Delhi District Court
P. Damodaran vs Cbi on 14 August, 2023
P. Damodaran Vs. CBI
CA No. 28/2019
IN THE COURT OF SHRI ATUL KRISHNA AGRAWAL:
ADDL. SESSIONS JUDGE-02 (SFTC) (CENTRAL):
TIS HAZARI COURTS: DELHI
Crl. Appeal No. 28/2019
Unique Case ID: DLCT01-000836-2019
In the matter of :-
P. Damodaran
S/o Late Sh. N Parthasarthy,
R/o 4-A, Kalyana Sundaram Compound,
Methu Street, Betanayampuram,
Madurai, Tamil Nadu
Earlier at : Door No. 30A, Amman Koil,
Street, Samayandullur,
Madurai District, Tamil Nadu
..........Appellant
Vs
CBI
........Respondent
Date of filing of appeal : 17.01.2019
Date on which judgment reserved : 12.07.2023
Date on which judgment pronounced : 14.08.2023
JUDGMENT
1. The appellant/accused P. Damodaran has preferred the present Appeal under section 374 Cr.PC for setting aside the order of conviction dated 30.08.2018 and order on sentence dated 19.12.2018 passed by the then Ld. CMM Late Sh. Ashu Garg (the Ld. trial court) in CBI case titled as 'State vs P. Damodaran' CC No. 175/2 RC-1(S)/97 (New Case No. 37/2016) whereby the appellant/accused was held guilty and convicted for the offences punishable DOD 14.08.2023 Page No. 1/22 P. Damodaran Vs. CBI CA No. 28/2019 under sections 471 IPC and 420/511 IPC. Thereafter he was sentenced to undergo Simple Imprisonment (SI) for one year alongwith fine of Rs.20,000/- and in default of payment of fine, further SI for one month for the offence u/s 471 IPC. He was further sentenced to undergo simple imprisonment (SI) for one year alongwith fine of Rs.20,000/- and in default of payment of fine, further SI for one month, for the offence punishable u/s 420/511 IPC.
2. Thereafter the appellant preferred the present appeal which was assigned to the Ld. Predecessor of this Court by Ld. Principal District & Sessions Judge (HQs) vide his order dated 17.01.2019. Subsequently vide order dated 19.01.2019, the Ld. Predecessor of this Court admitted the appeal and granted bail to the appellant till pendency of the appeal and also suspended the order on sentence dated 19.12.2018. The appellant also deposited the fine amount before concerned court.
3. The facts leading to this Appeal are that a case was got registered by CBI on 19.02.1997 against the appellant/accused u/s 120B IPC R/w Section 465/468/471 IPC and 420/511 IPC in view of complaint dated 27.01.1997 made by Sh. S.S.K. Rao, Asstt. Director General (Vigilance), Dept. of Post, Vigilance Section, New Delhi. The background allegations in brief are that appellant/accused, who was working in department of Post, as Postal Assistant, at Madurai, was facing two departmental disciplinary proceedings. A copy of letter dated 28.11.1996 was received in Department of Communication, purportedly issued by Dr. Shanker Dayal Sharma, the then Hon'ble President of India, which was addressed to Sh. Beni Prasad Verma, the then Minister of Communication, Central Government, directing the setting aside of the aforesaid two disciplinary proceedings initiated against the appellant/accused DOD 14.08.2023 Page No. 2/22 P. Damodaran Vs. CBI CA No. 28/2019 and to accept his community status as being that of scheduled tribe. The concerned Minister was also directed to immediately pass orders in that regard. A fax of the same forged letter was also received later on and it was also bearing an endorsement in the writing of accused. The letter in question dated 28.11.1996, was allegedly bearing the facsimile signature of the then Hon'ble President of India Sh. Shankar Dayal Sharma and was issued on his alleged official letter pad. The letter was attested on 28.11.1996 by some unknown person and forwarded for appropriate action. Since the aforesaid letter, on the face of it, appeared to be forged, the authorities of department and Ministry of Communication enquired from the Secretariate of Hon'ble President of India regarding the genuineness of the letter and it was confirmed that no such letter had been issued from the office of President of India.
4. Thereafter, the matter was reported to CBI for registration of FIR through vigilance department and for investigation in the case. During investigation, it was once again confirmed that the alleged letter received in the department, was forged and fabricated, as it was not issued from the office of President of India as re-iterated by the officials posted at the Secretariate of the Hon'ble President of India. It was also found that a different typewriter was being used at the Secretariate of the President than the typewriter which was used to type the forged letter. Relevant witnesses were examined. Search and seizure of the premises of the accused was also carried out leading to recovery of further copies of the alleged forged letter. Specimen handwriting of accused was obtained, however, the original forged letter, the copy of which had been received by the department of communication, could not be traced out from the search of the premises of accused nor it could be established as to who had sent the said letter. Hence, CBI filed closure report in the present case on DOD 14.08.2023 Page No. 3/22 P. Damodaran Vs. CBI CA No. 28/2019 20.08.2018, however, the concerned Ld. CBI Court rejected the closure report and instead, took cognizance of the offences punishable u/s 471/420/511 IPC and issued the summons upon the appellant / accused to face trial.
5. Charge was framed against the accused for the aforesaid offences punishable u/s 471/420/511 IPC vide order dated 07.08.2002 to which the appellant/accused pleaded not guilty and claimed trial. During trial, 26 witnesses were got examined by the prosecution / CBI to prove its case against the appellant/accused. The appellant/accused however did not lead any evidence in defence despite opportunity. Upon completion of trial, he was convicted and sentenced as aforesaid by the Ld. Trial Court.
6. In the present appeal, the appellant / accused has assailed the aforesaid judgment upon primarily the following grounds :-
(i) It is contended that the Ld. Trial Court erred in convicting the accused even though closure report was filed by CBI.
(ii) It is further contended that the original of alleged forged document / letter was never retrieved by the prosecution. In the absence of original, conviction for offence of forgery and other related offences cannot be sustained. Several judgments were relied in this regard.
(iii) It is further contended that even otherwise, the prosecution could not establish the ingredients of offence u/s 471 IPC since the admitted / sample signatures of then Hon'ble President of India were not taken nor anyone had been examined to compare the admitted signatures of the Hon'ble President with the alleged forged signatures. Moreover, no benefit had accrued to the accused due to the alleged forgery. So, charge u/s 471 IPC was unsustainable.DOD 14.08.2023 Page No. 4/22
P. Damodaran Vs. CBI CA No. 28/2019
(iv) As regards, offence u/s 420 IPC is concerned, it is contended that even the said section is not attracted since from the alleged delivery of forged letter, no wrongful gain to anyone or no wrongful loss to another, had been caused, which was a mandatory requirement under the said provision.
(v) It is further contended that there is no FSL result to show that the forgery was committed by the accused and prosecution has failed even to show any connectivity of accused with the alleged use of document. The prosecution also failed to prove that the document was forged and so, no offence u/s 420/471 IPC r/w section 511 IPC is made out.
7. Prayer is accordingly, made to set aside the judgment dated 30.08.2018 and the consequent order on sentence dated 19.12.2018, passed by the then Ld. CMM, Central District.
8. Reply to the said Appeal was filed on behalf of respondent/CBI. It is admitted that after investigation, CBI had filed a closure report in the case on 20.08.1998, however, the same was not accepted by the concerned court, which took cognizance of the offences and issued notice to the accused. It is contended that after completion of trial, appellant/accused was rightly convicted for offences u/s 471 and 420 r/w section 511 IPC and the Ld. Trial Court had rightly appreciated the entire evidence on record and passed the judgment.
9. It is further contended that it was a matter of record that the original of the letter in question could not be retrieved or found or recovered from anywhere. However, the said original letter had never been used as such by the offender and only a photocopy of the document had been sent to the DOD 14.08.2023 Page No. 5/22 P. Damodaran Vs. CBI CA No. 28/2019 department of communication for further action. Being a forged document, no such letter, original or photocopy was there, nor could be expected to be there, in the records of the office/Secretariate of the Hon'ble President of India. It would be only in the personal knowledge of the offender or sender of letter, as to where the original was or the source from which he obtained photocopy of the document. In such a position, the absence of original forged document was not fatal to the prosecution case, as existence of some original was not absolutely essential to maintain a prosecution for the offence of forgery, when the photocopy itself was a forged document. When such photocopy itself is a forged document, such photocopy would be primary evidence and the same was used by the appellant with malafide intentions.
10. It is further contended that the accused had not taken any specific defence during the entire trial or even in his statement u/s 313 Cr.PC, except baldly denying the allegations and the incriminating circumstances appearing in evidence against him. The accused had not explained in what circumstances, the photocopy documents were recovered from his house or were bearing his handwriting. He had also not explained for what purpose, he had given the documents to be photocopied or faxed to his colleague.
11. It is further contended that a bare perusal of the forged letter, makes it clear that the letter could not have been genuine or issued by the Hon'ble President of India. In fact, no such letter certifying about the tribal status of a person or setting aside disciplinary proceeding against a person, on the basis of representations, is issued by the Hon'ble President of India. Further more, loose and informal language also having grammatical and other DOD 14.08.2023 Page No. 6/22 P. Damodaran Vs. CBI CA No. 28/2019 mistakes, cannot be said to be the official and formal language of highest office of the country.
12. Lastly, it is contended that even there was no requirement to examine anyone who had actually seen the Hon'ble President of India writing or signing as is being contended by the appellant/accused since even the appellant/accused had not claimed that the said letter was a genuine document or that such a letter had been actually issued in his favour by the President of India. It is also not the case of the appellant/accused that the letter being a genuine document, its record had been concealed from the court or deliberately removed from the President Secretariate. Prayer is accordingly made to dismiss the appeal.
13. Arguments were addressed at length from both sides. Several judgments were also relied upon by the counsel for the appellant and the same shall by dealt with in the later part of this judgment.
14. I have heard considered arguments of both the sides as well as perused the material on record.
15. The appellant/accused herein has been convicted for the offence u/s 471 IPC for using a forged document. Hence, it was essential for the prosecution to first prove whether the document allegedly used by the appellant/accused i.e. letter dated 28.11.1996 was a forged document or not.
16. Before proceeding, it would be appropriate to discuss what is forgery. A person can be alleged to have committed forgery as per Sec 463 DOD 14.08.2023 Page No. 7/22 P. Damodaran Vs. CBI CA No. 28/2019 IPC, only when he makes a false document of the nature as specified in Sec 464 IPC. The said section 464 IPC is reproduced for ready reference :-
Making a false document. -- A person is said to make a false document or false electronic record--
First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) 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 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 practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
17. In simple language, a person commits forgery of a document, when he makes, executes, signs or seals, etc., a document or causes it to be made, executed, signed or sealed, etc., in the name or authority of another person, who had not so made, executed, signed or sealed it. He also commits DOD 14.08.2023 Page No. 8/22 P. Damodaran Vs. CBI CA No. 28/2019 forgery when he materially alters a document than what it originally existed. Lastly, he commits forgery, when he causes a person to sign, seal, execute or alter a document and such person was not aware of the contents of the same, due to reason such as unsoundness of mind, intoxication, or deception played upon it.
18. The appellant/accused herein is alleged to have sent letter Ex. PW- 1/H1 to Department of Communications, Central Govt., which was allegedly issued by the Hon'ble President of India directing that disciplinary proceedings against the appellant/accused by Divisional Head, are set aside and community status of the official be accepted as Scheduled Tribe. The Minister concerned was also directed to issue appropriate orders in that regard. The said letter is bearing the Ashoka Emblem, below which "President, Republic of India" is mentioned. The letter is bearing letter number, date and the address of Rashtrapati Bhawan, New Delhi from which it was purportedly shown to be issued, besides the facsimile signature of the Hon'ble President of India. The letters also bear the name and address of the addressee (Minister of Communications). On a casual look, without reading the contents thereof, the letter appears to be a genuine letter and the letter could easily deceive a common person, who is not well versed with the Govt. functioning at the highest level. The contention of the appellant is that the prosecution has failed to prove that the same was a forged document as no such person has been examined who can compare the signatures of Hon'ble President of India on the alleged forged letter with that of his original signature. However, in my opinion, the said contention is completely misplaced.
19. Firstly, it is not the case of the appellant himself that any such letter Ex. PW1/H1 had been issued in his favour by the Hon'ble President of DOD 14.08.2023 Page No. 9/22 P. Damodaran Vs. CBI CA No. 28/2019 India. It is also not the case of the appellant that any such directions as passed in the said letter, had been passed in his favour, by the Hon'ble President of India. It has been rightly observed by the Ld. Trial Court that it is also not the case of the accused that the letter Ex. PW-1/H1 being a genuine document, its record had been concealed from the court or deliberately removed from the President Secretariate. It is settled law that facts admitted or which remain unrebutted/un-controverted need not be proved. Even though, the appellant/ accused had not expressly admitted that the said letter was forged, however, he has nowhere contended that the said letter was a genuine document, issued by the Hon'ble President of India. Even assuming for the sake of arguments that the letter Ex. PW1/H1 was bearing the actual facsimile signature of the President of India, even then it would not have made any difference since the signature is not manually inscribed by the President in his handwriting, on the letter (being facsimile signature) and the prosecution was only required to prove that no such letter was issued from the President Secretariate.
20. Even otherwise, the forgery of the letter is writ large on its face. The Ashoka Emblem on letter Ex. PW-1/H1 has been compared with the actual Emblem on the real letterhead of the Presidential Secretariate Ex. PW-24/D1 to Ex. PW-24/D4 by the FSL expert examined as PW-24 and as per his FSL result Ex. PW24/A, that the questioned xerox matter containing Ashoka Emblem and just below English and Hindi typed matter, including that on letter Ex. PW- 1/H1 & Ex. PW1/E1 was found to be different from the Ashoka Emblem and the typed matter, on the actual letterhead which are Ex. PW-24/D3 and Ex. PW-24/D4. Further, there is no record in the President Secretariate of the letter number which is mentioned in the letter Ex. PW-1/H1. The prosecution obviously could not have produced any document to prove that the said DOD 14.08.2023 Page No. 10/22 P. Damodaran Vs. CBI CA No. 28/2019 document does not exist, if it has not actually been issued from the President Secretariate i.e. it could not have led evidence of something in the negative to prove its non-existence. Had any other letter been issued with the concerned letter number, and the letter Ex. PW-1/H1 was forged by mentioning the said actual letter number, then only the prosecution could have proved the original letter with the concerned letter number, which is not the case herein.
21. The prosecution has also examined one witness from the Presidential Secretariate i.e. PW-6, the retired LDC from Cash Section of Presidential Secretariate, who clearly stated that the letter in question was not typed in the office of Presidential Secretariate. PW-6 further stated that in the genuine letters of Hon'ble President of India, no letter number is mentioned whereas the forged letter on record bears letter number. He further stated that the signature of Hon'ble President of India were not made on facsimile but the forged letter was bearing the facsimile signatures, which showed that the same were forged. The testimony of this witness has remained unimpeached.
22. The prosecution further examined PW-8, then Secretary of Department of Telecom, who though admitted that he had not personally investigated the authenticity of the questioned letter but on a bare perusal of the said letter, he formed opinion that such letter could not have been signed by the President as the format of the letter was not the regular format of the President. The English language used in the letter also gave impression that it was forged. He further stated that the address of the concerned minister for communications was mentioned in the forged letter as that of Sansad Bhawan, where his office was not located. Moreover the letters of such nature were generally sent to the office of Minister through his Private Secretary, which DOD 14.08.2023 Page No. 11/22 P. Damodaran Vs. CBI CA No. 28/2019 was not so in this case. This clearly shows that the person sending the letter, who was not aware of even such basic things, could not be the staff/official working in the President Secretariate.
23. Prosecution further examined then Private Secretary to the Minister of Communication as PW9, who also stated that the copy of questioned letter Ex. PW-1/H1 appeared to be forged because the language used in that letter was not the usual official language and there were spelling and grammatical mistakes. He also stated that in letter Ex. PW1/F/4 which was the copy of same forged letter but received through Fax, the dispatch number of his department was also not mentioned. Both the said witnesses were very high ranked officers of the government at that time and their testimonies cannot be lightly wished away, without any plausible reason. From the aforesaid it is quite clear that the letter Ex. PW-1/H1 was not issued from the Presidential Secretariate as such and was also not bearing the signatures of the Hon'ble President of India, hence it being not an official letter, was clearly a forged document which has been used in this case.
24. However, it is also an admitted fact that the original of this forged letter could not be procured by the respondent / CBI despite all efforts. A search was also carried out at the house of accused but recovery of original document could not be effected. Under such circumstances, a question which arises is that "can a Court convict a person for use of a forged document without recovery of the original forged document ? Ld. Defence Counsel argued that conviction was not maintainable and reliance was placed by on the judgment in the case titled as Srichand P. Hinduja Vs. State, 2005 SCC Online Del 676 where it is was held that in the absence of original forged DOD 14.08.2023 Page No. 12/22 P. Damodaran Vs. CBI CA No. 28/2019 document or evidence regarding the whereabouts of the originals, the case of forgery cannot be proved nor a charge u/s 465 IPC can be sustained. Reliance was also placed on the judgment in the case titled as Subhash Harnarayanji Laddha Vs. State of Maharashtra, (2006) 12 SCC 545 and J. Yashoda Raje (2007) 5 SCC 730 where it was held that in the absence of original, the photocopies would not be admissible in evidence. Ld. Defence counsel has further relied upon on the judgment of Sujata Vs. State of Kerala, (1994) SCC Crl 1786 where it was held that in the absence of original being produced at the stage of trial, offence punishable u/s 471 IPC could not be proved. Hence, from the perusal of the aforesaid judgments which are clear on the subject, it was imperative that the original of letter Ex. PW-1/H1, PW1/E1 and Ex. PW10/A (another forged copy of same letter recovered from the possession of accused bearing his alleged original endorsement), should have been placed on record by the prosecution, to sustain charge u/s 471 IPC.
25. The Ld. Trial Court relied upon the judgment in the case titled as Nakul Kohli Vs. State, ILR (2010) 5 Del. 644 where it was held by Hon'ble Delhi High Court that where a photocopy is used as a primary offending article, the same would be primary evidence for the purpose of trial of the said case. Relying upon the said judgment, Ld. Trial Court opined that since the appellant/accused herein had used a photocopy as original letter for the purposes of cheating his department, the said photocopy shall be deemed to be the primary document and hence, convicted the appellant/accused u/s 471 IPC. However, in my considered opinion, the Ld. Trial Court has wrongly placed reliance upon the judgment of Nakul Kohli (Supra) since the facts of the said case are clearly distinguishable from the present case. In the said case the accused had used a colour copy of VISA which resembled a real VISA and had DOD 14.08.2023 Page No. 13/22 P. Damodaran Vs. CBI CA No. 28/2019 produced it before the government officials as a real VISA. In that scenario, the Hon'ble High Court opined that with the kind of technology that is available now, when exactly similar copies of the original can be made, it would fall within the ambit of making a false document. However, the case herein is slightly different since it is not the case that the original of letter Ex. PW-1/H1 or telegram Ex.PW-1/F/4 did not exist, for if the original did not exist, the appellant/ accused could not have sent copy of it. Moreover, in the present case the prosecution has not been able to prove the manner in which the alleged forgery was committed. The Ld. Trial Court has itself observed that since the original forged letter could not be recovered, so it could not be determined whether the original letter head which was used in preparing letter Ex. PW-1/H1, was a genuine document/letter head and its photocopy had been created by superimposing some part of the genuine part and create a forged copy. It has further observed that qua offence u/s 467 IPC, the evidence on record was not sufficient to establish that the forged document was created or prepared by the accused. So even the maker of the forged document could be ascertained. Moreover the judgment of Nakul Kohli case was with respect to order on framing of charge and not a final order, upon trial.
26. Furthermore, the appellant/accused cannot be convicted for the offence u/s 471 IPC is also clear from the fact that the punishment prescribed for the offence u/s 471 IPC is the same as if the person using a forged document as genuine, had himself forged such documents. If the intention of the legislature was to give same punishment under this provision as that of actual forgery, then it was imperative to bring the original forged document on record. Infact, the Ld. Trial Court has taken a contradictory position especially when it has opined in para-45 of the judgment that "when such photocopy is DOD 14.08.2023 Page No. 14/22 P. Damodaran Vs. CBI CA No. 28/2019 itself a forged document, such photocopy would be primary evidence only" so if photocopy had been treated as primary evidence of forged document and some of the forged photocopies even bear the handwriting of appellant/ accused, he should have been charged even for the offence of committing forgery, which is also not the case herein. In the absence of evidence as to how the forgery was done and by whom and also due to non-production of the actual forged document, in my considered opinion, the prosecution has failed to connect the act of actual forgery of document with the accused, beyond reasonable doubt. Hence in my considered view, the conviction of accused u/s 471 IPC on the basis of photocopy of forged letter, in the absence of original forged letter, was not proper.
27. The appellant/accused has also been convicted for offence u/s 420 IPC r/w Sec 511 IPC. As per Sec 420 IPC, 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. Now as per Sec 30 IPC, the words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extin- guished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right. By virtue of letter Ex. PW1/H1, the right of Department of Post to carry out disciplinary departmental proceedings against the appellant/accused, had been sought to be extinguished. Besides, he was also sought to be conferred the status of a member of Schedule Tribe, which is a valuable right. Accordingly, the document Ex. PW1/H1, was DOD 14.08.2023 Page No. 15/22 P. Damodaran Vs. CBI CA No. 28/2019 indeed in the nature of a valuable security. Lastly, Sec 511 IPC talks about an attempt to cheat which is a stage prior to the actual commission of an offence.
28. As far as the offence of attempt to cheat punishable u/s 420/511 IPC is concerned, in my opinion, the evidence on record is more than sufficient to prove the same, especially when proving forgery of document, is not a pre- requisite for offence of Cheating. So, even though offence u/s 471 IPC is not made out against appellant/accused, however, the facts on record does show that there was an attempt made to cheat the postal department, so as to close the disciplinary proceedings pending against him. The appellant/accused has not disputed the factum of receipt of the copy of forged letter at the postal department. He has also not disputed that the procedure followed by the department of Communications, in making complaint with CBI, by processing the same at various levels. He has also not disputed the preparation of various letters, communications, etc., by different officials dealing with the matter at different stages, which ultimately led to the registration of the FIR. Even in this Appeal, the said facts are not disputed. The letter Ex.PW1/H1 was certainly not issued from the President Secretariate. So, the only question remains, whether it was the appellant/accused who had attempted to cheat by sending the copy of the forged letter with criminal intent or whether the letter was sent by some other person, who wanted to frame the appellant / accused as had been alleged by him before Trial Court?
29. It has come on record that the appellant / accused was working as Postal Assistant in the department of post. It is also undisputed that disciplinary proceedings had been initiated against him by his department, qua some alleged forged caste certificate. These facts were exclusively within the DOD 14.08.2023 Page No. 16/22 P. Damodaran Vs. CBI CA No. 28/2019 knowledge of the appellant / accused and probably his associates/seniors in the department of post. He had also directly sent representations to the President of India, qua those disciplinary proceedings. Now, letter Ex. PW-1/H1 is addressed to Minister of Communication under whom the department of post works. Through this letter, a false communication was sought to be given to the Ministry of Communication that those departmental proceedings against appellant / accused had been set aside, which was not the factual position. So, it is quite clear that either the appellant / accused or someone who had the knowledge of departmental proceedings and the representation made before Hon'ble President of India, could have sent the said letter as well as Telegram Ex. PW1/F/4.
30. The appellant / accused has alleged in his statement u/s 313 Cr.P.C. that his seniors had framed him in this false case as he had made complaints against them. However, the appellant / accused has not provided the name of his seniors, who tried to frame him nor has he brought on record any evidence in support of his above allegations. He also could not placed on record, any such complaint that had been made by him to anyone, against his seniors. Hence, the same have remained bare allegations without any proof and is a frivolous defence.
31. As regards the question as to who had sent the letter and Fax of forged letter are concerned, there is no direct evidence and the prosecution case is lying on the circumstantial evidence to prove it. The prosecution examined PW-11 (a telegraph official) who was a person to whom the appellant / accused had asked to take out xerox of one paper Ex. PW-10/A (which is a copy of forged letter bearing original endorsement of accused and was allegedly DOD 14.08.2023 Page No. 17/22 P. Damodaran Vs. CBI CA No. 28/2019 recovered from the premises of accused). He had xeroxed the same and thereafter telegrammed it at the request of appellant/accused from Madurai Mahal Telegraph office vide receipt Ex.PW-11/A. Though in his cross examination the witness states that he did not know how to read and write English, hence it was not conclusively proved that the accused had handed over letter Ex.PW-10/A itself, to him, to take out its xerox copy, however, at the same it does prove that some telegram had been sent at the behest of appellant/accused. The appellant/accused fails to explain as to which telegram had been sent by him through PW-11, if not letter Ex. PW10/A. PW-12 another official from telegraph office proved the receipt Ex. PW-11/A of the said Telegram as being a genuine document. Hence, the prosecution has managed to connect the receipt Ex PW-11/A with the telegram of the forged letter Ex. PW1/F/4, which was received at the Department of Communication. So, from the aforesaid, it is clear that the telegram sent at the behest of appellant/ accused, was with respect to the forged letter Ex. PW-1/H1.
32. Moreover, upon search of the premises of appellant / accused, several documents and their photocopies numbering 163 pages, were recovered. The search was conducted by PW-22, after obtaining necessary search warrants. During the said search, two further copies of the forged letters i.e. document Ex. PW-10/A and Ex. PW-24/C were also recovered. As per the FSL result Ex. PW24/A, the letters Ex. PW-10/A and Ex.PW-24/C were similar to letter Ex. PW-1/E1 which was photocopy of letter Ex. PW-1/H1, which was received at the Department of Communication. From FSL result Ex. PW-24/A, it transpires that photocopies of letters Ex. PW-10/A, Ex.PW-24/C and Ex. PW-1/E1, had the same source, which means that all the photocopies were made from one original forged letter. The appellant/accused fails to explain as DOD 14.08.2023 Page No. 18/22 P. Damodaran Vs. CBI CA No. 28/2019 to how photocopies of forged letter i.e. Ex. PW-10/A and Ex. PW-24/C were recovered from his premises, if he had no connection with letter Ex. PW-1/H1. This further shows that the appellant/accused was well aware of the existence of said letters and the photocopy of the same forged letter had been sent by way of post as well as Telegram, which clearly connects the appellant/accused to letter Ex. PW-1/H1.
33. Furthermore, it can also be seen that there is an endorsement made in blue ink in original in letter Ex. PW-10/A, (one of the photocopy of forged letter recovered from his possession). PW-10 i.e. the postmaster at sub-post office, Munchalia Road, Madurai, was examined by prosecution and he deposed that he knew the appellant/accused as he was working at the same sub-office as Postal Assistant. He identified the handwriting qua the endorsement made on letter Ex. PW-10/A, to be that of the appellant/accused himself. Even as per the FSL result Ex. PW-24/A, the said endorsement on Ex. PW-10/A appeared to be that of accused. Though it was argued that specimen signatures of appellant/ accused were obtained without permission of the Court but the Ld. Trial Court has rightly rejected this argument and held that besides the specimen handwriting and signatures of appellant/accused, which were obtained by the investigating agency, there were many other documents on record which contained the admitted handwriting and signature of the appellant/ accused and even the Court can compare the same to arrive at a conclusion.
34. The counsel for the appellant/accused had questioned the search and seizure proceedings during defence arguments, as is also apparent from the cross examination of search and seizure witnesses. However, no such ground DOD 14.08.2023 Page No. 19/22 P. Damodaran Vs. CBI CA No. 28/2019 has been taken in the present appeal. So as far as the present appeal is concerned, the search and seizure proceedings are not in dispute. Moreover, the documents recovered from the house of appellant/accused contains various such documents/letters which cannot be in possession of any other person except the accused or his family members. So, if search and seizure had not been conducted at his premises, such documents would not have come in possession of the investigating agency. Hence, even otherwise, search and seizure proceedings cannot be doubted. This further connects him with the alleged act of cheating.
35. The Court can also not lose sight of the fact that the appellant/ accused would have been the direct beneficiary of this criminal act if the Ministry of Communication/Department of Post had acted upon the said forged letter Ex. PW-1/H1, without going for its verification. One of the grounds of Appeal raised by the appellant/accused is that no benefit accrued to him because of the said act, so offence was not made out, however, this contention is totally misplaced. No benefit accrued to the accused not because of any act attributable to the appellant/accused but rather for the reason that the forgery was detected at the outset itself, by the department. Hence, there was also no occasion for any wrongful gain to anyone or wrongful loss to another. Moreover, it has to be seen that the appellant/accused has been convicted for an offence of attempt to cheat and not offence of having actually successfully committed cheating. The appellant/accused had done all what could have been possibly done by him and all the acts relating to act had been committed from his side, so attempt was complete, it is only that the desired result could not be obtained.
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36. It was further contended on behalf of the appellant / accused that a closure report was filed by the CBI as it found no evidence against the appellant / accused but the Ld. Trial Court ignored the same and proceeded to take cognizance against the appellant / accused. However, this argument is not sustainable, firstly for the reason that Court is not bound by the opinion of the investigation agencies, regarding filing of charge sheet or closure report. Infact the Court is required to make an independent assessment on its own, on the basis of material on record and then proceed to take cognizance or decline to take cognizance or order for further investigation. Moreover, the order taking cognizance against the appellant / accused had attained finality and cannot be agitated now at the time of appeal, which is against final order.
37. It is also worth stating at this stage that there are indeed some gray areas in the investigation. The respondent / CBI should have ideally taken permission from the Court before proceeding to obtain the specimen handwriting and signature of appellant / accused. It should have also sent the writings on letter Ex. PW-1/H1 to FSL, for comparison with the writings of typewriter used in the Presidential Secretariate. Since the forged letter head bear close resemblance to the actual letter head, investigation should have also been conducted to find out whether any staff/official of Presidential Secretariate was also involved or not. Rather the investigation has been carried out in a half-hearted manner. There are also some discrepancies and infirmities in the prosecution evidence and the deposition of its witnesses, however, it has been rightly observed by Ld. Trial Court that some minor variations, omissions, exaggerations and contradictions are bound to creep in the testimony of witnesses, particularly when they are examined after lapse of sufficient time, but unless such variations or omissions go to the root of the DOD 14.08.2023 Page No. 21/22 P. Damodaran Vs. CBI CA No. 28/2019 matter, they have to be ignored. Even otherwise, the law with respect to the burden of proof on prosecution is that of "proof beyond reasonable doubt" and not that of "proof beyond all doubts". As a whole, the prosecution evidence is sufficient so far as the charge for the offence u/s 420/511 IPC is concerned.
38. With these observations, the present appeal is partly allowed. The appellant / accused is acquitted for the offence punishable u/s 471 IPC. However, his conviction for the offence u/s 420 r/w Section 511 IPC as held by Ld. Trial Court, is sustained.
39. Appellant / accused be heard separately on the point of sentence since he has also challenged the order on sentence passed by Ld. Trial Court.
Ordered accordingly.
Announced in the open court on this 14th day of August, 2023 (ATUL KRISHNA AGRAWAL) ASJ/SFTC-02(CENTRAL) TIS HAZARI COURTS: DELHI:
Certified that this judgment contains 22 pages and each page bears my signatures.
(ATUL KRISHNA AGRAWAL) ASJ/SFTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:14.08.2023 DOD 14.08.2023 Page No. 22/22