Delhi District Court
376 And That By The Hon'Ble Delhi High ... vs State Of on 23 January, 2013
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 105 of 2002
POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511 IPC
IN THE MATTER OF
STATE
VS
MASTAN SINGH ETC.
(i) Mastan Singh
S/o Mr. Fauja Singh
Village Awan Bhikh Shah,
PS Begowal, District Kapurthala, Punjab
(ii) Yash Pal
S/o Mr. Ram Saroop
R/o 28/98, West Patel Nagar, New Delhi
(iii) Sushil Kumar
S/o Mr. Avnash Dass
R/o Village Malia Kalam
PS Nakodar District Jallandhar
FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI
U/S: 420/468/471/511 IPC 1 of 11
Date of institution:31.05.2003
Date of reserving Judgement/Order:23.01.2013
Date of Pronouncement of Judgement/Order:23.01.2013
Brief statement of reasons for such decision:
1.It is the case of the prosecution that on 09.05.2002 at Canadian Embassy, both accused namely Yashpal and Sushil Kumar in furtherance of their common intention along with other co-accused Mastan Singh have applied for Visitor Visa for Mastan Singh, at Canadian Embassy, New Delhi and furnished forged documents as mentioned in the complaint dated 08.05.2002, 'Mark A' along with the application to obtain the said Visa and thereby attempted to cheat the Canadian Embassy. It is further alleged that both the above said accused used forged documents as genuine despite knowing that the documents were forged. On these allegations, present case was registered against the accused for the offences u/s 420/511/468/471 IPC.
2. After investigations, charge sheet in the matter was filed. A formal charge for the offences U/s 420/511/34 IPC & 471 r/w 34 IPC was settled against the accused Yashpal and Sushil Kumar on 15.10.2009 to which both accused pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined 5 witnesses out of the total 7 witnesses cited in the list of witnesses.
(i) No witness has been examined as PW 1. (ii) PW 2 Sh. Harbajan Lal, Officer from OBC, Kapurthala deposed
in his examination in chief that he was posted in Beguwala branch, Kapurthala, Punjab of Oriental Bank of Commerce since last one year; he had come to the Court on behalf of Manager 'Oriental Bank of Commerce' Branch Beguwala, District Kapurthala with regard to genuineness of FDR No. (Serial) 2356489 A/c 999 dated 29.10.2000 in favour of Mastan S/o Sh. Fauza; as per their records this FDR was not issued from their branch. He produced original cumulative FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 2 of 11 deposit ledger sheet vide which the FDR no. 999 with serial number 0459861/5972 were issued in favour of Ms. Gurjeet Kaur W/o Sh. Kuldeep Singh. He deposed that the said FDR was issued on 27.09.2000; he had placed the copy (certified) by Senior Manger on record and the same was Ex. PW 2/A bearing signatures of their Branch Manager Sh. Ashok Sabarwal at point A. He further stated that he had also seen the letter dated 04.02.2003 issued by the Manager, Oriental Bank of Commerce, Kapurthala and the same was Ex. PW 2/B bearing signatures of Manger at point A. This witness was not cross-examined by Defence despite opportunity being given.
(iii) PW 3 Vijay Kumar deposed in his examination in chief produced the scanning file in respect of passport no. B-3381317 dated 13.02.2001 which was issued to Mastan Singh. He stated that the said record was certified by Ms. Krishna Rani, Assistant Passport Officer, Jhalandhar, Punjab; the said record was collectively Ex. PW 3/A bearing her signatures at point A on each page. He stated that he had also seen the letter dated 14.02.2003 Ex. PW-3/B which was issued from their office and bearing signatures of the then Superintendent at point A. This witness was also not cross-examined by Defence despite opportunity being given.
(iv) PW 4 HC Deep Kumar proved on record the copy of FIR No. 105/02 as Ex. PW 4/A bearing his signatures at point A. In his cross-examination by Sh. Sanjeev Malik, Ld. Defence Counsel PW 4 admitted that he had no personal knowledge of the present case.
(v) PW 5 Ct. J.P. Dinkar deposed in his examination in chief that on 09.05.2002, he was posted at PS Chanakaya Puri. On that day he along with IO SI Kishan Kumar reached near Canada Embassy. The 1st Secretary Mr. A. Milic met them and produced one Mr. Mastan Singh, who was not present in the court being P.O. and gave a written complaint along with some documents to the IO. The rukka was prepared by the IO and the witness got the case registered in the PS and came back at the spot along with copy of FIR and original rukka. His FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 3 of 11 disclosure statement was recorded vide memo EX. PW 5/A and then he was arrested vide memo 5/B; his personal search was conducted vide memo EX. PW 5/C. All memos were bearing his signatures at Point A respectively. The specimen handwriting of the accused was also taken by the IO. The accused was medically examined. On 10/05/2012 disclosure statement of Mastan Singh, accused Yashpal and Sushil were recorded vide memo EX. PW 5/D and EX. PW 5/E. Both were bearing his signatures at point A and the disclosure statement of accused Yashpal was recorded vide memo EX. PW 5/F bearing his signature at point A. PW 5 identified both accused Yashpal and Sushil in the Court and further deposed that IO recorded his statement.
This witness was also not cross-examined by Defence despite opportunity being given.
(vi) PW 6 Narender Kumar, Assistant Director, CFSL, Shimla deposed in his examination in chief that he had joined this organization in the year 1987. In the present case he had received the documents from Addl. Dy. Commissioner of Police vide memo No. 3491/SO/A-DCP/NDD/New Delhi dated 27.09.2002; he had received questioned documents mark Q-1 to Q-5 now Ex. PW 6/A to 6/E along with specimen documents mark received as per memo No. 3491/SO/A-DCP/NDD/New Delhi dated 27.09.2002 received from Addl. Dy. Commissioner of Police. He stated that the questioned documents were compared with the standard / specimen documents by himself and Sh. A.S. Gupta the then Deputy GEQD and arrived at same conclusion / opinion bearing no. DXC 405/2002 dated 30.10.2002 now Ex. PW 6/F, which was signed by both of them at point A and B. He identified the signatures of Mr. Gupta as he had seen him writing and signing during the course of his official duty. The opinion and documents were returned to the sending authority vide letter no. DXC-405/2002/130 dated 30.10.2002 Ex. PW 6/G by Sh. S.K. Saxena the then Government Examiner. He identified the signatures of Mr. Saxena at point A as he had seen him writing and signing during the course of his official duties. In support of his opinion, he had submitted the reasons for opinion and the same was Ex. PW 6/H bearing his signatures at point A. This witness was also not cross-examined by Defence despite opportunity being given.
FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 4 of 11
4. No other PW was examined by the prosecution and the PE was closed and the matter was fixed for statement of accused u/s 313 Cr. PC.
5. Statement of accused Yashpal u/s 313 Cr. PC was recorded separately and all the incriminating material coming on record was put to him. He stated that he was falsely implicated in the present FIR, he was falsely arrested. He does not knew the accused Mastan Singh. He had nothing to do with the present case. The witnesses were interested witnesses. He declined to lead DE.
Statement of accused Sushil Kumar u/s 313 Cr. PC was recorded separately wherein he stated that he was falsely implicated in the present FIR and he was falsely arrested. He had never tried to misrepresent or mislead. He was standing outside the embassy of Canada with his friend who came to embassy for some work. He knew nothing about this case. The police official took his signatures on various blank papers. All the witnesses who deposed against him were interested witnesses. He declined to lead DE.
6. I have heard final arguments on behalf of parties and perused the record.
Before appreciating the evidence coming up on record, I find it relevant to refer to the provisions for the offences, which the accused has been charged with. Section 420 IPC Provides:
Cheating and dishonestly inducing delivery of property:
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]:
FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 5 of 11
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].
Section 511 IPC Provides:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, an in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
7. The present FIR has been registered on a complaint dt. 08/05/2002 lodged by Sh. A. Milic, First Secretary in the Canadian High Commission. It was alleged that the accused Mastan Singh applied for a Canadian visitor visa on 08/05/2002 and in support of his application, the accused Mastan Singh produced one letter of invitation from his alleged brother-in-law Mr. Rajwant Singh. On examination, it was revealed that it was a counterfeit document. It is was further alleged by the complainant that the accused Mastan Singh also produced fixed deposits from the Punjab National Bank and Oriental Bank of Commerce, examination of which also revealed that both the fixed deposit certificates were counterfeit. On the basis of this complaint, the present FIR was registered. As per the chargesheet in his disclosure statement accused Mastan Singh submitted that the accused Yashpal has got the said documents prepared in connivance with the co-accused Sushil Kumar.
8. As the accused Mastan singh was already declared PO, the prosecution in order to bring him conviction against the accused Yashpal and Sushil Kumar has to prove that both the said accused got the said forged document prepared which were presented by the accused Mastan Singh for procuring a visitor visa from the FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 6 of 11 Canadian High Commission.
9. The prosecution, however has failed to examine the complainant Mr. A. Milic despite ample opportunities for the same being given. The process to the complainant Mr. A. Milic was repeatedly received back with a report on behalf of Mr. Rick Shakespeare, Migration Integrity Officer, therein submitting that the complainant Mr. Tony Milich had already departed India and no representative of the Canadian High Commission will attend the Court.
10. In the absence of the complainant hence original complaint filed on record remains unproved. The allegation that the alleged forged documents were presented by the accused before the Canadian Embassy officials could not be proved in the absence of complainant. There is no linking evidence produced on record to connect the accused with the alleged offences. It was the complainant only who could have proved on record that the accused presented the alleged document before him.
11. As such whatever information has been given by the complainant is not admissible as evidence in the present case as per the Provisions in Section 60 of the Indian Evidence Act. Even the maker of the rukka, the IO has not been examined by the prosecution. The genesis and origin of the prosecution case is hence, falsified and unreliable. Further, the seizure memo produced on record does not mention that the said documents were handed over by the complainant nor it bears his signature as a witness, the same discredits the correctness and genuineness of the complaint as well as the seizure of the documents. To prove the allegations against the accused, it was incumbent upon the prosecution to examine the complainant in the witness box for proving the complaint and also to prove that the accused has infact produced the documents as alleged before the High Commission for procuring visitor's visa for the co-accused. It is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference is to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution. Further, in case despite ample opportunities if the prosecution fails to produce the material FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 7 of 11 witnesses, it calls for an adverse inference against the prosecution case. The non production of the material witnesses certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution.
12. As per the record, the other material witness which has been examined by the prosecution, PW-6 Narender Kumar, who was Assistant Director, CFSL, Shimla proved on record his report on the specimen signatures and handwriting of the accused persons as Ex. PW-6/F. In this report the Expert has opined that the person who wrote the red enclosed writings and signatures stamped and marked S-1 to S-4, S-9, S-10, S-10/1, S-15 to S-18 to S-21 to S-24 which are specimen handwriting and signatures of the accused Mastan Singh, who was already declared PO, also wrote the red enclosed signatures similarly stamped and marked Q-1 which are signatures of the accused Mastan Singh on his visa application Ex. PW-6/A.
13. It was further reported by the Expert that it was not possible to express any opinion on the rest of the items on the basis of the material at hand. Hence, it is clear that even the FSL Result has not supported the case of the prosecution against the accused Sushil Kumar and Yashpal. No opinion has been expressed on the alleged signatures of Mr. Rajwant Singh on his invitation letter which was allegedly forged by the complainant. Further there is not Expert opinion sought by the IO on the cumulative deposit receipts from the Oriental Bank of Commerce, Kapurthala and on the deposit receipt from the Punjab National Bank. Even the FSL Result has not supported the case of the prosecution.
14. Even otherwise, Counsel for accused has vehemently argued that the specimen signature's and the handwriting of accused Yashpal was not obtained by IO without permission of the court and hence the same should not be relied upon.
15. I find force in the contention raised by the Ld. Defence counsel. In this regard, reliance can be placed upon the Judgment passed by the Hon'ble Supreme Court in Sukhvinder Singh's case, 1994 Supreme Court Cases (Cri) FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 8 of 11 1376 and that by the Hon'ble Delhi High Court in Rakesh Kumar's Case, 2004 (1) JCC 111, relying upon the judgment pronounced by the Hon'ble Supreme Court in Sukhvinder Singh's case, the Hon'ble Delhi High Court in Rakesh Kumar's case held as follows:
17. "Moreover, the alleged specimen signatures / handwriting / thumb / finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the IO without prior permission from the Court. Facts in the case of Sukhvinder Singh and others Vs. State of Punjab (1994) 5 SCC 152, were that specimen handwriting of the appellant were taken under the directions of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused persons did not raise any objection thereto yet "Hon'ble Supreme Court observed that such specimen writing of the accused person could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime." In the present case the specimen signatures / writing / thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhvinder Singh (Supra).
Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (Supra) it follows that the specimen writing / thumb impression / finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert / finger print Bureau is thus rendered of no consequence at all and cannot be used to connect the FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 9 of 11 appellants with crime."
16. Furthermore, it is settled proposition of law that expert's opinion is not a conclusive proof of the validity of the handwriting or document in question in the absence of any independent corroboration. The report of handwriting expert is not included in the list of documents which can be accepted as valid evidence without examining the author as per the scheme of Section 293 Cr. PC. Even otherwise, the said specimen handwriting of the petitioner was obtained without the permission of the Court by the investigating agency. In Ram Chandra v. State of Uttar Pradesh AIR (1957) SC 381, 388 it was observed that "the expert evidence as to handwriting is 'opinion evidence' and it can rarely, if ever, take the place of substantive evidence. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR (1964) SC 529 it was observed that acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence.
In State of Gujarat v. Vinaya Chandra Chhota Lal Pathi Criminal Appeal No. 43 of 1964, it was held that "a court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in certain document merely on the basis of comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of Section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not." Hence, I am in agreement with the contention of the learned Counsel for the petitioner that the learned ASJ has gravely erred in not appreciating the fact that the opinion of an expert under Section 45 of the Indian FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 10 of 11 Evidence Act is merely an opinion and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration.
17. In the absence of the complainant, the testimony of other witnesses is all hearsay and in the circumstances of the present case, it is insufficient to prove guilt of the accused and cannot be relied upon to upheld conviction.
18. In view of the above discussions, the prosecution has totally failed to prove its case beyond reasonable doubts, both accused Sushil Kumar and Yashpal Singh hence stand acquitted. Their bail bonds stand cancelled. File be consigned to record room and be retained under rules as the accused Mastan was still PO.
(Announced in the open
Court on 23rd January, 2013 SUDESH KUMAR
Metropolitan Magistrate
New Delhi District
Patiala House Courts, Delhi
This judgment contains 11 pages and each paper is signed by me.
FIR NO.: 105 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/468/471/511 IPC 11 of 11