Delhi District Court
Bharat Kumar vs State (Nct Of Delhi) on 3 January, 2013
IN THE COURT OF SHRI RAJEEV BANSAL
ASJ-03 (SOUTH DISTRICT), SAKET COURTS
NEW DELHI
Criminal Revision No. 37/12
(Unique ID No. 02406R0244082012)
Bharat Kumar
S/o Sh. Satveer Singh
R/o H. NO. 10, Gali No.6,
D-Block, Brijpuri,
Wazirabad Road, Delhi. ..............Revisionist
Versus
State (NCT of Delhi) ...........Respondent
Date of Institution : 01.10.2012
Date of Pronouncement : 03.01.2013
ORDER
1. This Criminal Revision has been filed against the Order dated 10.9.2012, by which, the Ld. Trial Court decided to frame charge against the Revisionist u/s 420/467/468/471 IPC.
C.R. No. 37/12 "Bharat Kumar Vs. State" 1/9
2. The Trial Court's Record was summoned, which has been received and perused.
3. Record shows that FIR No. 43/09 was registered u/s 420/467/468/471 IPC on the written complaint dt. 4.2.2009 of Ms. Gargi Kaul, Director of National Rural Roads Development Agency wherein she stated that on 30.1.2009 it was noticed that cheque no. 972725 was missing from the cheque book and enquiries from HDFC Bank revealed that the said cheque was encashed by some P.K.Singh for a sum of Rs. 40,000/-. It was also stated in the complaint that CCTV video footage of the teller was seen and they suspect that one Bharat Kumar, an employee of a service provider M/s. G.A. Digital Web Word Pvt. Ltd. who was working with the complainant Agency since 13.1.2009, was involved. On this complaint, FIR was registered on 5.2.2009. Police made investigations and saw the footage of the CCTV and the accused/Revisionist was arrested. Rs. 32,000/- were found deposited in the account of the accused. After completion of investigation, charge sheet was filed and the ld. Trial Court vide its order dt.
C.R. No. 37/12 "Bharat Kumar Vs. State" 2/9 10.9.2012 directed framing of the charge u/s 420/467/468/471 IPC against the accused. Aggrieved by this Order, the present Revision has been preferred by the accused.
4. Grievance of the Revisionist/accused is legal in nature. It has been argued that the charges u/s 467, 468 and 471 IPC pertain to 'forgery'. It has been stated that the prosecution has relied upon the FSL report regarding the handwriting and signatures on the cheque in question, according to which, the date on the cheque, name of the payee 'P.K. Singh' and signatures on the back side of the cheque are of the accused. It has been stated that the handwriting and signatures of the accused were taken by the police while he was in custody but no such permission was taken by the IO from the concerned Court for taking specimen signatures and handwriting of the accused and due to this lapse of the investigation, the said FSL report cannot be looked into. Reliance has been placed on the Judgments in the case of Mohd. Yunus vs. State 2010 (2) JCC 1319 and Sapan Haldar vs. State 2012 (191) DLT 225. In sum and substance, it has been argued that since no permission C.R. No. 37/12 "Bharat Kumar Vs. State" 3/9 from the Court was obtained before taking sample signatures and handwriting of the accused, the FSL result based on such signatures and handwritings cannot be read against the accused and consequently, no charge u/s 467, 468 and 471 IPC can be found against the accused/Revisionist and hence the order of the Ld. Trial Court is vitiated.
5. On the other hand, Ld. Addl. PP has supported the impugned order.
6. I have heard both the sides and have perused the records of the case. Ld. Counsel for the Revisionist has not seriously challenged the charge u/s 420 IPC and hence the same is confirmed.
7. However, so far as the charge u/s 467, 468 and 471 IPC is concerned, they require that there has to be 'forgery' within the meaning of Section 465 IPC. Section 467 IPC relates to forging a valuable security or will etc. Section 468 IPC relates to forgery for the purpose of cheating. Section 471 IPC relates to using a forged document as a genuine document. In other C.R. No. 37/12 "Bharat Kumar Vs. State" 4/9 words, Section 467 IPC and 468 IPC relate to preparing a forged document whereas Section 471 IPC relates to using a forged document. The necessary corollary of this is that unless and until an accused is stated to have prepared the forged document, he cannot be charged with the offence under Section 467 IPC and Section 468 IPC. In the present case, on the strength of the FSL Report, prosecution has stated that the cheque in question had the handwriting and signatures of the accused, meaning thereby, that the accused/revisionist had prepared/forged the said cheque. Forgery on a valuable security can be proved from the handwriting or signatures of an accused on a document. Signatures or handwriting of an accused can be matched from the handwriting or signatures appearing on the document in question on which the said forgery is said to be committed. The said document in the present case is a cheque. It is noticed that as per the judgments relied upon by the Revisionist the investigating agency has no authority to take specimen signatures and handwriting of the accused of its own without seeking permission of the court. FSL Report is based on the specimen C.R. No. 37/12 "Bharat Kumar Vs. State" 5/9 signatures and handwriting of the revisionist which were taken without permission of the concerned court. Section 311 A of the Cr PC prescribes that during the course of investigation, a court can give permission for taking such specimen signatures and handwriting to the investigating agency. A perusal of the record shows that no such permission was ever sought by the investigating agency from the Court during the course of investigation nor any such permission was given. In such a situation when no such permission was sought from the Court, the FSL report which is based on such specimen signatures and handwriting - which were taken without the permission of the court, cannot be looked into, as the said FSL report has to be excluded from the arena of admissible evidence as was held in Mohd. Yunus's case (supra). For this reason, that the said specimen signatures and handwriting were taken without the permission of the concerned court, the same cannot be read in evidence at all. As such, no charge under Section 467 IPC & 468 IPC can be legally sustained against the accused/ revisionist.
C.R. No. 37/12 "Bharat Kumar Vs. State" 6/9
8. But so far as charge under Section 471 IPC is concerned, the same is a distinct offence. As noted earlier, this offence relates to using a forged document as a genuine document and does not deal with preparing a forged document. The complainant had stated in her complaint dated 04.02.2009 that the CCTV footage installed in the bank creates doubt on the revisionist/accused to be the person behind the encashing of the cheque in question. To the same effect is the statement of another witness R.K. Makkar recorded under Section 161 Cr.P.C. CCTV footage is on record. Prima facie, it shows that the revisionist had withdrawn money from the bank by using a cheque which was forged. Therefore, there is sufficient evidence to frame a charge under Section 471 IPC against the accused.
9. In the net result, this Criminal Revision is partly allowed. The order dated 10.09.2012 passed by the Ld. Trial Court is modified to the extent that the accused shall be liable to be charged under Section 420 IPC and 471 IPC only.
C.R. No. 37/12 "Bharat Kumar Vs. State" 7/9
10. Before parting, this court would like to bring on record the casual approach of investigating machinery in this case. Due to lapse of the investigating machinery, charges of preparing forged documents under Section 467 and 468 IPC cannot be framed against the accused. The Investigating Officers need to be told about the amendment in the Criminal Procedure Code by which Section 311A Cr.P.C was inserted with effect from 23.06.2006 by which permission can be sought from the Magistrate during the course of investigation for taking specimen signatures and handwriting of any person including an accused. This provision, being on statute book from 2006 onwards, ought to have been used in this case which arose in the year 2009. A copy of this order be sent to the Commissioner of Police for necessary remedial measures to be taken in future so that such lapses do not recur in investigation of cases involving preparation of forged documents.
11. TCR be returned back to the concerned court alongwith a copy of this Order.
C.R. No. 37/12 "Bharat Kumar Vs. State" 8/9
12. File be consigned to the Record Room.
Announced in the open Court. (RAJEEV BANSAL) Dated:03.01.2013 ASJ-3/SOUTH DISTT.
SAKET COURTS, NEW DELHI
C.R. No. 37/12 "Bharat Kumar Vs. State" 9/9