Delhi District Court
Rakesh Kumar Gupta vs State (Gnct Of Delhi) on 26 November, 2015
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IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CA No.16/15
Rakesh Kumar Gupta
S/o Late Sh.Alopi Prashad
R/o 437, Khanna Nagar,
Loni, District Ghaziabad,
Uttar Pradesh
....... Appellant
Versus
State (GNCT of Delhi)
....... Respondent
FIR No.:142/2000
P.S: Hauz Qazi
u/S: 381/420/468/471 IPC
ORDER
1. Vide this order, I shall dispose off the present appeal filed by the appellant/convict against the judgment dated 25.04.2015 and order on sentence dated 29.05.2015 passed by Ld.Trial Court, whereby he was held guilty and was sentenced to one year simple imprisonment for committing CA No.16/15 1 of 23 2 offence punishable u/S 381/420/468/471 IPC and fine of Rs. 10,000/ payable to the State.
2. The brief facts which can be culled out from the order of Ld. Trial Court are as under: "1. The Police Machinery has been swung into action on written complaint dated 06.06.2000 (Ex.PW8/A) of Sh.Lalit Wadhera, then Chief Branch Manager of Bank of India of branch Hamdard Dawakhana, Delhi branch. As per said complaint, accused Rakesh Kumar Gupta had worked as clerk at Hamdard Dawakhana branch of Bank of India from Aug.1993 to 13.11.1999 and he used to look after time deposits counter. It is alleged in said complaint that accused Rakesh Kumar Gupta had stealthingly removed one "double benefit deposit receipt book" containing 100 leaves bearing serial CA No.16/15 2 of 23 3 No.105901 to 106000 and he had issued following receipt fraudulently to some of the customers of the bank:
Serial Date Amount Name of the person
No. of
book
105924 20.09.1999 15,123.00 Mahesh Chandra
105943 12.11.1999 50,000.00 Chandrawate &
Mahesh Chand
105937 17.05.2000 41,430.00 Deepak Jaiswal
105938 25.05.2000 40,700.00 Deepak Jai
It is also stated in said complaint of
then Chief Manager that those transactions were not supported by any vouchers/entry in the books of the bank. In course of investigation, accused was apprehended vide arrest memo Ex.PW6/A and customers namely Mahesh Chand, Deepak Jaiswal and Chandra Vati produced double benefit deposit (DBD) certificate allegedly issued by accused to them. I.O had seized said DBD CA No.16/15 3 of 23 4 certificate vide seizure memo Ex.PW5/C, PW3/A and PW2/A. I.O had collected admitted documents of accused alongwith his bank statements and sent the same alongwith disputed certificate to CFSL for forensic examination. After receiving result of CFSL and completion of investigation, IO filed chargesheet for cognizance by the Court. On prima facie basis, charge had been framed against accused on 05.09.2001 and he has been subjected to trial for committing offence punishable u/S 381/420/468/471 IPC on account of alleged theft of DBD receipt book from bank, fraudulent issuance of receipts and cheating the customers and the bank by inducing them to make payment and also knowingly using forged receipt as genuine. The prosecution had examined as many as nine witnesses for providing its case. Explanation CA No.16/15 4 of 23 5 of accused U/s 313 r/w 281 of CrPC qua incriminating evidence of the prosecution was recorded wherein he pleaded that he is innocent and he never issued any forged DBD to any customer and also raised plea of false implication by the bank official. Accused preferred not to lead any defence evidence to prove his said claims. Ld. APP for the State and Ld defence counsel made detailed final arguments. Ld defence counsel had also filed written arguments on record."
3. The prosecution in this case had examined nine witnesses in support of its case before the Trial Court.
4. PW1 is ASI Karan Singh, who proved the copy of FIR as Ex.PW1/A.
5. PW2 is Smt.Chanderwati, PW3 Sh.Mahesh Chand, PW4 Smt.Saroj Sharma and PW5 Sh.Deepak Jaiswal were all victims of the alleged deception and cheating practiced by the appellant/convict.
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6. PW6 is Ct. Mukesh Kumar, who had accompanied the IO at the time of arrest.
7. PW7 is Deepa Verma, Dy.Director from FSL, Rohini, who had compared the questioned signatures appearing on documents, which were seized from the victims mentioned above with the admitted signatures of the accused and had given her report regarding the same vide Ex.PW7/A.
8. PW8 is Sh.Lalit Wadhera, retired Chief Manager, Bank of India, Hamdard Dawakhana Branch, the complainant, who has proved his complaint Ex.PW8/A on the basis of which FIR was lodged against the accused/appellant.
9. PW9 is IO Retired Inspr. Ramesh Chander Gaur, who had investigated the case and had also arrested the accused and had seized the relevant documents during the investigation of the present case.
10. Thereafter, statement u/S 313 Cr.P.C of the convict/appellant was recorded in which the entire incriminating evidence was put to the appellant and his defence was that he had been falsely implicated by the bank officials, he was innocent and he did not wanted to lead any CA No.16/15 6 of 23 7 defence evidence.
11. The Ld. Trial Court vide judgment dated 25.04.2015 and order on sentence dated 29.05.2015 convicted the accused as stated above.
12. The convict/appellant has now approached this Court on various grounds amongst the following main grounds that :
i). Ld.Trial Court had wrongly held that the convict had stolen one book of "Double Benefit Deposit (DBD)" receipt book, as the prosecution has not produced any bank employee to prove that it was issued to some other person from whose possession it was stolen nor any FIR for the theft of said DBD book was ever lodged.
ii). Ld. Trial Court had failed to appreciate that the alleged DBD receipts does not bear the signatures of appellant/convict. The document is signed by M.R.Malhotra and Puran Chand Dua, officers of the bank, who were neither cited as witnesses nor produced in the witness box for their evidence, nor they were joined in the investigations, CA No.16/15 7 of 23 8 nor their statements u/S 161 Cr.P.C were recorded and they were the proper persons to admit or deny the said document, therefore it is quite possible that they might have issued the said documents. In this situation, the view which favours the appellant / convict shall prevail in view of judgment of Hon'ble Supreme Court in AIR 1973 SC 2773.
iii). Ld. Trial Court has relied upon the confessional statement made by the appellant/convict before the Investigating Officer, which is not admissible as per Section 25 of the Indian Evidence Act.
iv). Ld. Trial Court has not taken into consideration this fact that PW4 and PW5 have deposed that they had given payment to the appellant/convict vide cheques, but the prosecution had not collected those cheques nor they were produced in the Court, which fact also goes in favour of the appellant. There is also certain discrepancies in receipt of the DBD certificates from CA No.16/15 8 of 23 9 the alleged victims.
v). It is stated that the appellant has not produced the bank statement of the relevant period which could show that above payments were not included in the statement of the bank and were excessive. This also shows that the accused has been wrongly implicated in this case, nor the diary and dispatch register of the bank was produced, which could have proved that the said certificates were not issued by the bank and the accused has wrongly forged them as alleged by the prosecution.
vi). Lastly, that the Ld. Trial Court has failed to consider that PW2, PW3 and PW4 have deposed that they had received the payment on DBD certificates from the bank, therefore the said DBD certificates are genuine and further, Ld.Trial Court has not correctly appreciated the FSL report, as the said report is of highly doubtful nature and is not safe to rely upon the said report to convict the accused, which is only an opinion, therefore it is CA No.16/15 9 of 23 10 stated that the conviction is liable to be set aside.
13. On the other hand, Ld. Addl.PP for State has stated that there is no infirmity or illegality in the judgment passed by Ld.Trial Court and the appellant has been rightly convicted. He has further argued that rather, Ld.Trial Court has taken a very lenient view in sentencing the appellant.
14. I have gone through the rival contentions and perused the record.
15. Ld. Counsel for the appellant/convict has relied upon following judgments in support of his case 1999 Cri.L.J.3763 Ramsingh Vs State of Maharashtra & Anr., AIR 1995 Supreme Court 1976 Union of India & Anr. Vs Ashok Kumar Mitra, AIR 1995 Supreme Court 1978 K. Ravindranath Pai & Anr. Vs State of Karnataka & Anr., AIR 2001 Supreme Court 330 Gura Singh Vs State of Rajasthan, 1977 Supreme Court 1091 = 1977 Cri.L.J.711 Magan Bihari Lal Vs The State of Punjab, AIR 1973 Supreme Court 2773 Kali Ram Vs State of Himachal Pradesh and AIR 1957 S.C.381 (V.44 C. 60 May) Ram Chandra & Anr. Vs State of Uttar Pradesh.
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16. The convict has admitted in his statement under Section 313 Cr.P.C that he was working as staff at the bank of Hamdard Dawakhana branch during the period August 1993 to 13.11.1999, so it is admitted that the accused was an employee and was working in the said branch. The prosecution has, however not proved that the said DBD receipt book containing S.No.105901 to 106000 had been issued to the convict. The prosecution has also not proved any evidence to whom it was issued. Though, it is the case of prosecution that the said DBD receipt book had been stolen / stealthily removed by him. Consequently, the prosecution has failed to prove as to how the appellant/convict came into possession of the said DBD receipt book containing the above S.Nos. Be that as it may. It was not difficult, since the accused was admittedly working in the same branch as Clerk, therefore he may have somehow obtained the possession of said DBD receipt book without any other bank official knowing the same, as he had the access and opportunity to do so. However, PW9 IO has admitted in his cross examination that bank has not lodged any FIR for the theft of said DBD receipt CA No.16/15 11 of 23 12 book. In these circumstances, since bank has not lodged any complaint regarding the theft of DBD certificates from their said branch to any authority, therefore there cannot be any question of theft nor any witness has been examined by the prosecution, who could say that they had seen the appellant stealing the said DBD receipt book nor there is any evidence on the record that appellant was entrusted with the possession of those DBD certificates which he misappropriated. Therefore, it cannot be said to be 'stolen property'. In the nutshell, prosecution has not been able to prove the offence u/S 381 IPC against the appellant. Therefore, Ld. Trial Court has clearly erred in holding so in its judgment dated 25.04.2015.
17. The identity of appellant/convict is not in dispute, as all the prosecution witnesses i.e. victims PW2 Smt.Chanderwati, PW3 Mahesh Chand, PW4 Smt.Saroj Sharma and PW5 Deepak Jaiswal, knew the appellant prior to the incident, as PW3 was running a Paan Shop and appellant used to take Paan from his Paan shop and PW2 also knew the appellant prior to the incident, as he used to visit the bank where the CA No.16/15 12 of 23 13 appellant was posted. Similarly, PW4 also knew the appellant in such capacity. PW5 also knew the appellant, as he has stated that he used to come to the shop of Mahesh Chand. Therefore, the identity of appellant has been clearly established and it is fixed that there is no error or doubt regarding the same.
18. From the above victims, the alleged DBD certificates issued by the appellant had been seized vide various seizure memos. The said DBD certificates are Ex.PW5/A, Ex.PW5/B, Ex.PW7/P1, Ex.PW4/A and Ex.PW7/P2. During the investigation, it appears that questioned signatures appearing at various points on those documents were taken for comparison by the IO for comparing the same with the admitted signatures of the appellant, which were available in the branch where the accused had been working which were A1 to A15 and specimens were taken which were S1 to S23.
19. All the victims including PW2 had categorically stated that she had handed over Rs.50,000/ to the appellant for preparing DBD certificate, which he issued to her and later on CA No.16/15 13 of 23 14 she came to know that she had been cheated and she handed over the said certificate to the police, which is Ex.PW2/A. Similar is the testimony of PW3 who had given Rs.15,000/ and to whom similar certificate was also issued, which was seized vide memo Ex.PW3/A and the said DBD certificate is Ex.PW3/B, PW4 had similarly given Rs.50,000/ by self cheque, she was also issued DBD certificate by the appellant, which she later on handed over to the police, which was seized by the police and the said certificate is Ex.PW4/A.
20. Similar is the testimony of PW5 from whom two certificates for Rs.40,700/ and Rs.41,430/ were seized vide seizure memo Ex.PW5/C. All of them were sent for forensic examination. PW7 Deepa Verma from FSL Rohini, in her categorical report has opined after careful examination of the questioned signatures on the said DBD certificates with admitted signatures of the appellant that the person who wrote blue enclosed writing, stamped and marked S1 to S23 and A1 to A15 also wrote the red enclosed writings similarly stamped and marked Q1 to Q3, Q6 to Q9, Q12 to Q14, Q17 to Q21, Q24 to Q30 for the detailed reasons given in her report CA No.16/15 14 of 23 15 including that there were similarities observed in general features such as writing movement, skill, speed, spacing, alignment, relative size and proportion of characters and nature of commencing and terminating strokes etc. and there is no divergence observed between the questioned and standard writings and the aforesaid similarities in the writing habits are significant and sufficient and cannot be attributed to accidental coincidence and when considered collectively they lead her to the above opinion.
21. Nothing has come out in her cross examination at all. In fact, no cross examination has been done of the said witness nor any suggestion has been given in the Court regarding the opinion expressed by her that same was not based on scientific basis nor her competency was questioned. Rather, the cross examination has been directed on the line with regard to the receipt of pullandas in the FSL and that it was tampered with and such kind of cross examination. No attack was made either on her competency, skill or the report per se given by the said expert.
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22. No doubt, the said FSL expert in her report could not give any categorical opinion with regard to the specimen signatures which were taken of the bank officials namely Sh.M.R.Malhotra and Sh.Puran Chand Dua, as their specimen signatures were also taken and sent for forensic examination to FSL Rohini and the FSL expert in her report Ex.PW7/A had opined that the model and design of the red enclosed signatures marked Q4, Q5, Q10, Q11, Q15, Q16, Q22, Q23, Q31 and Q32 are different from the model and design of blue enclosed signature marked S24 hence technically not comparable.
23. But at the same time, both were material witnesses, they should have been examined by the IO to prove that the signatures appearing on the said DBD certificates which mentions M.R.Malhotra and Puran Chand Dua on the said DBD certificates were not theirs, as they were the best witnesses to come into the witness box and depose so, but the same was not done. But on the other hand, if the said DBD certificates were genuine then what stopped the accused from summoning the said record to prove that the said DBD CA No.16/15 16 of 23 17 certificates were issued during the official course of banking business, as the said record of the bank if existing must have been backed up by the relevant credit and debit entries in the ledger of the bank issued by the various officials of the bank. The appellant has also failed to explain as to how his writings are appearing on the said DBD certificates issued to the victims of the said bank who had handed over their hard earned money to him, which DBD certificates were later found to be forged by them on inquiries.
24. Further, if the prosecution had not examined those bank officials as mentioned therein, the appellant could have moved an appropriate application to retake specimen signatures of those two bank officials and to resend the same for forensic examination, though one attempt was made by the IO which proved futile as per the report of the forensic expert Ex.PW7/A. It appears no such attempt was made by the appellant, as he fully knew that the said certificates had been issued only by him. In any case, bank could not have produced any negative evidence as no such evidence existed so they could not have manufactured or produced negative evidence. Ideally, the CA No.16/15 17 of 23 18 bank should have reported the loss of DBD receipt book to the police or to the higher authorities, as no explanation has come on the record as to how these receipts came into the possession of appellant. But as discussed above, it was not difficult for the appellant, as he was working as clerk in the said branch for a very long period i.e. about 6 years. Even if it has not been proved as to how he came into possession of those DBD certificates, yet he had to furnish his explanation as to how his writings were appearing on the DBD certificates, and why all the victims handed over the money to him only, which were not reflected in the relevant bank ledger(s) or bank record. Even otherwise, as per settled law, the lacuna(s) left due to faulty investigation(s) cannot affect the prosecution case, if it is otherwise credible.
25. It is not that the Trial Court has convicted him on the basis of FSL report only. No doubt, report of FSL alone is not sufficient to convict the accused, as the opinion of handwriting expert is a weak kind of evidence, since it is only an opinion and it cannot be fully relied upon, but same is corroborated by the testimonies of PW2 to PW5, who are the victims of CA No.16/15 18 of 23 19 cheating and deception. There can be testimonial error in the testimony of one witness, but there cannot be error in the testimony of all the PWs, who have no connection with each other, they are not related nor they have any sort of connection with each other. Therefore, there is no reason that they would conspire to depose falsely against the appellant to falsely implicate him in this case. The very purpose of seeking corroboration is to rule out testimonial error in the testimony of a single witness which may crept in due to various assorted reasons like observational errors, bias and like causes.
26. Therefore, the testimonies of all the material prosecution witnesses i.e PW2 to PW5 converges with each other and same is corroborated by the testimony of FSL expert PW7. Therefore, the prosecution has been able to prove that the accused made a false document within the definition of Section 464 IPC and it amounted to forgery as per Section 463 IPC. No doubt, the appellant practiced deception on all the victims by dishonestly inducing them to part with their money for his wrongful gain by issuing them forged DBD certificates which were never issued by the authority of Bank Manager of CA No.16/15 19 of 23 20 the concerned Bank of India, Hamdard Dawakhana branch. Since said forgery was for the purpose of cheating, the appellant has been rightly convicted u/S 468 IPC.
27. The said DBD certificates were also seized, as the same were handed over to all the victims as a certificate/receipt issued to them to show that they were rightly issued under the authority of the concerned authorised officer of the said branch which they never were. No doubt the prosecution had not produced the relevant self cheques which PW4 and PW5 had given to the appellant nor the relevant passbooks of the said documents have been produced during the trial to show the corresponding debit entries in their account, but that does not in any way whittles down the testimonies of PW4 and PW5, who have categorically stated that they had given self cheques to the appellant. There is no reason to disbelieve their testimonies and none of them had any previous enmity or axe to grind against the appellant. The net result of the above discussion is that Ld. Trial Court has rightly convicted the appellant based on the cogent evidence lead before it.
28. The question which is to be asked is how likely is the CA No.16/15 20 of 23 21 proposition considering the entire mass of the prosecution evidence as presented above, that the appellant is guilty of the above offence(s), than the proposition that the appellant is not. The answer to this depends upon the relative size(s) of these two propositions considering the entire mass of the evidence as discussed above. The proposition no.1 that the appellant is guilty of the aforesaid offence(s) is (N) times more than the proposition he is not, on the scales where the probability of happening any event is measured or assessed, it is almost touching the point of certainty, whereas other proposition has almost no probative force. In these circumstances, the judgment of Ld. Trial Court dated 25.04.2014 is upheld with a slight modification that the appellant shall only be held convicted u/S 420/468/471 IPC and not u/S 381 IPC.
29. Regarding the sentence part, I am of the considered view that the Ld. Trial Court had been too lenient with the convict as it has sentenced the convict/appellant to one year simple imprisonment for committing offence(s) punishable u/S 381/420/468/471 IPC and fine of Rs.10,000/ payable to the State.
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30. It appears that Ld. Trial court has treated the convict with kid gloves, as no reason has been given as to why such a lenient sentence has been awarded to the convict, who had the audacity to cheat 4/5 different victims by issuing them forged and fabricated DBD certificates without the authority of the concerned branch. Thereby mulcting huge amount for his wrongful gain and causing corresponding wrongful loss to them. It is a different matter that they later on got their money back after fighting in the Consumer Court, but this fact cannot be glossed over that the offence(s) of cheating u/S 420/468/471 IPC are very serious offence(s). In fact, both of them attract maximum punishment for a period of 7 years.
31. The Ld. Trial Court has also not given any reason or indication in its order as to why Simple Imprisonment has been awarded to the convict instead of Rigorous Imprisonment which is normally the rule. Be that as it may. Since no application for enhancement of sentence had been moved by the prosecution nor any separate appeal had been moved by the prosecution in this regard, therefore I do not want to interfere with the sentence awarded by the Ld. Trial Court.
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The same is also upheld. Consequently, the present appeal has no merits, same stands dismissed.
32. Trial Court file be sent back alongwith copy of this order. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 26.11.2015 Special Judge,
CBI03 (PC Act)
Delhi/26.11.2015
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