Delhi District Court
Sh. Mahender Singh vs The State (Nct Of Delhi) on 26 June, 2020
IN THE COURT OF MS NEENA BANSAL KRISHNA
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
CA No.204480/2016
SH. MAHENDER SINGH
S/O LATE SH. BABU RAM
R/O A26/S2,
DDA STAFF QUARTERS
DILSHAD GARDEN, DELHI110095
......APPELLANT
Versus
THE STATE (NCT OF DELHI) ......RESPONDENT
Date of filing : 23.10.2015
First date before this court : 21.03.2016
Date of Decision : 26.06.2020
JUDGMENT
1. By this judgment, I shall be disposing of the above mentioned criminal appeal arising from the judgment dated 14.08.2015 vide which the appellant Mahender Singh has been convicted for offence punishable under Section 120B r/w Section 420, 467, 468 & 471 IPC for having forged the documents and using the forged documents for inducting coaccused Munesh Kumar into the temporary service of DDA and thereby causing loss to DDA by way of salary paid to Munesh Kumar. Appellant Mahender Singh was also convicted separately under Section 467 & 468 IPC. He has CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 1 of 14 pages been sentenced separately vide order dated 30.09.2015.
2. The facts in brief are that source information was received in the Crime Branch on 20.08.1992 that during the period 1986 to 1990 Jai Prakash, Srichand, Rajender Singh, Munesh Kumar and Sushil Kumar had joined the services in DDA on 'work charge' basis on the basis of forged / bogus Transfer Orders. These persons had never been employed by DDA but by virtue of the forged Transfer Orders, they joined the duty. It was further alleged that the accused persons in connivance with some unknown officials of DDA had forged their documents of appointment and transfer posting orders on the basis of which they joined Transferee Department and have cheated the Department of DDA to the tune of Rs.1,06,417.10 by way of salary etc. received by them.
3. The investigations revealed that accused Mahender Singh while working as 'work charge beldar' (sic) (Head Clerk) entered into criminal conspiracy with coaccused Munesh Kumar and forged the documents to make him join in the Department of DDA as 'work charge employee' even though Munesh Kumar has neither been appointed in any Sub Division of DDA nor any transfer order was ever issued in regard to him by the DDA. The investigations revealed that accused Mahinder Singh had forged the Service Book and Transfer File of coaccused Munesh Kumar and had induced DDA to believe the Transfer Order to be genuine and CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 2 of 14 pages allowed Munesh Kumar to work in the Department of DDA and also to draw salary and other allowances till the discovery of the forgery and the conspiracy.
4. In the chargesheet, it had been explained that the procedure for joining of work charge employee was that when the employee was transferred from one Division say D1 to another Division say D2, the Transfer Orders were issued by Deputy / Asstt. Director from the office of concerned Zonal Chief Engineer. A copy of the said order is sent to D1 and D2 through the peon book of Zonal Chief Engineer. On the basis of these transfer order, relieving order is sent to the Executive Engineer of Transferring Division (D1) and a copy is sent to Executive Engineer of Transferee Division (D2) as well as to Zonal Chief Engineer. After that the transferred employee submits his joining report in D2 and order of his joining is issued by Executive Engineer of D2. A copy of this is again sent to Zonal Chief Engineer and Executive Engineer (D1), so that the D1 Department knows about the joining of the transferred employee and also facilitates the accounting aspect. The Service Book, Personal File and the LPC of the transferred employee are also sent from D1 to D2 along with forwarding letter. It is submitted in the chargesheet that the said procedure was not followed and accused Mahender Singh, who was working as Head Clerk ensured that the copy of joining report and the Transfer Order did not reach the Transferor Department D1 and the office of CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 3 of 14 pages Zonal Chief Engineer. The appellant Mahender Singh along with co accused Munesh Kumar thus, forged the documents in regard to the employment of Munesh Kumar in the Department of DDA.
5. During the investigations, the handwriting samples of appellant Mahender Singh and of the Executive Engineer were taken and the admitted and the disputed signatures along with original documents were forwarded to GEQD for examination. Shri R. K. Jain, Handwriting Expert submitted his detailed report confirming that the forged service book of Munesh Kumar had been written by the appellant Mahender Singh. The chargesheet was accordingly filed in the court.
6. Charges under Section 120B r/w Section 420/467/468/471 IPC were framed against appellant Mahender Singh and coaccused Munesh Kumar. Separate charge under Section 420 and 471 IPC was framed against coaccused Munesh Kumar and separate charge under Section 467 and 468 IPC was farmed against the appellant Mahender Singh.
7. The prosecution in support of its case, examined six witnesses. PW1 Shri Bindwashini Ram, Asstt. Head Clerk was partly examined but he was not produced subsequently by the prosecution to conclude his evidence. PW2 Shri Krishna Nand CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 4 of 14 pages Uniyal deposed that in the year 1984, he was working as Mate in SWD 9. PW3 Shri I. M. Mathur, Executive Engineer deposed that in the year 198788, he was posted as Executive Engineer in South West Division No. IV, DDA. He deposed that the service book of Munesh Kumar Ex.PW3/1 does not bear his signatures at various points. Likewise, his personal files Ex.PW3/2 and Ex.PW3/3 do not bear his signatures and the same have been forged by some unknown person. PW4 Shri R. K. Jain is the handwriting expert who had examined the disputed and the admitted signatures of appellant Mahender Singh and had submitted his detailed report Ex.PW4/C. It was opined that disputed signatures may have been written by Mahender Singh. The disputed signatures of the appellant on the various documents contained in the service book and the personal files were identified by the witness as Ex.PW4/A and Ex.PW1/B respectively.
8. PW5 Shri Ajay Rawat (SI/CBI) was the first investigating officer who during the investigations had recorded the statements of various officers from the Department of DDA and had obtained specimen signatures of the officers of the DDA and of appellant Mahender Singh. He also seized the various documents from the Department of DDA. The investigations were thereafter, taken over by PW6 Insp. Akhil Kaushik, CBI who completed the remaining investigations and filed the chargesheet in the court.
CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 5 of 14 pages
9. No other prosecution witness was examined by the prosecution.
10. The statement of the accused persons were recorded separately under Section 313 Cr.P.C. wherein they pleaded their innocence.
11. The learned Trial Court relied upon the report of the handwriting expert to conclude that it was proved that the Service Book and the Transfer Orders had been forged by the appellant Mahender Singh and it was proved beyond reasonable doubt that there was a conspiracy between the appellant Mahender Singh and coaccused Munesh Kumar in creating forged documents by virtue of which Munesh Kumar got the appointment in DDA and he caused a loss of Rs.1,06,417.10 by way of salary and the allowances while working in the Department w.e.f. 19.08.1988. The appellant Mahender Singh and coaccused Munesh Kumar were thus, convicted for offence punishable under Section 120B r/w Section 420, 467, 468 & 471 IPC. Appellant Mahender Singh was also convicted separately under Section 467 & 468 IPC and the co accused Munesh Kumar was also separately convicted under Section 471 and 420 IPC vide judgment dated 14.08.2015 and have been accordingly sentenced separately vide order dated 30.09.2015.
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12. Aggrieved by the said conviction dated 14.08.2015 and order on sentence dated 30.09.2015, the present appeal has been filed by appellant Mahender Singh.
13. Learned counsel on behalf of appellant has argued that not a single witness has been examined from the Department to prove that there was no appointment of coaccused Munesh Kumar in DDA. The complicity of appellant Mahender Singh in forging the documents and using them as genuine or of there being any conspiracy between the appellant Mahender Singh and coaccused Munesh Kumar, has not been proved by any evidence whatsoever. The testimony of the Handwriting Expert is merely corroborative and is a weak piece of evidence and cannot be made the sole basis for conviction. It is thus, argued that the evidence led by the prosecution does not prove any of the offences against the appellant and the judgment and order on sentence is liable to be set aside.
14. Learned Public Prosecutor for CBI has vehemently argued that during the period 19861990 various bogus employees were inducted in DDA and they unlawfully and illegally cheated the Department by drawing monthly salary and perks. This was revealed through source information and the investigations were undertaken. The Service Book and the original documents have been placed on record and the testimony of PW1 Shri R. K. Jain, handwriting expert proves beyond reasonable doubt that the entire forgery had been CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 7 of 14 pages committed by appellant Mahender Singh and the benefit was drawn by coaccused Munesh Kumar. It is thus, submitted that the case of the prosecution stands proved beyond reasonable doubt and the appellant has been rightly convicted.
15. Written arguments have also been submitted on behalf of the appellant.
16. I have heard the arguments and have perused the record and the evidence led therein and the written arguments filed by the appellant. My observations are as under :
17. It is a settled proposition of law that the burden of proving the case beyond reasonable doubt in the criminal case rests absolutely on the prosecution and never shifts. It is only after the prosecution discharges its burden that the accused may lead evidence to create a doubt in the prosecution story. Each and every ingredient of an offence has to be established by the prosecution to be able to bring home the offence. Even if some evidence is brought on record, the same cannot bring home the conviction if there are gaping holes in the whole fabric of the prosecution story.
18. In the present case, as per the prosecution, during the period 19861990 on the basis of forged documents various bogus employees were inducted. It was for the prosecution to prove that CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 8 of 14 pages Munesh Kumar was never appointed as "work charge beldar" in the Department w.e.f. 19.08.1988 vide the appointment letter dated 20.08.1988 and that he was subsequently transferred from one Department to the other on the basis of forged orders.
19. The prosecution in support of its case examined PW1 Shri Bindwashini Ram, Asstt. Head Clerk who was partly examined but he was not produced subsequently by the prosecution to concluded his evidence. The other witness examined by the prosecution is PW2 Shri Krishna Nand Uniyal who deposed that in the year 1984, he was working as Mate in SWD9. His evidence does not prove the case of prosecution in any manner.
20. First and foremost, the Service Book Ex.PW3/1 and Personal Files Ex.PW3/2 and Ex.PW3/3 which are maintained by the Department have been proved in the testimony of PW3 Shri I. M. Mathur, Executive Engineer who was posted in SWD No. IV, DDA for the period 198788. The pesonal files and the service book had not been prepared by PW3 nor was he the custodian of these documents. The onus was on the prosecution to have proved these documents through the competent witness who was responsible for preparing and maintaining these documents. The prosecution has thus failed to prove the service book as well as the personal files and therefore, the documents contained therein and the entries made CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 9 of 14 pages have not been proved by any competent witness.
21. Even then, perusal of the Service Book Ex.PW3/1 shows that the order was issued in File No. 1(106)/76 appointing Munesh Kumar as Khallassi on work charge establishment in place of his father Shri Atter Singh. The Service Book merely has the order pasted in the service book. However, no witness whatsoever was examined to depose that no such appointment letter as mentioned therein had ever been issued. Likewise, the service book has an entry that the transfer order was issued vide EO No. 122 dated 31.08.1989 in regard to transfer of Munesh Kumar to Department SWD 2, DDA. However, again except the letters which have been placed in the service book, there is no witness examined to prove that these letters were in fact not issued by the competent authority. The only witness examined is PW3 Shri I. M. Mathur, Executive Engineer. He has deposed that in the year 198788, he was posted as Executive Engineer in South West Division No. IV, DDA. He deposed that the service book of Munesh Kumar Ex.PW3/1 does not bear his signatures at various points. Likewise, his personal files Ex.PW3/2 and Ex.PW3/3 do not bear his signatures and the same have been forged by some unknown person.
22. The only fact which gets established from the testimony of PW3 Shri I. M. Mathur is that the entries made in the service book or the transfer orders that have been placed in the CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 10 of 14 pages personal files do not bear his signatures. This may be incriminating but does not prove beyond reasonable doubt that Munesh Kumar was never appointed by the competent authority or that there was no transfer order ever issued in his regard. The prosecution has also not led an iota of evidence in regard to the posting of appellant Mahender Singh in DDA or to explain his complicity in this entire scam of inducting bogus employees on the basis of forged transfer orders.
23. The only evidence that has been adduced on behalf of prosecution is PW4 Shri R. K. Jain, the Handwriting Expert. The only evidence which has been given by him is that the handwritings in service book Ex.PW4/A and the Transfer File collectively Ex.PW4/B have been written by Mahender Singh. First and foremost, the service book as well as Transfer File has not been proved by any officer from the Department. The Handwriting Expert cannot be proving these appointment / transfer orders. He can merely give an opinion if the documents have been written or signed by the appellant or by the officers who were supposed to be preparing those documents. Further, PW4 Shri R. K. Jain has merely deposed that the documents appear to have been prepared in the handwriting of appellant Mahender Singh. The sample handwriting of coaccused Munesh Kumar was admittedly not forwarded to the Handwriting Expert as admitted by him in his crossexamination CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 11 of 14 pages conducted on 14.05.1999.
24. What is the evidentiary value of a handwriting expert was explained by the Apex Court in State of U.P. Vs. Charles Gurmukh Sobhraj 1996 Cri. L. J. 3844 wherein it was held that where the expert bases his conclusion about identity of the person who had written the questioned documents by comparing the same with the sample writing merely on the ground that there were some similarity in some of the letters and figures occurring in the sample handwritings here and there and similar letters and figures appearing in the questioned documents, it would not be safe to act upon such opinion unless it stands corroborated by some other reliable evidence.
25. In Magan Bihari Lal Vs. The State of Punjab AIR 1977 Supreme Court 1991 it was again observed that it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a Handwriting Expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. Similar were the observations made by the Apex Court in Ram Chandra Vs. State of U.P. AIR 1957 SC
381. CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 12 of 14 pages
26. In Shashi Kumar Vs. Subodh Kumar AIR 1964 SC 529, it was held that the evidence of a Handwriting Expert being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it is desirable to consider whether it has been corroborated either by clear direct evidence or by circumstantial evidence. The evidence of an expert being opinion evidence is by its very nature, weak and infirm and cannot of itself form the basis of conviction.
27. The prosecution has thus miserably failed to produce any substantive evidence to prove the service book Ex.PW4/A or the file pertaining to the transfer of coaccused Munesh Kumar Ex.PW4/B. The testimony of the two IOs PW5 Shri Ajay Rawat and PW6 Shri Akhil Kaushik merely explains the collection of documents and handwriting sample of various officers and the appellant but that is not any kind of substantive evidence to prove the ingredients of the offence. There is no evidence whatsoever produced to show that coaccused Munesh Kumar by virtue of the transfer order joined DDA as its work charge beldar in the year 1989 or was drawing a monthly salary. So much so, the prosecution as above failed to prove the FIR dated 20.08.1992 that was recorded by Superintendent of Police, CBI Ashok Kumar. The FIR has also been proved through IO PW5 Shri Ajay Rawat as Ex.PW5/A1.
28. The prosecution has miserably failed to prove by any CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 13 of 14 pages cogent evidence the conspiracy between the appellant Mahender Singh and coaccused Munesh Kumar or of forging of service book and transfer orders by appellant Mahender Singh in conspiracy with Munesh Kumar or that Munesh Kumar used these forged documents for joining the department of DDA or of cheating the Department by drawing salary. None of the offences have been proved by the prosecution and the judgment of conviction dated 14.08.2015 and order on sentence dated 30.09.2015 are liable to be set aside.
29. The appeal is therefore, allowed and the appellant Mahender Singh is acquitted. Bail bond and surety bond stand discharged. He is directed to furnish bail bond under Section 437A Cr.P.C. before the learned Trial Court.
30. A copy of this judgment along with trial court record be sent back to the learned trial court and appeal file be consigned to record room.
Announced in the open court on this 26th day of June 2020 (NEENA BANSAL KRISHNA) District & Sessions Judge South East, Saket Courts New Delhi CA No. 204480/2016 Mahender Singh Vs. The State (NCT of Delhi) Page 14 of 14 pages