Delhi District Court
State vs . V.S. Sharma on 19 April, 2016
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST):
SAKET COURTS:NEW DELHI
State Vs. V.S. Sharma
FIR No. 353/86
U/s 408/420/468/471 IPC
P.S. G.K. 1
J U D G M E N T
Serial No. of the Case : 296/2/14
Unique Identification No. : 02406R0000941987
Date of Institution : 17.12.1987
Date on which case reserved for
judgment : 08.04.2016
Date of judgment : 19.04.2016
Name of the complainant : Sh. D.N.Tyagi
Administrator, Abhinav
Cooperative Group Housing
Society Ltd., Parliament
Street, New Delhi.
FIR No. 353/86
P.S. G.K.1 Page No.1 of 42
Date of the commission of offence : 26.09.1986
Name of accused : V.S. Sharma
s/o Sh. H.M. Sharma
r/o H. No. 122, Shivalik
Appartment Alakhnanda,
New Delhi.
Offence complained of : U/s 408/420/468/471 IPC
Offence charged of : U/s 408/420/468/471 IPC
Plea of the accused : Pleaded not guilty.
Final order : Convicted u/s 408/420 IPC
Date of Institution : 17.12.1987
Date on which case reserved
for judgment : 08.04.2016
Date of judgment : 19.04.2016
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint of complainant namely Sh. D.N. Tyagi being the FIR No. 353/86 P.S. G.K.1 Page No.2 of 42 Administrator, Abhinav Cooperative Group Housing Society, Ltd.(henceforth called the Society) dated 22.07.1986 wherein he had stated that the present complaint was for embezzlement and forgery into huge public funds deposited by the members and non members of the aforesaid Society. That the aforesaid Society being registered with the Cooperative Department vide registration no. 420 dated 19.12.1979 and was having an objective to provide flats to its members on the land allotted by DDA for its members. That on receipt of various complaints from its members and seeing the serious nature of financial irregularities on the part of the Managing Committee of the Society an inquiry u/s 55 was ordered by the Society and consequently its Managing Committee was super seeded by the Registrar Cooperative Societies vide order no. 2869 dated 02.03.1985 and Sh. R.S. Tyagi was appointed as Administrator u/s 32 of the Delhi Cooperative Societies Act.
That the complainant was appointed as Administrator vide order no. F47/420/GH/COOP/H/79505 dated 14.06.1985. Upon assuming the charge the previous Managing Committee of the Society did not hand over complete charge till 30.06.1985 and did not hand over books and records after 30.06.1983. Therefore, complainant invited claims from all its members on the basis of records available with the complainant and necessary public notice to all its members and notice were got published in the local FIR No. 353/86 P.S. G.K.1 Page No.3 of 42 newspaper. That out of 352 notices issued to its members, reply of 139 members and 10 non members were received. A difference of Rs. 9,02,852/ was found and this amount had not been accounted for in the books of account and maintained by the society and produced before the complainant.
That on the receipt of claims from members, documentary evidence furnished by the members and inquiries made in these cases came to the notice of the complainant that the Managing Director of the society had opened various bank accounts in Delhi in the name of the Society to embezzle the funds received from its members and non members. The office bearers of the society had collected bank drafts and cheques from its members and non members as share money, land money, etc. and embezzled the funds of the Society by withdrawing the same for their personal gains and even transfer the funds in the name of M/s Prakash and Company, 92, Nehru Place New Delhi. It was also brought to the notice of the complainant that another firm M/s Shiba Electronics Pvt. Ltd. previously having its office at A6, Ring Road, NDSE, Part1 ( R/o Sh. G.C. Jain, Ex Treasurer) of the Society and later shifted its office to K37D, Kailash Colony New Delhi ( R/o the alleged accused V.S. Sharma, Ex Secretary ) of the Society. Accused V.S. Sharma was reported to be the Managing Director and FIR No. 353/86 P.S. G.K.1 Page No.4 of 42 Sh. G.S. Jain, as Finance Director of the aforesaid firm and it was apprehended by the complainant that the funds of the society were being diverted illegally to the firm also. Subsequently the complainant received the statement of account of Canara Bank pertaining to the Ex Secretary ( photocopy of the bank statements were placed on record). It is further stated in the complaint that some of the bank accounts were not disclosed by the alleged accused V.S. Sharma being the Ex Secretary of the society and deposits and withdrawals were not accounted for in the books of accounts of the society. The amount withdrawn from the Bank Accounts were amounting to Rs. 10,96,849.60/. Further that the accounts were operated by President Sh. S.P. Jain, Secretary V.S. Sharma, A.P. Sharma and Treasurer Mahesh Kumar Gaur and G.C.Jain. Further that large amount belonging to the society were transfered to M/s Prakash and Company, 92, Nehru Place having their account with Dena Bank, Nehru Place and that accused V.S. Sharma was also having his personal account in the aforesaid bank. He has further stated that the accused being the Ex Secretary have not handed over the complete charge upto 30.06.1983 and no record and books after 30.06.1983 till the date of super session, also the photocopy of the receipts of handing over of charge to Ex Inquiry Officer Sh. J.C. Satija has been forged. Lastly, that the office bearers while opening accounts with Canara Bank, East of Kailash had FIR No. 353/86 P.S. G.K.1 Page No.5 of 42 submitted forged copy of resolution of the Managing committee dated 02.11.1982 which does not exists in the original proceeding register maintained by the society.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused under Section 408/420/468/471 IPC to which he pleaded not guilty and claimed trial.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as many as fourteen witnesses in order to prove its case.
PW1 SI Ram Prakash, deposed that on 26.09.1986 he was posted as Duty Officer and upon receiving complaint registered the present FIR vide Ex.PW1/A. PW2 M.G. Sehdeva, deposed that he was the Secretary of FIR No. 353/86 P.S. G.K.1 Page No.6 of 42 Abhinav Cooperative Housing Society Ltd., from September 1986 till 25.10.201993 and when he took over the charge, he ended over some records of the Society by the President of the said society and to the Administrator D.N. Tyagi. Upon going through the said records PW2 found that there was misappropriation of funds belonging to the Society. The said records were previously being maintained by the Managing committee of the Society and accused V.S. Sharma as he was responsible for the accounts along with other members of the Managing committee. A complaint in this regard was made and he found that two bank account in Dena Bank and Canara Bank, East of Kailash had been opened. The inquiry made by him revealed that accused had one account no. 2117 in Dena Bank, Nehru Place in the name of Abhinav Group Housing cooperative Society and this account was closed and a new account was opened in the same bank vide no. 2262 and the balance amount of the previous account was transferred to this new account. This is how there were two accounts in the said bank. Further there was one account in Dena Bank, East of Kailash having account no. 16293 in the name of the Society. There was no resolution passed by the Managing committee in regard to opening of these two accounts and even though there was a statuary requirements of such resolution being passed and signatories being appointed for operating the same, it was further revealed that money FIR No. 353/86 P.S. G.K.1 Page No.7 of 42 deposited in these three banks were being withdrawn and deposited in M/s Prakash and company of which accused Vinod Sharma's wife was the sole proprietor and accused V.S. Sharma had Power of Attorney to operate the said account. The accounts in the name of the society were opened in Dena Bank at the introduction of M/s Prakash and Company and the same were signed by the accused as being introducer. M/s Prakash and company was introduced to Dena Bank by one Exotica Export Wear Limited of which accused V.S. Sharma was Managing Director and his wife was one of the Director of the Society. A sum of Rs. 9 lakhs approximately was found deposited in the said account in these two accounts. The membership register of the society which shows that more than 350 members were enrolled even though the application of 149 members were submitted to the Authority. The photocopy of the said entry was Ex.PW2/A. Further, the entire minute books pertaining to the said society and the entire proceedings were Ex.PW2/B. During the crossexamination, PW2, stated, that he did not know as to when account no. 16293, 2117, 2263 were opened in the name of Abhinav cooperative Group Housing Society. Further that he has no knowledge as to when these accounts were opened and he was not the member of the Managing Committee when these accounts were opened. FIR No. 353/86 P.S. G.K.1 Page No.8 of 42 Further, he had made inquiries from the bank as to how these accounts were opened and he had not given any written letter for making inquiries about these accounts and vol. Stated that he had gone along with Assistant Registrar of the Society but he did not remember on which date he had gone. He could not tell if any person had made application for becoming member of the society before he joined as Honorary Secretary. Further he could not say if somebody had applied for membership before he was elected as the Honorary Secretary and did not remember the date of being elected as Honorary Secretary. Further he did not find any record to show that M/s Prakash and company was given contract to construct flats by the society. The minute book copy which he filed in the court was given to him by the Registrar of Cooperative Society office and he did not remember the name of the person who delivered the same to him. Further it was correct that there was the list of members who were defaulters in the society and he could not say whether the purchasers of stationery of the society were being made through S.P.Jain, the then President of the society. Further, he had not made any complaint in the court against the bank officials in respect to opening of the bank account in the name of Group Housing Society without complying with the statutory requirements of resolution of the society for opening the account. Further he came to know that the another fictitious account opened FIR No. 353/86 P.S. G.K.1 Page No.9 of 42 by the accused in the name of M/s Prakash and company in the month of September 1980 after looking at the account opening form Ex.PW2/X. He had not given any complaint against the bank to police. Further it was correct that Ex.PW2/X is not prepared and signed in his presence and the amount was neither deposited nor withdrawn in his presence as he had joined as Secretary. Further he had given the list of membership to the police.
PW3 Sh. D.N. Tyagi, Assistant Registrar Cooperative Society (complainant), deposed that in the year 1986 he was the Administrator of Abhinav cooperative housing Society Ltd. which was having its land allotment in Yamuna area. On 21.07.1986, he had lodged a complaint to the police containing 5 pages and it was in respect to embezzlement or forgery in the funds of the society by the office bearers of the Ex Managing Committee. The complaint made by him was Ex.PW3/A. He was appointed as the Administrator, Assistant Registrar of the Society in the year 1985 in the month of June. He conducted inquiries into the affairs of the society and submitted his report which is the complaint on the basis of which an FIR was registered.
During the crossexamination, PW3 stated, that the initial complaint which was made by the members of the society on the basis of which inquiry was initiated were in the office of the registrar and PW3 was not FIR No. 353/86 P.S. G.K.1 Page No.10 of 42 the inquiry officer but was an administrator of the society and his work was to manage the day to day affairs of the society. Accused V.S. Sharma who was the Secretary of the society and he did not remember the name of any other office bearer of the society. PW3 was not the member of the said society and he had attended only one General Body meeting which was relating to the election of the Managing committee but he did not remember the date of the same. Further he did not remember as to who was elected as the office bearers of the managing committee. Further, that after the same he never attended any meeting because he had handed over the entire record of the society to the Elected Managing committee of the said society. He did not remember the name of the person to whom he had handed over the record as, he did not possess any acknowledgment of the handing over of the records. Further that he had seen the office of registrar society, as the intimation of elected office bearers were being sent to the said office. He did not remember the exact date, month or year when the land was allotted to the society but probably in the year 1985 that was before the date of his appointment as Administrator of the said society. The land was allotted by DDA at Parparganj, adjacent to Malviya Nagar, and the total area of land allotted to the society by DDA was 2438 acres for 149 members. The documents regarding the same were with the society as he had retired and FIR No. 353/86 P.S. G.K.1 Page No.11 of 42 was no longer the Administrator of the society. Further that prior to him being appointed as Administrator he had no right to conduct any business of the aforesaid society, therefore he had not done any correspondence with the DDA on behalf of the society before his being appointed as Administrator. Further he did not know the amount paid by the society to the DDA for the land allotted to the society because the same were done prior to his appointment. Further no construction was raise on the said land, however he had taken over the charge of the land from DDA during his tenure as Administrator. Further he did not remember the date on which the charge of the land was given by DDA to him. Also that PW3 had been put under suspension for same period, but he did not remember from which date, month or year it was, but he was not suspended during his tenure as Administrator. Further he had recorded the statements of MC members and other members and had also invited claims from 352 members of the society which has revealed that there was a difference of more than Rs. 9 Lakhs which had not been accounted for in the books of accounts maintained by the society at that time. He did not remember the names of the persons whose statement he had recorded and that the same were with the society, but he did not remember to whom he had handed over the same. Lastly, that all the records were lying with the society. Also the society in question was superseded FIR No. 353/86 P.S. G.K.1 Page No.12 of 42 earlier in year 1985 and the first Administrator was appointed Registrar Cooperative Society and Sh. R.S. Tyagi was the first Administrator who continued to be Administrator in the same year after his transfer. Thereafter, PW3 was appointed as Administrator in his place in June 1985, and since the matter was old he could not say which documents were seized by him or proceedings were conducted by him.
PW4 M.K. Gaur, deposed that in the year 1984, he on the request of accused V.S. Sharma, (who was his cousin) became the treasurer of Abhinav Cooperative Society, but had not seen any accounts of the society. In the year 1986, PW4 received a letter from the Registrar of the Society wherein it was mentioned regarding the some financial irregularities in the accounts of the society. Thereafter, he had gone in the office of the Registrar of the Society and enquired and was told that some embezzlement of funds in the society had occurred and that accused V.S. Sharma, used to handle the entire accounts of the society. His statement was recorded by the police somewhere in the year 19861987. Further that he had signed two cheques of a very small amount around Rs 4,000/ or Rs. 5,000/ each had been counted for in the accounts of the society and except these two cheques no other cheque had been signed by him. All the bank transactions and accounts were maintained by the accused V.S. Sharma. FIR No. 353/86 P.S. G.K.1 Page No.13 of 42
During the crossexamination, PW4 stated, he was a business men and before this he was working as a computer engineer in the private company and he left his service voluntarily to start his own business. Further, that accused was his first cousin that is son of his real chacha. As far as he knows there was no dispute between the father or the father of the accused and he did not know if father of PW4 had grabbed the entire property after the death of his grand mother and it was correct that the proceedings of society dated 27.12.1979 bears his signature at point DX on Ex. PW4/DA. Similarly, PW4/DB, Ex. PW4/DC, Ex. PW4/DD, Ex. PW4/DE also bears his signature. Also proceedings recorded vide Ex. PW4/DF also bears his signature his signature. He do not remember if he was ever the General Secretary in the society. Further that he had been Treasurer society for the society in the earlier 1984 and he was authorized signatory of the account of society in Dena Bank, Nehru Place, which was opened on 14.03.1984. Further that he was not a authorized signatory of the society accused in Canara Bank, and that he had not signed any FDR on behalf of society in the sum of Rs. 80,000/ in the year 1984 as Treasurer. Further he had never signed any cheque except one or two which were in the amount of Rs. 400/ or Rs. 500/. It was correct that the society had purchased the plot of land from DDA, but he did not know the cost of the same and further he did FIR No. 353/86 P.S. G.K.1 Page No.14 of 42 not know if the payment were made in two installments of Rs. 2,75,000/ and the other of Rs. 8,14,229/. He was not aware that the second installment was paid while he was the Treasurer and was further not aware if the contract for construction of plot was given to any contractor. Further that he was still a member of the society and had no knowledge of the suit for recovery of Rs. 28.5 Lakhs had been filed before the Delhi High Court against the society of the Construction Company. He never protested any society meeting that he had not gone through the account of society and voluntarily stated that accused was his elder brother and therefore had signed in the proceedings of the society in good faith and Management Committee was dissolved by the Registrar of society during his tenure as a Treasurer and it was correct that documents were handed to one Sh. J.C. Satija, who was appointed as the enquiry officer and as far as he remember the same were handed to Sh. D. N. Tyagi. He did not know what documents were handed over but he had received two to three letters from Sh. D.N. Tyagi in this regard to enquire and he had allotted in presence before him to explain the matter. Further, that he had never appeared before the Enquiry Committee constituting Sh. J.C. Satija, Mr. Bhutani and Mr. Garg. Further that he had no knowledge if documents namely cash book, related voucher and leisure upto June 1984 were handed over to the enquiry officer and that he had never handed over FIR No. 353/86 P.S. G.K.1 Page No.15 of 42 any of the documents on behalf of society, nor did he handed over any documents of the Enquiry Officer. He did not remember if he had received any show cause notice issued by Joint Registrar, Cooperative Society along with 38 other officer bearers dated 21.03.1994. Later the witness again said that he had not received any such show cause notice. Further that at one time he use to reside at E8, G.K Enclave, New Delhi, which is the address mentioned in the show cause notice. He did not remember who was the Treasurer of the society before him and it was correct that a FIR was registered on the complaint of Sh. D.N. Taygi against him alongwith other office bearers of the said FIR in the present case.
PW5 Sukhdev Singh, deposed that on 20.07.1996 during his examination in chief that about 10 years back. Date he did not remember, he had gone to meet Ishwar Singh, ASI at C.R. Park, where he found three to four more persons sitting in the Chawki. The accused was also sitting and his specimen signature were taken in his presence and PW5 verified his signatures on the memo Ex. PW5/A, PW5/B, PW5/C and Ex. PW5/D. Specimen signature of other persons were also obtained but he did not know there identity and the specimen signature were also obtained on memos Ex. PW5/E to PW5/L. All the aforesaid exhibits also bears his signatures.
PW6 Sh. P.N. Gupta, GradeI, Inspector, Zone East, FIR No. 353/86 P.S. G.K.1 Page No.16 of 42 Registrar of Cooperative Societies Office, Parliament Street, New Delhi, deposed that he was working in the aforesaid capacity and that he had brought the summoned record and the order dated 14.06.1985 bearing No. H79505 was Ex. PW6/A and the registration of society No. 420 dated 19.12.1979 was Ex. PW6/B. The order No. 2868 dated 02.03.1985 was Ex. PW6/C. The enquiry report of enquiry conducted by Sh. J.C. Satiaj dated 13.11.1984 was Ex.PW6/D. Further that later, he was working in the Education Department and thereafter could not bring other relevant enquiry record of Sh. K.K. Garg, Assistant Registrar, Cooperative Societies and that only concerned Inspector of the Cooperative Society would bring the record.
During the crossexamination, PW6 stated, that the enquiry was not conducted by him and not in his presence by Sh. J.C. Satija and K.K. Garg. Further that he had joined to the society in August 1996 and was transfered from there in August 1997 and lastly that he had no personal knowledge about these enquiries.
PW7 Gyan Chand Jain deposed that he was the exTreasurer of the Society. He was chosen as Treasurer by the members of the Society on 04.05.1982. Since the earlier Treasurer, whose name he did not remember had not handed over the account and cheque books of the Society and other records, he wrote a letter to the Secretary, accused V. S. Sharma, FIR No. 353/86 P.S. G.K.1 Page No.17 of 42 and to the President Sh. S. P. Jain, demanding the records, as in its absence he would not be responsible for any lapse regarding funds of the society. He did not receive any reply for these letters. The society was operating only on one account in Canara Bank, Nehru Place Branch. He was introduced regarding this account by V. S. Sharma, who was the Secretary of the Society. There were other accounts opened by Mr. V. S. Sharma fraudulently in the name of the Society in Canara Bank, East of Kailash Branch and also at Dena Bank, Nehru Place Branch. Name of PW7 and Mr. S.P. Jain were figuring in the opening those accounts i.e. when he had never signed on those accounts. The money was fraudulently collected from the members of the Society and the cheques deposited in these two accounts and from where money was transfered to M/s. Prakash & Companies account, which was under the proprietorship of Mrs. Vinod Sharma s/o Sh. V. S. Sharma. Money in this account of the company was then withdrawn by accused V. S. Sharma being the attorney of the account. Regarding the account of the society in Canara Bank, Nehru Place Branch, he had signed only four cheques, one was of Rs.8,40,000/ approximately and second for Rs.2,16,000/ to make the draft for DDA and to deposit the money for the land price alloted to the Society and the third cheque was signed for Rs.6,000/ to refund to a member of the society on the fourth cheque was for Rs.215/ to pay of petty expenses. FIR No. 353/86 P.S. G.K.1 Page No.18 of 42 He gave specimen signatures to the police vide Ex.PW5/H. Except these four cheques mentioned above, he did not sign on any other cheque for withdrawal of the money from the Society. His signatures on the account opening form of Dena Bank, Nehru Place Branch at Q22 have been fraudulently placed or made in the document Ex.PW7/A. The copy of resolution dated 01.09.1983 of the Cooperative Society bears the signatures of PW7 in original, having been shown to be made at Q26 on Ex.PW7/B have also been fraudulently made. The photocopy of the cheque (MarkB) also bears his forged signatures, which shows an amount of Rs.37,000/, who have been shown payable to M/s. Prakash & Company. The photocopy of the cheque (MarkB1) for an amount of Rs.8,000/ payable to M/s. Prakash & Company also bears his forged signatures as Tresurer and another cheque (MarkB2) of Rs.5,000/ of Canara Bank, East of Kailash, payable to self, bears his forged signatures as Tresurer. Further documents (MarkB3 to B13) all bear his forged signatures and the same have not been signed by him. The photocopy of the minutes of the meeting of the Society (Ex.PW2/B) dated 09th in year 1982 is also not signed by him.
During the crossexamination, PW7 stated that police recorded his statement during the course of investigation and he had stated in his statement before the Police that he wrote a letter to the Secretary, V. S. FIR No. 353/86 P.S. G.K.1 Page No.19 of 42 Sharma on 20.07.1982, wherein he requested to produce the concerned record (the witness was confronted on this aspect from pointA to A, wherein it was not so mentioned in document Ex.PW7/DA). Further that he had no record to show that accused V. S. Sharma opened any account fraudulently and it was correct that at the time of opening the bank account, the person in whose name the account is opened has to be present in person and give specimen signatures in the bank. He came to know that his signatures were forged in the bank account only when police told him regarding the same in the month of June 1997. Thereafter, he gave his specimen signatures to the police, but he could not give any date, time or year of withdrawal of money by the accused from the account of M/s. Prakash and company. Further that he never saw the accused withdrawing money from the account of the company. He did not know the exact date, but it was in the year 19831984 that the money had fraudulently collected from the members of the Society, but he did not know from whom the money was collected fraudulently, as he did not have any record of the Society. Further that he had no knowledge that the society advertise in the newspaper to appoint contractor for carrying out constructions of the flats of the society or if several companies including M/s. Prakash & Company had applied for the contract and he did not know, if M/s. Prakash & Company was registered with Central Government Contractor, FIR No. 353/86 P.S. G.K.1 Page No.20 of 42 ClassI and he did not know that the constructions of the flats were carried out by M/s. Prakash & Company, upon being appointed as contractors. He did not know that the payment was made to the company by the Society for construction work by the cheque and he did not know, if the SubCommittee consisting of Engineers certified that the work done and thereafter payment was made. He did not know, if some members were defaulters. An account of the Society was opened with Canara Bank, East of Kailash and Dena Bank, Nehru Place Branch with his forged signatures and he did not know, if the other signatures were of P. D. Sharma, A. B. Sharma and S. P. Jain. He did not know as to who was the cashier of the Society in the year 1983, 1984 or 1985. Further that he did not know, if the Delhi Cooperative Society Act was applicable in the year 1982. He did not receive any reply from J. P. Jain, President in respect to his letter and he did not know, if he had ever seen the original minutes of the meeting of the Society dated 9 th in the year 1982. The cheques were never issued to M/s. Prakash & Company.
PW8 S. K. Mehta deposed that he was the Branch Manager, Canara Bank in the year 1987. At that time a Police Officer from GK had come to inquire regarding fraud committed in the saving bank account of the Society. The Ledger sheets were taken out to seal the operations i.e. the withdrawal and the cheques used by the officer bearers to draw the amount. FIR No. 353/86 P.S. G.K.1 Page No.21 of 42 Upon perusing the account opening form register, it was observed to be missing. However, the specimen signature cards of S. P. Jain and Mrs. Sharma were handed over to the police officers alongwith cheque and also a photocopy of the ledger sheet. The seizure memo of the cheques sealed by the police were exhibited as Ex.PW8/A and bears the signatures of PW8 at pointA. The specimen signature cards were of S. P. Jain, President G. C. Jain, Treasurer A. P. Sharma and Secretary. The same were Ex.PA, PB and Ex.PC. The official records brought by the Record Clerk were seen and the cheque bearing number 732334 was Ex.PD and another cheque was Ex.PE to Ex.PI. The application for draft was Ex.PJ, which was handed over by PW8 to the police officials. He had also handed over a copy of the statement of account of the society in his branch and the same were Ex.PK to Ex.PL, which relates to the period from 04.11.1982 to June, 1985. The signature on the cheque tallied with the specimen signatures lodged with the bank and the cheques in question were PD to PI. Further that these cheques submitted by PW8 to the police officials were presented for clearing to Dena Bank, Nehru Place for the account of M/s. Prakash & Company. There were some cash amount also withdrawn by 'self' payment through these cheques.
During the crossexamination, PW8 stated that whenever any account was opened in the Bank as a procedure, the account opening form is FIR No. 353/86 P.S. G.K.1 Page No.22 of 42 filled and signed by the persons, who are opening the account in the Bank alongwith specimen signature card. The specimen signature card is verified by the bank officials, but he did not know, who was working in the said capacity at the time of opening of the aforesaid account. In the case of individual, introduction of th person, opening the account by some person known to the bank and party is also necessary. In the present matter the account opening form was not available in the records and the account was not open in his presence. Similarly, the specimen signature card was also not signed in his presence and the ledger was also not operated by him. Further the application for draft Ex.PJ was also not written in his presence and the statement of account was not in his hand and the entries in the ledger were not made by him. Lastly, the cheques were not signed by the signatory nor they were presented for encashment in his presence.
PW9 J. C. Satija deposed that on 04.05.1983, he was posted as Inspector in Cooperative Society. On that day, he was appointed as Enquiry Officer U/s 55 of Delhi Cooperative Society to enquire into the matter of Abhinav Cooperative Group Housing Society, for the enquiry of matters pertaining to enrollment of membership of Society, election of the managing committee, utilization of the funds. He made an enquiry thoroughly in respect to the record of the society produced before him and submitted hiss enquiry FIR No. 353/86 P.S. G.K.1 Page No.23 of 42 report Ex. PW9/A. The whole report had been prepared by him carefully and cautiously.
During the crossexamination, PW9 stated, that he did not record the statement of any person during the course of enquiry. The documents on the basis of which he had given the enquiry report were not brought by him to the Court. Further the documents which were perused were not with him and he did not possess any certificate in respect to the same. He never participated in the meeting of the society and was never present at the time of the election of the members of the society.
PW10 S.P. Sharma, SubInspector, Office of the Registrar of Cooperative Society deposed that he was working in the aforesaid office and had the original record in respect to the enquiry conducted U/s 59 of the Delhi Cooperative Society. The said enquiry of the society was conducted by K.K Garg (who had retired and his whereabouts were not known) The copy of the same was Ex. PW10/A. The original record, order no. 2868 dated 02.03.1995 was Ex. PW10/B. During the crossexamination, PW10 stated, that it was correct that the enquiry was conducted in his presence and he could not say if Sh. K.K. Garg was drawing pension or not. It was correct that Mr. K.K. Garg, was not contacted after receiving the summons and that he had no personal FIR No. 353/86 P.S. G.K.1 Page No.24 of 42 knowledge of the facts of the enquiry.
PW11 Shiv Shankar Sharma, (Manager Dena Bank, Nehru Place) deposed that he was working as Manager in Dena Bank, Nehru Place and had brought the record of account no. 2117 and 2262 in the name of Abhinav Cooperative Group Housing Society Ltd. and that of Prakash and Company was not available in the Bank record. The certificate / letter was Ex. PW11/A given by the chief manager.
During the crossexamination, PW11 stated, it was correct that the abovesaid record was not destroyed in his presence and that there was no such order to destroy the aforesaid record. However, there were Head Office Guidelines to destroy the record from time to time and the same were circulated in the Head Office. No such circular was brought by him to the Court and that he had no personal knowledge about the aforesaid account.
PW12 Sanat Paul, Joint Secretary, Ministry of Civil Aviation, Rajeev Gandhi Bhawan, Safdarjung Airport, deposed that on 30.04.1985, he was posted as Registrar Cooperative Society. On that day, he passed an order number F47/420/Gazetted/Coop/H/79/124125 dated 30.04.1985 to the effect that the enquiry of the society U/s 55 of the Delhi Cooperative Society Act, 1972 was to be conducted by S.P. Bhutani, SI regarding the working (institution, financial position of the said society). By FIR No. 353/86 P.S. G.K.1 Page No.25 of 42 this order he had directed the enquiry officer to submit the enquiry report within one month in the order was Ex. PW12/A. Further, on 14.06.1985, he was posted on the same post and place and therefore passed an order F47/420/(J)/Coop/H/79 dated 14.06.1985. To which PW12 approached M.D. Tyagi, Assistant Registrar as Administrator, of the Society in the place of Sh. R.S. Tyagi and the copy of the order was Ex. PW12/B. During the crossexamination, PW12 stated, that he had appointed Mr. Bhutani, as an enquiry officer on 30.06.1985 and he cannot recall if the enquiry was conducted by Mr. Bhutani. PW12 could not recall of changing the enquiry officer. The qualifications were approved and stated by the Administration of the Society, which stated that the person should be an Officer under the Registrar Cooperative Society or an Officer of the Delhi Government. Beside Delhi Cooperative Act and rules too did not provide or led out any qualification for appointment of an administrator of the Cooperative Society, after its management had been superseded. However, no process of law and leaving the discretion to the society. He could not say without looking at the record, the exact date or approximate date of the Super session of the Society and he could not recall if Sh. R.S. Tyagi had submitted any enquiry report in respect to the society. He did not know if D.N. Tyagi was inimical towards the accused.
FIR No. 353/86 P.S. G.K.1 Page No.26 of 42
PW13 Inspector Kailash Chand, deposed that in the year 1986, upon receiving complaint of Mr. D.N. Tyagi, Administrator, Abhinav Group Housing Society, he made an endorsement Ex. PW13/A and got the present FIR registered. During investigation, he contacted the various Banks. The Bank Account No. 16293, Canara Bank, East of Kailash, and Bank Account No. 2117 and 2262 Dena Bank, Nehru Place and Bank Account No. 7706, Canara Bank, East of Kailash, were collected. All these accounts were opened by the office bearers of Abhinav Group Housing Society. During investigation, it was revealed that account No. 16293, Canara Bank, East of Kailash, were opened by the office bearers of the society in the year 1992 and total amount of about Rs. 7,68000/ was deposited and Rs. 765000/ was withdrawn by 17 cheques. An amount by means of cheque were transfered to M/s Aakash and Company and six were withdrawn by himself and one cheque was given to another person. In that account no. 2177, Dena Bank, Nehru Place, about 04 Lakhs were deposited in the Bank Account by cheque, by member of society and out of this an amount of Rs. 3,12000/ was transfered in the account of Prakash and Company and in bank account no. 2262. Rs. 10,000/ were deposited in account no. 7706, Canara Bank, Nehru Place. Total amount of Rs. 14 Lakhs was deposited in the Bank Account by the office bearers of the society and out of this an amount of Rs. 8 Lakhs FIR No. 353/86 P.S. G.K.1 Page No.27 of 42 were given to DDA and other amount were used by the office bearers as expenses of the society. During investigation it came to the notice that the bank account no. 7706, Canara Bank, Nehru Place, was the genuine one and the amount of this account number was used in the genuine expenditure of the society and in other accounts with Canara Bank, East of Kailash, i.e. Account Number 16293 and 2117, Dena Ban, Nehru Place and account number 2262, Dena Bank, Nehru Place, in these accounts the amount deposited were either transfered to M/s Prakash and Company and the Prakash and Company was related to accused V.S. Sharma, who was the honorary secretary of the society and had its account in Dena Bank, Nehru Place. During investigation, the documents were seized from the banks, and the statement of the Bank Officers were also recorded. Further he recorded the statement of the concerned witnesses, officer bearers of the society. In account number 16293 the account opening form and resolution of society were seized and cheque weer also seized and after obtaining samples handwriting of officer bearers , the same were sent to FSL for examination. The report was collected. Finally, it came to the notice that only account number 7706, Canara Bank, Nehru Place, was genuine and other accounts were opened with fraudulent intention and to cheat the public at large. During investigation it came to the notice that the money out of these accounts were FIR No. 353/86 P.S. G.K.1 Page No.28 of 42 transfered to M/s Prakash and Company and the proprietor of the company was accused V.S. Sharma, (correctly identified by the witness). After collecting the evidence accused was arrested and charge sheet was filed. The seizure memo of the cheque was Ex. PW8/A and the specimen signatures of A.P. Sharma were Ex. PW5/E. The specimen signature of Gyan Chand were Ex. PW5/H and of S.P. Jain were Ex. PW5/I. The specimen signature of V.S. Sharma, were Ex. PW5/A. During the crossexamination, PW13 stated, that no complaint was received from the office bearer of the society, nor any complaint was made by any member. No agreement with M/s Prakash and Company was placed before him during course of investigation and that the account in question was not opened in his presence., nor any money was withdrawn in his presence. The account opening form and leisures were not produced by the Bank Authorities in respect to account of Canara Bank and Dena Bank, Nehru Place, he did not know if there was any contract of building of the society with Prakash and Company and he did not know if Prakash and Company had conducted digging of foundation and construction on the property of the society. Further that PW13 did not seize any correspondence between the society and Prakash and Company. It was correct that Sh. S.P. Jain, was the president and Sh. G.C. Jain, was the treasurer and accused FIR No. 353/86 P.S. G.K.1 Page No.29 of 42 V.S. Sharma, was honorary general secretary of the society. He did not know if Shyaam Saxena, was the Manager and authorized signatory of M/s Prakash and Company and that he did not collect any document to show as to who were the members / director or owner of the company. Further that he did not know as to who was the Administrator prior to Sh. D.N. Tyagi and he had no knowledge if prior to Sh. D.N. Tyagi there was another administrator. Also that Sh. K.K. Garg and Sh. J.C. Satija were the Inquiry Officers. He did not remember if any member of the society had made any statement during the investigation and also did not know as to who had appeared as witnesses during the inquiry. Also that the society did not handover the record of statements of the members of the society and the members were not produced before him by the Inquiry Officer or the administrator for making statement in this connection during investigation. The Treasurer was Sh. Gyan Chand Jain and it was correct that the bank account could not be operated by the accused persons without signatures of the treasurer or other authorized signatory and also that the society had deposited money towards the cost of the plot alloted to the society. The complete proceedings of the society were not produced before him through out the investigation and it was correct that at the time of opening of second account number 2262 in Dena Bank, the first account was closed as the FIR No. 353/86 P.S. G.K.1 Page No.30 of 42 treasurer was changed and Sh. Mahesh Kumar Gaur was the new treasurer. The entire amount of first account was transferred to the new account of the bank. Lastly, he did not know if D.N. Tyagi was also arrested in a corruption case.
PW14 Sh. V.K. Khanna (Scientific Officer, FSL) deposed that he had retired as Principal Scientific Officer and Incharge Documents Division, Central Forensic Science Laboratory, CBI on 30.11.07. He had Msc. in Chemistry and took his post graduation decree from University of Rajasthan, Jaipur. Further that he had given report in about 2300 cases and had examined about 1 lac exhibits of various crimes. In the present matter, some documents were submitted for examination and for opinion these documents were carefully examined by him with scientific aids and therefore he arrived at the conclusion that the question Hindi signatures mark Q2 on Ex.PB, Q5 on Ex.PW14/A1, Q7 on Ex.PW14/A2, Q9 on Ex.PW14/A3, Q11 on Ex.PW14/A4, Q13 on Ex.PW14/A5, Q15 on Ex. PW14/A6, Q18 on Ex.PW14/A7, Q22 on Ex.PW7/A, Q26 on Ex.PW7/B could not be connected with the specimen Hindi signatures marked as S4 on Ex.PW5/H due to the reason given in detail in his report Ex.PW14/B, bears my signatures at point A, which contains three pages alongwith a forwarding letter signed by Director, CBI, CFSL, New Delhi at point A on Ex.PW14/C. The questioned FIR No. 353/86 P.S. G.K.1 Page No.31 of 42 English signatures marked Q1 on Ex.PA, Q12 on Ex.PW14/A5, A17 on Ex.PW14/A7, A20 on Ex.PW7/A and Q24 on Ex.PW7/B could not be connected with the specimen English signatures marked as S5 on Ex.PW5/I due to the reasons given in detail in my report Ex.PW14/B. The questioned English signatures marked Q3 on Ex.PC, Q4 on Ex.PW14/A1, Q6 on Ex.PW14/A2, Q8 on Ex.PW14/A3, Q10 on Ex.PW14/A4, Q14 on Ex.PW14/A6 and Q16 on Ex.PW14/A8 could not be connected with the specimen signatures mark S1 on Ex.PW5/E due to the reasons given in detail in my report Ex.PW14/B. It was not possible to express any opinion regarding the authorship of the questioned English signatures mark Q19 on Ex.PW14/A7, Q21 and Q23 both on Ex.PW7/A, Q25 on Ex.PW7/B, Q27, Q28 both on Ex.PW14/A9 and Q30 on Ex.PW14/A10. In comparison with the specimen English signatures mark S12 on Ex.PW5/D and due to the reasons mentioned in detail in my report Ex.PW14/B. The questioned English signatures mark Q29 on Ex.PW14/A9 could not be connected with the specimen English signatures marked S5 on Ex.PW5/I due to the reasons given in detail in his report. Further that his report was correct.
Opportunity to cross examine the witness was granted to the accused but they did not question anything to the witness.
5. After completion of the prosecution evidence, prosecution FIR No. 353/86 P.S. G.K.1 Page No.32 of 42 evidence was closed and statement of the accused as mandated by Section 313 r/w 281 Cr.P.C was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. Three defence witnesses were examined on behalf of the accused.
7. DW1 Sh. Raj Kumar, Clerk from Canara Bank had deposed that he had proved the documents in connection with savings account no. 0268101016293 of Canara Bank, East of Kailash, New Delhi. He had also produced the statement of account of savings account no.0268101016293 and photocopy of the documents which were given to police authorities on 08.08.85. The receipt regarding handing over the statement of account and signature card to police authority is Ex.DW1/A. Also that he had brought the statement of account no.0268101003916 of Mr. A.P. Sharma, photocopy of first account opening form and photocopy of specimen signature card are Ex.DW1/B to Ex.DW1/D. Further he had brought the statement of account No.16293 from 04.02.2002 to 07.06.2008 and account no.3196 from 04.02.2002 to 07.06.2008. These account statements were duly signed by Sh. S.S. Mehra, Manager, Canara Bank, East of Kailash. These documents FIR No. 353/86 P.S. G.K.1 Page No.33 of 42 were marked as Ex.DW1/A and Ex.DW1/B. Further there were no other documents available with the bank and other documents had already been submitted.
During the crossexamination by Ld. APP for the State, DW1 stated that account number 16293 was in the name of Abinash and it is also mentioned on Ex.DW1/A at point B. Further that he had not brought the account opening form and other relative account forms of account no.16293 as the same had already been submitted to the police. The witness points out to a document Ex.DW1/A which he had not brought the original to prove the claim that account opening form and other relative documents were handed over to the police. He voluntarily stated that the photocopy of document Ex.DW1/A was obtained from the book of account opening form and the same book of bank when perused was found that the photocopy of the document Ex.DW1/A was in between account no.16294 and 16295. It was correct that the said document was neither executed in his presence and nor was made part of this book in his presence. Further that he had not brought any authorization of the bank to depose before the Court and that account no. 3916 and the statement of account of which is Ex.DW1/B was in the name of Sh. A.P. Sharma opened on 18.10.1976. The account opening form was Ex.DW1/C and it was correct that the form opening account with the bank FIR No. 353/86 P.S. G.K.1 Page No.34 of 42 introduction by either existing bank officers was mandatory and it was further correct that Ex.DW1/C does not mention about any such introduction and further that he had not brought the original of the same. The said account was to be operated by Sh. A.P. Sharma only.
8. DW2 Rafi Haider, Officer of Dena Bank deposed that as per their record, there was no account No.2117 and 2262 in the name of M/s Abhinav Cooperative Group Housing Society Ltd. with their branch since 1999.
Further opportunity to examine DW2 was dismissed as accused has sought many adjournments.
9. DW3 Sh. S.K. Sharma deposed that he knew the accused being his friend for past 3035 years. Further that accused was only General Secretary of the Abhinav Cooperative Group Housing Society Ltd. and that he was the member of the society till the year 1987 i.e. when he was transferred to Kolkata. From Kolkata, he resigned from the membership of the society and thereafter he has no knowledge regarding the affairs of the society. Further that accused V.S. Sharma had done the good work for the society for land allocation. Further that he was not allotted any flat in the society. FIR No. 353/86 P.S. G.K.1 Page No.35 of 42
During the crossexamination by Ld. APP for the State, DW3 stated that he did not know anything about the criminal case pending against the accused. That he was not aware about the embezzlement or cheating committed by accused V.S. Sharma during the year/period of his membership.
10. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 408 IPC :
Criminal breach of trust by clerk or servant Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect ;of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
As per Section 420 IPC:
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.FIR No. 353/86 P.S. G.K.1 Page No.36 of 42
As per Section 468 IPC :
Forgery for purpose of cheating--Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
As per Section 471 IPC:
Using as genuine a forged document--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record forged] which he knows or has reason to believe to be a forged [document or electronic record forged], shall be punished in the same manner as if he had forged such [document or electronic record forged]
11. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that the accused with dishonest intention and by using forged documents committed the offence of cheating and caused wrongful loss to the society created for the purpose of benefit to its members.
Ld. APP for the State further argued that in the present matter all the witnesses examined by the prosecution have corroborated the story of prosecution and the guilt of the accused is proved beyond reasonable doubt and therefore, he is liable to be convicted.
FIR No. 353/86 P.S. G.K.1 Page No.37 of 42
12. On the other hand, the Ld. counsel for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses in their crossexamination has deposed contrary to each other and there is no corroboration in the story of prosecution. Further, he has argued that in the present matter there is no evidence on record against the accused as the original account opening form could not be produced and the accused did not commit any offence and the amount was credited to the account of the accused since he was given the contract for construction on the land in question and therefore, he is liable to be acquitted.
13. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
14. In the present matter prosecution examined as many as fourteen witnesses to prove the offence charged against the accused.
PW1 is the formal witness as he was the duty officer who registered the present FIR on receiving the complaint.
PW2 was the Secretary of Abhinav Cooperative Housing FIR No. 353/86 P.S. G.K.1 Page No.38 of 42 Society from September 1986 to 25.10.1993. He has deposed that during his tenure, at the time of taking charge he was handed over some records of the society by the President of Society namely D.N. Tyagi (complainant) and upon receiving the record he found that there was misappropriation of funds of the society, which was maintained by accused V.S. Sharma being responsible for management of accounts of society and being the member of the Managing Committee. He has also deposed that he found that there was two bank accounts one at Canara Bank and other at Dena Bank which was opened by the accused after the original account of the society was closed and even transfered the balance amount of the society to the aforesaid two new accounts without any resolution. He has further deposed that the amounts deposited in the aforesaid account was withdrawn in the name of M/s. Prakash and Company which was owned by the wife of the accused and the accused being the power of attorney to operate the same. Further that the aforesaid accounts were opened by the accused being the introducer of account holder M/s. Prakash and Company and Exotica Exports Wear Limited where the accused was a Managing Director and embezzled the amount of Rs. 9,00,000/. The entries in respect to the amount was EX.PW2/A to EX.PW2/C. During cross examination no contradiction could be pointed out.
FIR No. 353/86 P.S. G.K.1 Page No.39 of 42
PW3 D.N. Tyagi being the complainant and being the administrator of the society deposed that the land was alloted to the society by DDA and thereafter reiterated the facts of this complaint and supported the story of prosecution.
PW4 N.K.Gaur deposed that he was the treasurer of the society in the year 1984 and deposed that at that time accounts of the society and all bank transactions were carried out by the accused V.S. Sharma and that he was also relative of the accused.
PW5 Shukhdev Singh was the formal witness and deposed that the specimen signatures of the accused was taken in his presence vide EX.PW5/A to EX.PW5/L. PW6 P.N. Gupta was the inspector from registrar of cooperative society and brought the relevant record which was EX.PW6/A to EX.PW6/D. PW7 G.C. Jain was the extreasurer of the society and deposed that he worked in the capacity of Treasurer in the year 1982 and upon his appointment he requested the accused to provide the details but despite his request the same was not provided to him and thereafter he deposed on the line of PW2 and PW3.
PW8 S.K. Mehta was an official witness from the Canara Bank. PW9 J.C. Sateja was the inspector who conducted the enquiry FIR No. 353/86 P.S. G.K.1 Page No.40 of 42 in the present matter and his report was EX.PW9/A. PW10 S.P. Sharma was the official from the Registrar of Cooperative Society and the enquiry report given by him was EX.PW10/A and EX.PW10/B. EX.PW11 and EX.PW12 were formal witnesses and PW13 was the investigating officer and PW14 was the forensic expert.
15. In the present matter, PW2, PW3, PW4, PW7 and PW8 are the material witnesses examined by the prosecution. Aforesaid witnesses being the members of the society and the office bearers have deposed the manner in which the offence alleged against the accused was committed by him and the amount of the society entrusted to him was usurped by the accused by forging the documents and by opening an account in the name of the society and transferring the amount of the society to his own benefits by opening two more companies. PW7 has categorically stated that the documents Mark B1 to B13 which shows different amounts deposited in the account of the accused company namely M/s. Prakash and Co. by using the cheque of the society were never signed by him and same was forged by the accused and further the copy of resolution EX.PW7/A dated 01.09.1983 of the cooperative society at point Q26 does not bear his signature. He further deposed that all FIR No. 353/86 P.S. G.K.1 Page No.41 of 42 the cheques from Mark B1 to B13 were forged by the accused and same was never signed by him. If we carefully perused the FSL report EX.PW14/A, EX.PW14/B shows that the specimen signature and the questioned signature could not be matched but if we perused the testimony of all the witnesses it is amply clear that the accused withdrew the amount of the society and credited the same into his own account without giving sufficient cause and thereby with dishonest intention caused wrongful gain to himself and wrong loss to the society. The manner in which the offence charge against the accused was committed has been established by reliable and cogent evidence placed on record and, therefore, in my considered view the guilt of the accused is proved beyond reasonable doubt for the offence punishable u/s 420/408 IPC and the accused cannot be made liable for the offence punishable u/s 468/471 IPC.
16. In view of above discussion, the accused V.S. Shrama s/o Late Sh. H.S. Sharma is convicted for the offence punishable U/s 408/420 IPC and is acquitted for the offence punishable u/s 468/471 IPC.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 19.04.2016 MM10 (SouthEast): Saket Courts:
New Delhi:19.04.2016
FIR No. 353/86
P.S. G.K.1 Page No.42 of 42