account.
28.Thereafter PE was closed. Statement of accused was recorded wherein accused pleaded innocence but did not lead any evidence in his defence.
29.After recording the statement of accused, the matter was kept for final arguments and thereafter on judgment. However, an application under Section 311 Cr.P.C was moved by the Ld. APP for State for recalling the PW-1, 4, 5 and 7. Same was heard and allowed and PW-1, 5 and 7 was re-examined.
30.In re-examination, PW-1 K. K. Suri admitted that Subodh Kumar came to their residence through M/s H. L. Kapoor and Co. and he collected crossed bank cheques in the name of three mutual fund companies namely TATA Assets, LIC and ABN Amro from him and his wife. He also took his and his wife signatures on papers of mutual funds which was sent by H. L. Kapoor & Co. He deposed that H. L. Kapoor & Co. was their financial advisor since 2002 and Director, Rajeev Kapoor advised him to invest in the State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 22 mutual funds and in pursuance of his advise, he agreed to do investments in the mutual funds. He also appointed his employee Subodh Kumar to collect the cheques regarding investment from him and his wife as they were above 70 years old and could not visit the office of their financial advisor regularly. Subodh Kumar regularly provided him and his wife the documents of the mutual funds i.e statement of accounts of above mentioned mutual fund companies. The documents given by accused was seized by the IO vide seizure memo Ex. PW1/B. Witness has identified the documents of mutuals funds vide seizure memo Ex. PW1/B. There are total 33 documents of above mentioned mutual fund companies. The said documents (account statement) containing five mutual funds of ABN Amro Asset Management in the name of witness and his wife Vinod Suri and his sister Rita Suri. Witness has proved the same as Ex. X1 to X5 (colly). Witness has further identified the 11 documents of account statement of TATA Mutual Funds in the name of K. K. Suri and Vinod Kumar Suri and his sister Rita Suri and proved the same as Ex. Y1 to Y11. Witness further proved the 17 account statement of LIC Mutual funds in the name of K. K. Suri, Vinod Suri and Rita Suri and same are Mark A1 to A17. He deposed that the 18 documents of account statement of LIC Mutual funds were State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 23 given to them by the accused. One document is on record. The accused Subodh Kumar informed him that said mutual funds could be matured in two years time. He deposed that in the month of April 2010 they needed money and planned to redeem from the mutual funds as given by the accused. Firstly he approached the office of LIC Mutual Funds to redeem his claim as invested by the cheque given to the accused and account statement provided by the accused. There he was informed by the company that all his account statement of LIC Mutual Funds are forged documents and company denied to make any payment against the said investment. He had invested 44.80 Lacs through the cheques. These cheques were handed over to accused for the investment company namely LIC Mutual Fund Company. After enquiry LIC Mutual Fund Company informed him that all his cheques had been redeemed in favour of Subodh Kumar. Company also provided account statement in the name of Subodh Kumar regarding investment made by him through his cheque. Witness has identified the 18 account statement Ex. B1 to B18 (colly) of LIC Mutual fund in the name of Subodh Kumar. Witness confirmed that these documents were provided him by the LIC Mutual Fund company in his enquiry. He deposed that in the enquiry they found that accused had State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 24 invested their money as given by the cheque in his own favour fraudulently. Thereafter, they contacted TATA Mutual Funds in which they had invested 28 Lacs vide eleven account statement of company through cheques which were given to the accused in the course of transaction. He provided 11 account statement of TATA Mutual Funds (Exhibited as Y1 to Y11) for redemption and the company replied that all his eleven investment documents are fake. After enquiry TATA Mutual Funds company informed him that his money had been invested in the name of Subodh Kumar and they had also provided him 10 account statements of Subodh Kumar invested in the company and they also informed him that the said invested amount has already been redeemed by Subodh Kumar. Thereafter, he contacted with ABN Amro Mutual Fund office and provided five account statement Ex. X1 to X5 as given by accused against the investment of Rs. 10 Lacs and asked to redeem them but company refused to redeem them as they were forged documents and they also informed him that amount of Rs.10 Lacs were invested in the name of Subodh Kumar by using his cheques which were given to him by him and his wife as well as his sister. ABN Amro Company provided him account statement of Subodh Kumar wherein it is mentioned the particulars of his cheque and same had already State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 25 been redeemed by accused. Witness identified the four account statement of AMN Amro Asset Management as Ex. C-1 to C-4. Thereafter, he came to know that Subodh Kumar had used their given cheques in favour of above said mutual funds fraudulently as he had used their given cheque in investment in his own name thats why original documents of the mutual funds are in the name of accused Subodh Kumar and its amount is already redeemed by him and he used to give them forged documents of above said mutual funds to them. Till date, he could not receive any money against him invested in different mutual funds plan by the company as their documents have been found to be forged. He contacted Subodh Kumar on 15.04.2010 to enquire the matter in which he had admitted that he had committed cheating with him and had handed over fabricated documents to him against cheques given to him and he gave a written statement. Copy of the same is Mark A.
31.PW-5 Indraneel Roy who was also recalled admitted that in the month of May 2010, K. K. Suri met with him along with his statement of account of LIC Mutual Fund. He had made enquiry about the status of his mutual fund investment. On enquires, he found that the statement of account in the name of Kulbhushan Kumar Suri, Vinod Suri was not genuine and State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 26 particulars of it were nowhere found in the official record of LIC Mutual Fund in Delhi Area office. The complainant gave the witness 17 documents of statement of account in the name of K. K. Suri and Vinod Kumar Suri. These were found forged documents as per their record and stated that these have not been issued from their Delhi area office. Account statement given by K. K. Suri and Vinod Kumar Suri are Mark A1 to A17 colly. K. K. Suri also provided particulars of his cheque issued in LIC Mutual fund. Witness has correctly identified the 17 cheques in the name of LIC Mutual Funds (Banker : State Bank of Sahrashtra, Siddharth Extension, New Delhi ) issued by K. K Suri and Vinod Suri and same were proved as Ex. C1 to Ex.C-17.
32.Witness further deposed that they started an enquiry with their RTA Karvy Computershare. After enquiry it was revealed that the cheque issued in the name of LIC Mutual Funds by K. K. Suri and Vinod Suri had been invested in the name of Subodh Kumar. They also found common application form of Subodh Kumar in which it was found that particulars of investment details bore the cheque number and bank details of State Bank of Saharashatra, Siddharth Extension which had been found in the name of K. K. Suri and Vinod Kumar Suri. Witness has identified the 14 documents State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 27 of common application form of LIC Mutual Funds in the name of Subodh Kumar attached with the judicial file where particulars of the cheque are mentioned under headline "payment mode". These documents are Ex. PW5/R1 to PW5/R14 and particulars of cheque details are Mark as RX1 to RX14. During enquiry they also found from the statement of account of Subodh Kumar that all the investments had been redeemed by Sudobh Kumar. Witness has identified the statement of account of LIC Mutual Fund in the name of Subodh Kumar and proved the same as Ex. B1 to B18 (colly).
33.He further deposed that the particulars of the cheque provided by K. K. Suri and Vinod Suri were found correctly matched with the particulars mentioned in the common application form. These investments had been made by Subhodh Kumar as third party investment. These investments were made in between the period from October 2006 to December 2008. After enquiry they informed K. K. Suri that they could not make any payment to him on the basis of documents available with K. K. Suri and Vinod Suri as the said statement are fraudulent and forged documents and manipulated from outside Delhi Area office. He also found that statement of account of LIC Mutual fund in the name of K. K. Suri and Vinod Suri were State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 28 not in the prescribed format and its layout are different from their stipulated formats. As per their record, investment of Rupees 38.8 Lacs was done in the name of Subodh Kumar which were redeemed by him shortly after each investment. The said amount were as per the cheques pertaining to the accounts of K. K. Suri and Vinod Suri with State Bank of Saurashtra, Siddharth Ext. which were fraudulently invested by Subodh Kumar in his own name. All the above said third party investment and redemption had been made at Karvy Computershare and not in Delhi area office, LIC Mutual Fund. Later on IO of the case met him and he had provided all the documents and information gathered from the record to him. He had informed the police that all investment paper in the name of K. K. Suri and Vinod Suri of LIC Mutual Fund are forged and the amount of cheque of State Bank of Saurashtra of K. K. Suri and Vinod Suri had been invested in the name of Subodh Kumar fraudulently.
34.PW-7 Raman Sabharwal admitted that in the month of May 2010, K. K. Suri came at their office at First Floor, Hansalia Building, Barakhamba Road, Connaught Place, New Delhi. He made enquiry about the account statement of ABN Amro Asset Management issued in the name of Kulbhushan Kumar Suri, Reeta Suri, Vinod Suri. When they checked the State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 29 record, it was revealed that no particular investment was done in the name of Kulbhushan Kumar Suri, Reeta Suri and Vinod Suri. Witness has identified the five documents of account statement of ABN Amro Asset Management in the name of Kulbhushan Kumar Suri, Vinod Suri and Reeta Suri and the same are Ex. X1 to X5 (colly).
35.He further deposed that K. K. Suri also provided cheque details by which investment was done and on the basis of cheque details, it was found that these investment had been done in the name of Subodh Kumar. Witness has identified the five bank cheques of State Bank of Saurashtra, Siddharth Extension, New Delhi issued by Vinod Suri and K. K. Suri and each cheque separately Ex. C-18 to Ex. C-22 and cheque had been attached with the common application form of ABN Amro Asset Management in the name of Subodh Kumar. Witness has identified the five common application form of ABN Amro Asset Management of Subodh Kumar and witness pointed out that particulars of cheque are mentioned at point RY on each application form. Common application form is Ex. 7R1 to 7R5 (colly). During enquiry, they found that the invested amount had been redeemed by Subodh Kumar very shortly after the investment. Witness has identified the four account statement of ABN Amro Asset Management in State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 30 the name of Subodh Kumar by which redeemed money had been mentioned and the said documents are proved as Ex. C-1 to Ex. C-4. In enquiry they found that all the investment had been done by mode of third party investment. Cheque was in the name of K. K. Suri, Vinod Suri and amount of it had been invested in the name of Subodh Kumar and same had been redeemed in favour of Subodh Kumar. After enquiry they informed to K. K. Suri that they could not make payment on documents available with him as they were fraudulent and forged documents and had not been issued by their company. The amount mentioned in the particular cheque given by K. K. Suri and Vinod Suri had already been redeemed by Subodh Kumar. He further depoed that during enquiry they also found that Subodh Kumar had used cheque of K. K. Suri and Vinod Suri in his own favour for investment in ABN Amro Asset Management in the year 2008. At that time, third party cheque was allowed for investment, police contacted them and handed over the above said documents of Subodh Kumar to him. They also informed him about the fact of enqjury done by them that Subodh Kumar had used third party cheque from K. K. Suri and Vinod Suri for investment in his name and the documents in the name of K. K. Suri and Vinod Suri were forged documents. They had also State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 31 made complaint to EOW Cell regarding above said fraud committed by Subodh Kumar.
36.None of the said witnesses was cross examined by the accused. No final arguments have been addressed on behalf of the accused. Thereafter PE was closed. Statement of accused was recorded wherein accused pleaded innocence but did not lead any evidence in his defence.The accused has only made a brief submissions that the complainant used to treat him as his son and the amount deposited in his account were with the consent of the complainant.
37.Ld. APP for state has submitted that the prosecution has proved its case beyond reasonable doubts. The accused has committed cheating and fraud against the complainant and his wife, and has also committed forgery of documents.
38.Let us first discuss the necessary ingredients of the offence are:-
39.Section 415 of IPC defines cheating as under :-
"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 State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 32 anything which he would not do or omit if her 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".
40.Thus the main ingredients to be proved to establish cheating are:-
1. Fraudulent and dishonest intention to deceive.
2. Inducement to the complainant to deliver any property or consent to deliver any property or to do or omit to do something which he would not otherwise do.
3. Such act/omission causes or is likely to cause damage or harm to the complainant in body/mind/reputation or property.
Explanation to Section 415 says that a dishonest concealment of facts in deception within the meaning of this section.
41.Section 406 IPC prescribes punishment for criminal breach of trust and the same is defined under Section 405 IPC. The most important ingredient of Section 405 IPC is "entrustment of property". The expression 'entrustment' means that "the person entrusting, by some real and conscious volition has imposed on the person to whom he delivers the State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 33 goods, some species of fiduciary duty" (Lake vs Simmons 1972 AC 487). In order that money be 'entrusted' to the accused person, it should be transferred to him in circumstances which show that notwithstanding its delivery , the property continues to vest in the prosecutor and the money remains in possession of the accused in capacity of a bailer only.
42.Section 468 IPC defines forgery for purpose of cheating:- whoever commits forgery intending that the document or electronic record forged shall be used for the purpose 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.
43.Section 471 IPC defines 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.
44.In the case at hand, the complainant K. K. Suri (PW-1) used to handover cheques to the accused for investment in LIC mutual funds, TATA AIG mutual funds and ABN AMRO mutual funds, being the employee of M/s H. L. Kapoor & Co. However, the accused would destroy the forms sent by State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 34 M/s H. L. Kapoor & Co. and would attach his own forms with the bank cheques of the complainant and used to invest them into his own bank account. The accused used to give the complainant and his wife forged statement of account of the above said companies. It was in 2010 when the complainant approached the office of LIC Mutual Funds to redeem the claim invested by the accused through cheques issued by him that he came to know that all the statement of account as provided to him by the accused were forged documents and no investment was made in the name of the complainant. After enquiry, it was revealed that all the cheques issued by the complainant have been redeemed in favour of the accused. The 18 statement of account of LIC mutual funds in name of accused have been placed on record as Ex. B1 to B18. These documents have been further identified by PW-5 who is the Senior Divisional Manager of the LIC. PW-5 has proved the investments made by the accused Subodh Kumar in his account by way of cheques issued by the complainant. This witness had deposed that on the complaint of Sh. K. K. Suri, they made an enquiry and it was revealed that the cheques issued in the name of LIC mutual funds by the complainant K. K. Suri and Vinod Suri have been invested in the name of the accused.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 35
45.PW-1 has deposed that he had invested Rs. 28 Lacs in TATA mutual funds vide 11 account statement through cheques given to the accused. When he provided the 11 account statements of TATA mutual funds (Ex. Y1 to Y11) given to them by the accused for redemption, company replied that the said documents were fake. After enquiry, he was informed that the investment have already been redeemed by the accused. PW-4 from TATA Asset Management had deposed that the accused had forged the cheques of Sh. K. K. Suri and Rita Suri and as per the common application form, the investment were done in the name of Subodh Kumar.
46.It has also come in the testimony of PW-1 that when he contacted ABN Amro Mutual Funds office and provided the five accounts statements as given to him by the accused, against the investment of Rs.10 Lacs (Ex. X1 to X5) and asked to redeem them, they refused to do so saying that these are forged documents. They also informed him that Rs.10 Lacs had been invested in name of the accused by using the cheques of the witness which were given to the accused by him, his wife and his sister. The account statement of accused provided by the company are Ex. C-1 to C-4. PW-7 has corroborated the said testimony of PW-1 and had deposed that in May 2010 Sh. K. K. Suri had come to their office at Connaught State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 36 Place and made enquiry about account statement of ABN Amro Asset Management issued in the name of K. K. Suri, Rita Suri and vinod Suri. On checking the record, it was found that no particular investment was made in those names. When the complainant provided the cheque details of the said investment, it was found that these investments had been done in the name of Subodh Kumar. The five cheques by which the said investment was made are Ex. C-18 to C22. He further deposed that these cheques attached with the Common Application Form of ABN Amro Asset Management in the name of the accused. The Five common application forms are Ex. 7R1 to 7R5. He further deposed that the said invested amount was redeemed by the accused very shortly after the investment. The documents by which the said amount was redeemed are Ex. C-1 to C-4. PW-7 further deposed that these investments were made by the mode of 'third party investment'.
47.PW-2 Smt. Vinod Suri who is wife of the complainant has also corroborated the testimony of PW-1. PW-2 has not been cross examined by the accused and hence her testimony had remained unrebutted and unchallenged. PW-6 has proved that an account was opened by the accused in 2008 in which transactions were done by the accused from 01.04.2009 to State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 37 14.06.2010. PW-8 from HDFC bank provided the bank statement of the account in the name of the accused wherein heavy transactions were made by the accused from different funds. PW-9 Branch Manager, Muthoot Finance Ltd, deposed that the accused had taken loan of Rs.1,84,700/- on 21.02.2010 from their branch against security, gold ornaments, auction proceedings were done on 23.12.2011 due to default. PW-10 deposed that an amount of Rs. 7.69 Lacs was recovered from the accused from his house during investigation. PW-13 Assistant Manager, Axis Bank, deposed that an account was opened by the accused in their bank and between 15.01.2007 to 30.10.2008 a total transaction amount was 17,43,906/-. As per the statement of accounts total amount of transaction 5,30,653/- between 23.05.2007 to 30.10.2008 (Ex. PW13/A).
48. Hence, it stands proved from the testimony of the above witnesses and exhibits discussed above that the complainant had been handing over cheques to the accused for the purpose of investment in various mutual funds like LIC, ABN Amro, TATA Asset etc. in his name and in the name of his wife and sister. However, the said cheques were misused by the accused and he invested the same in his account. There was fiduciary relationship between the complainant and the accused and this has been State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 38 admitted by the accused also. It is admitted that the complainant had been handing over cheques to the accused for the purpose of investment. The Ld. Counsel for accused had given a suggestion to the PW-1 that the investments made in the account of the accused were made by his consent and knowledge. Hence the factum of investments in the account of the accused stands admitted. It is proved that the accused has caused wrongful loss to the complainant and wrongful gain to himself.
49.It is the defence of the accused that the complainant used to treat him as his own son and it was decided between them that 12% interest would be given to him. He had also stated that the complainant had transferred an amount of Rs. 8 Lacs to his account directly. However, he has failed to prove the same that no agreement wherein it was agreed between the accused and the complainant that the complainant would give him 12% interest has been placed on record. There is no evidence by the accused that Rs.8 Lacs were transferred to his account by the complainant directly. Hence, he has failed to prove his defence.
50.The accused has cheated the complainant by inducing him to make investments in different companies through him. The complainant made investments of his hard earned money but due to the acts of the accused, State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 39 he could not get any benefit out of the said investments as the said amount was already redeemed by the accused.
51.It has been proved by the testimony of the PWs that the accused instead of making the investment in the name of the complainant used the cheques for investments in his own account. He used to supply fake accounts statements to the complainant to show that investments have been made in the name of the complainant. PW-5 has deposed that the account statement provided by the accused to the complainant were examined by him and found forged as the layout on the surface of the documents of LIC Mutual Funds (statement of account) is not as per the prescribed format of the company. Also, these statements did not reflect the actual position of the accounts in the folio of the investor, because the said folios were in the name of Subodh Kumar and not in the name of K. K. Suri. The said documents are Mark A1 to A17.
52.PW-7 has also deposed that the payment of the complainant on the basis of the statements of accounts provided to him by the accused which are Ex. X1 to X5 could not be made as the said documents were forged and fraudulent and were not issued by their company.
State v. Subodh Kumar U/s 406/420/468/471 IPC FIR No. 199/10 , PS S L Colony 40
53.In view of the above discussion, the court is of the view that the prosecution has proved the guilt of the accused under Section 420, 406, 468 & 471 IPC.
54.Accordingly, accused stands convicted under Section 420, 406, 468 & 471 IPC.
55.List for arguments on sentence on 19.08.2013.
Announced in the open court (SAUMYA CHAUHAN)
on 8th Day of August 2013 METROPOLITAN MAGISTRATE
SOUTH EAST/SAKET COURT/NEW DELHI
State v. Subodh Kumar U/s 406/420/468/471 IPC
FIR No. 199/10 , PS S L Colony