Delhi District Court
Sh. A.K. Srivastava vs Cbi (AcI) on 15 March, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Rev. No.200/13
1. Sh. A.K. Srivastava,
S/o Sh. S.P. Srivastava
2. Smt. Chandini Srivastava,
W/o Sh. A.K. Srivastava,
Both R/o : A137/A, Sector - 27,
Noida (U.P.). .......Petitioners
Versus
CBI (ACI), New Delhi. .......Respondent
Date of institution : 21.10.2013
Date of Judgment : 15.03.2014
J U D G M E N T
Present revision petition has been filed by petitioner no.1 and his wife, petitioner no.2, who are accused before Learned Chief Metropolitan Magistrate in Complaint No. RCACI2011A0001. In the said complaint, there are two other accused, namely, Sh. Bhushan Lal Bajaj and his wife Smt. Anita Bajaj.
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2. Vide impugned order dt.29.08.2013, Learned Trial Court has ordered for framing of charge for offences U/s 120B read with Sec.419, 466, 471 & 474 and for the offence U/s 471 IPC against petitioner no.1.
Vide same order, Learned Trial Court has observed that prima facie case for an offence U/s 120B read with Sec.419, 466, 471 & 474 IPC is made out against both the petitioners and their two coaccused; that prima facie case for an offence U/s 471 IPC against petitioner no.1; that prima facie case for the offences under Sec.419, 466, 471 & 474 IPC is against petitioner no.2.
3. Learned counsel for the petitioners has referred to decision in L. K. Advani v. Central Bureau of Investigation 1997 III AD (Delhi) 53 to point out that charges can be framed where Court finds that prosecution has shown a prima facie case against the accused and there is evidence capable of bearing converted into legal evidence, in the proceedings subsequent to the framing of charge.
Learned counsel for petitioners has submitted that this is a case where there is no evidence to connect petitioner no.1 - husband of petitioner no.2. It is further submitted that there was no meeting of minds between the two petitioners; that petitioner no.1 did not act as introducer 2 at the time of opening of the account; that there is no allegation that he forged any document in support of opening of the account; and as such, no prima facie case was made out against petitioner no.1.
As regards the two documents produced at the time of opening of the account, it has been submitted that same are photocopies. The contention is that only from the photocopies, prosecution wants to establish its case so as to attract provision of Section 420, 467 & 471 IPC, but this is a case where prosecution is not having any primary evidence. Further, it has been submitted that prosecution would not be able to lead any evidence to substantiate the charge for these thre offences i.e. U/s 467, 471 & 420 IPC and that learned Trial Court has erred in framing charge for these three offences against the petitioners.
4. Learned PP for CBI submits that since petitioner no.1 was accompanying his wife Smt. Chandini Srivastava at the time account opening form and two forged documents i.e. photocopies of PAN card and Election Icard were submitted to the bank officers, he can also be said to have used the forged document.
On behalf of prosecution, reference has also been made to the expert opinion dt.11.03.2011 to submit that the same confirms that 3 petitioner no.2 forged the signatures of Smt. Anita Bajaj. In this regard, reference has been made to the specimen writings of petitioner no.2 and specimen writings of coaccused Smt. Anita Bajaj obtained during investigation and the disputed signatures available on the account opening form, the agreement to obtain facility of locker and the signatures put in the relevant register maintained at the bank, to operate the locker.
5. Learned counsel for petitioners has submitted that no reliance can be placed on the opinion given by the expert, the reason being that there is no possibility of production of original PAN card and original election I Card, particularly when the same were not seized during investigation.
In support of this submission, learned counsel has referred to decision in V. Sujatha V. State of Kerala & Ors., 1995(2) C.C. Cases 18 (SC); Smt. Suvinder Kaur @ Shavinder Kaur v. State of Haryana 2003 (2) RCR (Criminal) 815 Hon'ble Punjab and Haryana High Court; Shashi Lata Khanna vs. State of Delhi & Ors. 2005 [2] JCC 1220;
In order to establish identity of petitioner no.1 as the person involved in commission of the crime in furtherance of common intention of his wife and petitioner no.2, Learned Public Prosecutor has relied on 4 statement of Ms. Rita Gupta Deputy Manager, State Bank of Maharashtra in whose presence the bank account was opened and the facility of locker was sought for.
Learned counsel for petitioners has submitted that the statement of Ms. Rita Gupta was recorded on 04.03.2011 whereas raid was conducted by CBI Officers on 25.02.2011, and since no Test Identification Proceedings were got conducted in accordance with law and without delay, it cannot be said as to who had opened the bank account. The contention is that prosecution would not be able to explain this delay on the point of identity of petitioner no.1 as the person who was accompanying petitioner no.2 at the time of opening of bank account and as such, it cannot be said that he is involved in commission of the crime. It has been submitted that possibility cannot be ruled out that Smt. Anita Bajaj herself might have opened the bank account and as such, no prima facie case is made out against the petitioners.
Another contention raised by learned counsel for petitioners is that this is a case where prosecution has not brought on record any material to suggest that petitioner no.2 had any dishonest intention or that her act was fraudulent. Therefore, the submission is that no prima facie case for 5 an offence U/s 467 IPC is made out against the petitioners.
Learned counsel has further submitted that at the most, it would amount to a case of furnishing false information to the bank, so as to attract provision of Sec.177 IPC, but added that the same would not help the prosecution at this stage, as there is no complaint U/s 195 Cr.P.C. In support of his contention, learned counsel has referred to decisions in Dr. Vimla vs. The Delhi Administration AIR 1963 Supreme Court 1572 (V 50 C 232); Dr. S. Dutt v. State of U. P. AIR 1966 SC 523; Amita Trivedi & Anr. V. State of Rajasthan & Anr., 2013 (1) Crimes 141 (Raj.).
6. Charge framed against the petitioner no.1 reads as under : "That during the period June, 2010 to February, 2011 at Delhi, you accused entered into criminal conspiracy with coaccused persons namely Bhushan Lal Bajaj, Chandini Srivastava and Anita Bajaj with object to dishonestly induce Bank of Maharashtra, UPSC, Shahjahan Road, New Delhi to open a Saving Bank Account NO.60045917165 and a locker no.127 in the name of Anita Bajaj on the basis of forged documents i.e. copy of forged PAN card bearing no.AECPB2918L and copy of Voter ID Card bearing no.ZYH0524421, in the name of coaccused Chandini Srivastava and false information and further, operating the said locker on various occasions by co accused Chandini Srivastava impersonating herself as Anita Bajaj. You also accompanied the coaccused Chandini Srivastava to the aforesaid bank for submission of abovementioned forged documents for the purpose of opening of bank account / locker. In this way, you thereby committed an offence punishable U/s 120B IPC r/w 419/466/471/474 IPC and within my cognizance.
6 That during the aforesaid period and place, you with coaccused Chandini Srivastava submitted Account Opening Application alongwith copies of aforesaid forged documents and thus, you fraudulently or dishonestly used forged documents as genuine one while knowing or having reason to believe the same to be forged documents and thereby committed an offence punishable U/s 471 IPC and within my cognizance."
Charge framed against the petitioner no.2 reads as under : "That during the period June, 2010 to February, 2011 at Delhi, you accused entered into Criminal conspiracy with coaccused persons namely A.K. Srivastava, Bhushan Lal Bajaj and Anita Bajaj with object to dishonestly induce Bank of Maharastra, UPSC, Shahjahan Road, New Delhi to open a Saving Bank Account No.60045917165 and a locker no.127 in the name of Anita Bajaj on the basis of forged documents i.e. copy of forged PAN card bearing no.AECPB2918L and copy of Voter ID Card bearing no.ZYH0524421, in the name of coaccused Anita Bajaj while affixing on it y our photograph and false information and further, you operated the said locker on various occasions by impersonating yourself as Anita Bajaj and thus thereby committed an offence punishable U/s 120 IPC r/w 419/466/471/474 IPC and within my cognizance.
That you, during the aforesaid period and place, impersonated yourself as Anita Bajaj and in th is way, dishonestly induced the Bank of Maharastra, UPSC, Shahjahan Road, New Delhi to open a Saving Bank Account No.60045917165 and a locker n o.127 on the basis of forged documents and false information and further, you operated the locker on various occasions and thus, cheated the bank and thereby committed an offence punishable U/s 419 IPC and within my cognizance.
That you caused PAN card bearing no.AECPB2918L and voter card bearing NO.ZYH0524421 purporting to be made by a public servant in his official capacity, forged by replacing your photograph in place of photograph of Anita Bajaj and thereby committed an offence punishable U/s 466 IPC and within my cognizance.
That during the aforesaid period and place, you with coaccused A.K. Srivastava submitted Account Opening Application alongwith copies of aforesaid forged documents and thus, you fraudulently or dishonestly used forged documents as genuine one while knowing or having reason to believe 7 the same to be forged documents and thereby committed an offence punishable U/s 471 IPC and within my cognizance.
That on 25.02.2011, during search of your handbag at aforesaid bank, you accused were found in possession of copy of voter ICard issued in the name of Anita Bajaj bearing your own photograph purporting to be made by a public servant in his official capacity knowing or having reason to believe the same to be forged with intent to use the same fraudulently or dishonestly as genuine and the said document falls under one of the description mentioned in Section 466 IPC and thus, you thereby committed an offence punishable U/s 474 IPC and within my cognizance."
7. Abhay Kumar Srivastava was ChairmancumManaging Director of NALCO (National Aluminum Company Ltd.). An information was received that Bhushan Lal Bajaj, coaccused of the petitioners was acting as a middle man for Abhay Kumar Srivastava to arrange bribe money by way of corrupt and illegal means from bidders / suppliers of NALCO and that the former was delivering money to him (A.K. Srivastava).
The information further was that Bhushan Lal Bajaj was having close liaison with G.S. Bhatia, CMD of Bhatia groups engaged in the trade of imported and indigenous coal with various private companies and Private Sector Undertakings (PSUs).
As per prosecution version, petitioner no.2 herein opened bank account no.60045917165 with Bank of Maharashtra, UPSC Branch, New Delhi by impersonating herself as Smt. Anita Bajaj wife of Sh. B.L. Bajaj. She is also alleged to have obtained facility of bank locker no.127 with 8 the said bank by impersonating herself as Smt. Anita Bajaj. In this regard, petitioner no.2 is alleged to have used photocopies of forged identity documents and also forged signatures of Smt. Anita Bajaj.
The allegation levelled by prosecution is that this locker was operated by petitioner no.2, benami in the name of Smt. Anita Bajaj.
During investigation, it was found that photocopies of Election I Card and PAN Card which were in the name of Smt. Anita Bajaj but having photograph of petitioner no.2, were submitted as documents in proof of identity of the account holder.
Further it is case of prosecution that petitioner no.1 himself was not accepting illegal gratification but he used to avail of services of his co accused B.L. Bajaj in this regard, the reason being that he was his friend and colleague in NTPC and thereafter, serving as Sr. Vice President with M/s Nagarjun Company and as sole arbitrator in one of the NALCO matters.
As per prosecution, investigation revealed that after obtaining the illegal gratification on behalf of petitioner no.1, B.L. Bajaj used to procure gold bars of 1 kg weight and the same were being kept in locker no.127 opened and operated by his wife (wife of petitioner no.1). 9
Landline phones and mobile phone of B.L. Bajaj were kept under technical surveillance w.e.f. 28.01.2011. The concerned intercepted call details were collected for the purpose of investigation. Further, it is case of prosecution that after registration of the case, trap was laid at Bank of Maharashtra, UPSC Branch and during trap, it was found that petitioner no.2 has operated the aforesaid no.127 and further that to have facility of this locker she had used forged documents which were in the name of coaccused Anita Bajaj.
8. As noticed above, case of the prosecution is that the documents were submitted to the bank at the time of opening of bank account and having facility of locker, by petitioner no. 2 wife of petitioner no. 1, while the husband and wife together appeared before Sh. C. K. Verma and then before Ms. Rita Gupta, the bank officers.
9. As to when a charge is required to be framed against an accused, In L. K. Advani v. Central Bureau of Investigation 1997 III AD (Delhi) 53, Hon'ble High Court observed as under: "(52). it is manifest from above that the charges can be framed against an accused person only in those discerning, few cases where the Court comes to the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charge.
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xxxxx xxxxx xxxxx In other words, the Court would be justified in framing the charges against an accused if the prosecution has shown the seed in the form of the incriminating material which has got the potential to develop itself into a full fledged tree of conviction later on."
10. Section 416 IPC defines "cheating by personation". It clearly provides that a person is said to cheat by personation if he cheats by pretending to be some other person or even by representing that he is a person other than he.
Herein, as is available from the statement of Ms. Rita Gupta, in whose presence account was opened and to whom the account opening form was submitted by Smt. Chandini Srivastava, the lady in attendance before her personated herself to be Smt. Anita Bajaj. The account opening form bears the name of the applicant as Smt. Anita Bajaj, but in the space meant for photograph of applicant it bears photograph of Smt. Chandini Srivastava. In the first column meant for signatures of the applicant, it bears signatures as 'A. Bajaj'. Even page no.3 of this form bears signatures of first applicant as 'A. Bajaj'. In the accompanying form meant for customer information of individual, name of the customer finds mentioned as Anita and her husband's name as Bhushan Lal Bajaj. This customer information form also bears signatures at relevant page 11 available at page no.3 as that of 'A. Bajaj'.
Photocopies of PAN card submitted with the aforesaid two forms would reveal that the name of the PAN card holder stands recorded as Anita with father's name Narendra Lal Puri and at the place meant for signatures of the holder, it bears signatures of 'A. Bajaj' but in the place meant for photograph, it bears photograph of Smt. Chandini.
Similarly, photocopy of election Icard reveals that it is in the name of Anita Bajaj W/o Bhushan Lal Bajaj but it bears photograph of Smt. Chandini Srivastava.
From the aforesaid material collected by CBI from the Bank and in view of the statement of Ms. Rita Gupta, officer of the Bank, wherein she stated that it is the lady, whose photograph is lying affixed on the account opening form, who put her signatures at the appropriate space in the form. It is also in her statement that the same lady put her signatures on the locker agreement form.
This locker agreement form bears the name of the party as Anita Bajaj and signatures as 'A. Bajaj' on its front and overleaf. Even if it is not in the statement of Ms. Rita Gupta that any other lady was also accompanying the aforesaid lady who signed the account opening form 12 and the locker agreement form and that she was accompanied by Sh. A.K. Srivastava, it is for the accused persons to explain as to how the documents prepared by a public servant in the name of the Smt. Anita Bajaj, came to be with Chandini Srivastava and her husband.
In K.R. Purushothaman V. State of Kerala, (2005) 12 SCC 631, (relied upon by learned counsel for petitioner himself), it has been held that to constitute a conspiracy meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition. Neither it is necessary that everyone of the conspirators takes active part in the commission of each & every conspiratorial acts. The agreement amongst conspirators can be inferred even by necessary implication.
Having regard to the provisions of Sec.466 IPC which also pertains to document purported to have been made by public servant in his official capacity and that herein photocopies of PAN card and election Icard, initially purported to have been issued by a public servant in his official capacity, in the name of Anita Bajaj, came to be forged, this court does not find any merit in the other contention raised by learned counsel that provisions of section 120B IPC read with Section 419, 466, 471 and 474 13 IPC are not attracted.
Having regard to the record of conversation on phone, collected by CBI, relationship between petitioner no. 1 and 2, and friendship between petitioner no. 1 and B. L. Bajaj, coaccused and relationship between between B. L. Bajaj and Smt. Anita Bajaj and they having entered into a criminal conspiracy, this Court finds that charge for an offence under Section 120B IPC read with Section 419, 466, 471 and 474 IPC, has been rightly framed against the petitioners.
11. In view of the material available on record, prima facie case for an offence under Section 471 IPC is made out against petitioner no. 2 on account of use of the two forged documents by her as genuine in opening the account and obtaining facility of locker.
As regards petitioner no. 1, this Court finds that on account of use of the two forged documents by his wife, at the aforesaid time, prima facie case for an offence under Section 471 read with Section 34 IPC is made out against him as he was present at the time his wife used the two forged documents in furtherance of common intention in opening the account and obtaining facility of locker, because his presence encouraged his wife in commission of the offence. In this regard, charge 14 framed by the Trial Court needs amendment so far as petitioner no. 1 is concerned.
12. As regards, the contention that this is a case where only photocopies of two documents are stated to have been forged and used as genuine and that its original being not available with the prosecution, this Court does not find any merit in it.
In V. Sujatha v. State of Kerela & Ors. 1995 (2) C. C. Cases 18 (SC), Hon'ble Apex Court observed as under: "The prosecution had a long distance to travel between "what may be true" and "what must be true". In the absence of the originals of Ex P9 and P 15 being produced at the trial, which as manyas for prosecution witnesses admit were available with the Customs, how could a case of forgery be built up on their photostat copies, punishable under Section 471 of the IPC and the sequel offence under Section 420 IPC? In our view the High Court over looked these important matters and rather oversimplified the issue." In Smt. Suvinder Kaur @ Shavinder Kaur v. State of Haryana 2003 (2) RCR (Criminal) 815 Hon'ble Punjab and Haryana High Court observed as under: "In any case as I have already observed above, in the facts and circumstances of the case, criminal liability cannot be fastened on the petitioner as the original certificate which is alleged to have been given or forged is not traceable. From the photocopy of the same no criminal liability, in the circumstances of the case, can be fastened on the petitioner. The signatures on the photostat copy of a certificate can be managed and manipulated by taking out copies several times and them compiling the certificate containing the signatures by joining the reproduction of the various 15 documents in a single form. Besides, in view of the fact that occurrence relates to the year 1985, no useful purpose would be served in continuing with the criminal prosecution. Consequently, the order dated 17.71990 passed by the learned Additional Sessions Judge, Kurukshetra, is set aside and the order dated 21.3.1989 of the learned trial Magistrate is restored." In Shashi Lata Khanna vs. State of Delhi & Ors. 2005 [2] JCC 1220, Hon'ble High Court observed as under: "6. In the case of K.V.R. Iyyanager vs. State of Andhra Pradesh 1988 (2) CRIMES VIII 882 it was held that in order to establish an offence of forgery under Section 463 IPC punishable under Section 465 IPC the presence of the original document before the court concerned is necessary. Copy or photostat copy is not sufficient in order to establish offence of forgery. In the present case also the original was never produced in that court nor it was proved in the court in accordance with law hence the offence of forgery of using the said forged document has not been proved. Once the offence of forgery is not proved there is no question of using the forged document as genuine. Accordingly, the accused persons cannot even by convicted under Section 465/468/471/120B of IPC."
13. So far as offence under Section 466 IPC is concerned, as noticed above order for framing of charge for this offence has been framed against Smt. Chandini Srivastava on the allegations that she forged the Voter card and PAN Card.
As per material collected by the CBI from the bank, the photograph of petitioner no. 2 Smt. Chandini Srivastava was placed over the photograph of Smt. Anita Bajaj available on her PAN Card and Election I card for the purpose of forgery of two documents. The term "fraudulently" 16 is wider than term "dishonestly". Herein, the object was to store gold stated to have been obtained with money collected by way of illegal gratifications, by her husband.
In the given circumstances, having regard to the criminal intent i.e. intend to defraud, relationship of the two petitioners, and that their act caused damaged to reputation of the bank and of the bank officers and this act having been done by them in furtherance of their common intention, prima facie case for an offence under Section 466 IPC is made out against petitioner no. 2 and prima facie for the same offence with the aid of Section 34 IPC is made out against petitioner no.1. In this regard charge needs to be amended so far as petitioner no. 1 is concerned.
In Dr. S. Dutt v. State of U. P. AIR 1966 SC 523, Hon'ble Apex Court observed as under: "14. In the light of above discussion we shall now see how the conduct of Dr. Dutt fits in with S. 471. The words "dishonestly" and "fraudulently" are used there. We have shown above that Dr. Dutt did not intend to cause wrongful gain to one person or wrongful loss to another person when he brought the diploma, whether forged or not, into Court. He was ordered to do so. He may have intended to deceive the Court, even as he intended that others should be deceived, into believing that he was a forensic expert (which perhaps he was not) and that he held a diploma from a recognised institution. He did not act dishonestly. The next question is whether he acted fraudulently, that is to say, with intent to defraud. His intention was not to cause any one to act to his disadvantage because he did not, therefore, have the intent to cause voluntarily, a course of conduct in any 17 person to that person's disadvantage. In other words, though he might have intended a deception he did not intend defrauding. His conduct was perhaps corrupt in the larger sense for he intended that the Sessions Judge should form an erroneous opinion about him, and his testimony, as he continued to claim the document as genuine.
15. We are therefore satisfied that Dr. Dutt's conduct does not come within S. 471."
In Dr. Vimla vs. The Delhi Administration AIR 1963 Supreme Court 1572 (V 50 C 232), Hon'ble Apex Court observed as under: "The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a noneconomic or nonpecuniary loss. A benefit of advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
Held that the accused certainly was guilty of deceit, for though her name was V she signed in all the relevant papers as N and made the insurance company believe that her name was her advantage or cause any noneconomic loss or injury to the insurance company. The charge did not disclose any such advantage or injury, nor was there any evidence to prove the same. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that it it was disclosed that N was a minor, the insurance company might not have paid the money. But the entire transaction was that of the accused and it was only put through in the name of her minor daughter N for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term."
Having regard to the peculiar facts of this case, decisions in Dr. S. Dutt's case (supra), Dr. Vimla's case (supra) and Amita Trivedi's case 18 (supra) do not come to the aid of the petitioners because the two decisions are distinguishable on facts.
14. As per decision in Sapan Halder & anr. vs. State 191 (2012) Delhi Law Times 225 (FB) cited by learned counsel for the petitioners, prior to the amendment vide which Magistrate has been empowered with reference to handwriting and signatures, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples.
Herein, learned Chief Metropolitan Magistrate has taken into consideration material other than the report of the expert as well. Therefore, this Court does not find any merit in the contention raised by learned counsel for the petitioners that no prima facie case is made out if the report of the expert is excluded from consideration.
15. As noticed above, photocopy of voter Icard initially issued in the name of Smt. Anita Bajaj with photograph of Smt. Chandini Srivastava affixed on it, was found in possession of Smt. Chandini Srivastava on 25.02.2011 during search/raid conducted by CBI team at the aforesaid bank, when she came out after having operated the locker. In the given circumstances, prima facie case for an offence under Section 474 IPC is 19 made out against petitioner no. 2.
16. In view of the above discussion, revision petition is disposed of with modification on the point of charge in the manner indicated above. Learned Chief Metropolitan Magistrate to amend the charge, as highlighted above, then record plea of the accusedpetitioners and proceed in accordance with law.
17. Trial Court record be returned. File of revision petition be consigned to Record Room.
18. Parties to appear before the Trial Court on 26.03.2014.
Announced in Open Court
on 15.03.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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