Delhi District Court
State vs . Neeraj Kishan Signed By on 28 September, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
Digitally
State Vs. Neeraj Kishan signed by
FIR No. 275/10 ANUBHAV
ANUBHAV JAIN
PS : OIA JAIN Date:
U/s. 408/419/420/467/471 IPC 2018.09.29
16:53:58
+0530
JUDGMENT
A. SL. NO. OF THE CASE : 146/2/11 (89789/16)
B. DATE OF INSTITUTION : 18.02.2011
C. DATE OF OFFENCE : During the year of
200910
D. NAME OF THE COMPLAINANT : Sh. Sunil Whig S/o
Sh. R.N. Whig
E. NAME OF THE ACCUSED : Neeraj Kishan S/o
Sh. Kanhiya Kumar
Srivastava
F. OFFENCE COMPLAINED OF : U/s 408/419/420
/467/471 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Conviction
I. DATE OF FINAL ORDER : 28.09.2018
Brief Statement of Reasons for Decision :
1. Accused present before the Court who stand trial for the offences punishable u/s 408/419/420/467/471 IPC.
2. In brief, facts of the case as per prosecution are that a complaint 2 dated 22.06.2010 were filed by INECO Mills to SHO PSOIA regarding fraud and forgery. It is stated in the said complaint that seven cheques of company, National Impex Agency account No. 157, three cheques of company India National Export Corporation account No. 004 and one cheque of company INECO Mills account No. 007 are neither issued by the said companies nor the said cheques have been signed by the authorized signatories of the respective firms, however it was found that said cheques were presented for encashment with the bank and cash was withdrawn from the said accounts against the said cheques.
Another complaint dated 23.08.2010 was given by INECO Mills to SI Rishi Om Bhardwaj PSOIA wherein it is stated that they have found an account opening form of Bank of India, SME Branch, Okhla and residence proof of Sh. Neeraj Kumar, bearing signatures of Mr. Sunil Whig and Anil Whig i.e. partners of INECO Mills although same were never signed by authorised signatory of INECO Mills and signature upon the same were forged by some person.
Upon the said complaints, FIR bearing no. 275/2010 was lodged. During the course of investigation IO obtained the said cheques from the bank. On 24.09.2010 cheque bearing No. 022528 was obtained by the IO in original and Bank Manger informed that another cheque bearing No. 00513 for a sum of Rs. 60,000/ was deposited in the account no. 67082181947 of person namely Rohit Kumar Srivastava at State Bank of India, Service Branch, Tilak Nagar.
That thereafter, on 02.11.2010 IO obtained the account opening form from the State Bank of Travankore of account bearing No. 67082181947 in the name of Rohit Kumar Srivastava and it was found that the said form bears the photograph of accused Neeraj Kishan. IO 3 further collected and seized the original cheque no. 022513 for a sum of Rs. 60,000/ as well as Bank statement of Rohit Kumar. Thereafter accused Neeraj Kishan was arrested on 15.12.2017 and his disclosure statement was recorded.
IO further took, the accused to company Karvy Comtrade Ltd. where the employees of the said company identified the accused Neeraj Kishan and it was found that the accused on 19.05.2010, through trading account No. 45907 has got transferred Rs. 52,000/ from Bank of India to Karvy Company.
It is further stated that accused has prepared forged documents by name of Rohit Kumar Srivastav and two different PAN cards in the name of Rohit Kumar and Neeraj Kishan (accused herein) and same were seized by the IO and section 467 IPC was added in the charge sheet.
It is further stated that during inquiry it was found that the accused was appointed as an accountant in the INECO Mills, National Impex Agencies, India National Export Corporation and the cheque books of the said companies were kept in an almirah, key of which was with accused and accused stole 13 cheques from the said cheque books and by forging the signature, he withdraw the amount form the said accounts and further transferred the amount vide cheque No. 022570 & 169234 in his own account bearing No. 02683.
It is further found that one cheque bearing No. 022576 was deposited in the account of Postal Order Karvy Company whereby the amount was used by the accused for his own transactions. It was further found that accused got open a forged account and withdraw cash from the same after depositing cheque bearing No. 022513.
4After completion of investigation, charge sheet was filed in the court by the IO.
3. Accused appeared before the court on 21.02.2011 and the copy of chargesheet was supplied to accused u/s 207 CrPC. Thereafter, accused was charged u/s 408/419/420/467/471 IPC by the Ld. Predecessor court on 26.05.2014 to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case prosecution has examined following witnesses :
4.1 PW1 Sunil Whig deposed that he was operating three firms namely National Impex Agencies, Ineco mills and India National Export Corporation located at F87, OIA PhaseI, New Delhi and in November 2009 and May 2010, his employee / accused Neeraj Kumar was employed as an accountant and was in custody of company firms record and cheques of the abovesaid three firms. He further deposed that accused stole 13 cheques leaves from the cheque books and withdrew cash and transferred money to his account at Bank of India, OIA and opened forged account at State Bank of Travancore in the name of fictitious person namely Rohit. He further deposed that accused used the said stolen cheques for getting prepared pay orders in favour of Karvy Ltd. and Infoline Commodities Ltd. and used the same for his personal use of trading with the said companies. He further deposed that some of the stolen cheques were used by him for withdrawing the cash from the account of complainant by forging his signature and signature of Ms. Inge Whig, who is the authorized signatory in India National Export Corporation. He further deposed that accused also transferred Rs.5
60,000/ to one Mr. Rohit through forged cheques and same was noticed in 2010 when complainant visited Bank of India, Okhla branch in May 2010, and noticed accused Neeraj in the CCTV recording. He further deposed that when they came to know that accused has discovered the forgery he absconded and complainant immediately reported the matter to the Branch Manger and also lodged a complaint in the PS OIA Ex. PW1/A. He further deposed that accused has stolen and forged his 13 cheques in total and withdrew / transferred an amount of Rs. 4,46,000/ approximately. He further deposed that he has mentioned the details of 11 cheques in his first complaint Ex. PW1/A and has mentioned details of the other two cheques in the complaint dated 23.08.2010 Ex. PW1/B. He further deposed that he handed over four pages of his specimen signatures to the IO vide Ex. PW1/C (colly) and three pages containing specimen signature of the authorized signatories including himself and Ms. Inge Whig, authorized signatories for operating the bank account of his company namely National Impex Agencies Inecomills and India National Export Corporation. He further deposed that he also handed over documents pertaining to the purchase of car by his company from DD auto world Okhla PhaseI, to the IO which were seized vide seizure memo Ex. PW1/D. He correctly identified the accused person in court.
4.2 PW2 Inge Whig deposed that she was the authorized signatory of Indian National Export Corporation, having its office at F87, OIA Phase I, New Delhi. She further deposed that accused was looking after the accounts of the said company and he was the accountant of the said company as well as other company. She further deposed that accused took three cheques from the cheque books which were kept in Almira in the said company and signed the said three cheques with 6 forged signatures. She further deposed that she was in U.S.A and Canada during the period March 2010 to May 2010 and she gave the specimen signatures to the IO Ex. PW2/A (colly). She correctly identified the accused person in court.
4.3 PW3 Rajaram Sharma deposed that he was working as a Manager in a company INECO India, INECO Mills, Indian National Export Corporation and National Impex Agency, from the year 2010 and he was doing the file work as well as the overall management of the company. He further deposed that in June, 2010 Mr. Sunil told him that when he was checking the cheque book of the above three companies, he found that cheque leaves to the tune of 13 was missing from the cheque book. He further deposed that thereafter, he and Sunil went to the Bank of India, at Okhla PhaseI to enquire about the missing cheques and on analyzing the video footage of bank found that Neeraj Kumar who was working as an accountant in their company has forged the above said cheques. He further deposed that by the time they returned back to the company accused Neeraj Kishan escaped and they report about the same to the PSOIA vide complaint Ex. PW1/A. He further deposed that cheque in questions, specimen signature of Mrs. Inge Whig and account opening form was seized/given to the SI Rishi Om Bhardwaj and same is already exhibited. He further deposed that CCTV footage CD pertaining to the bank where the accused forged our company cheque was seized vide seizure memo Ex.PW3/E. He further deposed that a forged account in the name of one Rohit Kumar which was being operated by accused and cheque leaf, account statement, account opening form which was being managed in the State Bank of Travancore was seized vide seizure memo Ex.PW3/F. He further deposed that ledger bank confirmation of 7 the company namely Carvey Trading Company where the accused was involved in trading activities and Ledger Statement of India Info lines Trading Company where the accused was involved in trading activities was seized vide seizure memo PW3/G and PW3/H respectively.
4.4 PW4 Pawan proved the arrest of accused Neeraj Kishan and further proved arrest memo Ex. PW4/B. 4.5 PW5 B. Bashu Chaudhary deposed that he was posted as accountant in State Bank of Travancore, Tilak Nagar Branch, New Delhi and one person namely Rajaram came to his office and produced one notice u/s 91 Cr.P.C. for account statement and one cheque of Rohit Kumar. He further deposed that thereafter, he handed over the account statement and one cheque of Rohit Kumar to Rajaram. He further deposed that Rajaram took the same from his office and left. He further deposed that IO seized the original account opening form, original cheque and bank account statement vide seizure memo Ex.PW3/F. 4.6 PW6 Nitin Sharma deposed that he worked in the company i.e Karvy Comtrade Ltd. as a dealer for about 5 years and left the said company in the 2014. He further deposed that police officials had come at their office alongwith accused Neeraj and he had handed over to the police ledger statement of accused Neeraj and same was seized vide seizure memo Ex.PW3/G. He further failed to identify the accused stating that he had seen the accused at first time when police had come at his office and he had never seen accused before and after that.
4.7 PW7 Ct. Mukesh deposed that on 10.01.2011, he was posted as Ct. at PS OIA and on that day, three sealed envelops duly sealed with the seal of 'RO' were handed over to him by MHC (M) PS OIA and he took the said envelopes to FSL Rohini. He further deposed 8 that the receipt from the FSL was deposited with the MHC (M) after he returned from FSL and that said envelopes were not tampered by him and they remained intact during their custody with him.
4.8 PW8 HC Munish Kumar deposed that on 15.12.2010, he was posted as constable at PS OIA and on that day, he alongwith IO/SI Rishi Om was present at Tehkhand Chowk, Okhla PhaseI, New Delhi. He further deposed that IO received information on his mobile phone at around 6:45 pm that the accused of this case is present at Hanuman Mandir, Cannaught Place, New Delhi and IO shared the said information with him and also informed the SHO PSOIA. He further deposed that on the instructions of SHO PSOIA to conduct the raid, he alongwith IO came to PS OIA and at around 7:05 pm, IO recorded DD No. 22A and left the PSOIA for Hanuman Mandir, Cannught Place and at around 8:00 pm, they reached at Hanuman Mandir, Cannought Place and met with Raja Ram Sharma, Pawan Kumar Sahai and driver namely Ali. He further deposed that IO requested public persons to join the investigation however none agreed and left the spot without disclosing their names and addresses. He further deposed that they waited outside the temple and apprehended accused on identification of Pawan Sahani and Raja Ram Sharma. He further deposed that at around 8:15 pm, they came back at PS OIA and accused was arrested and his personal search was conducted vide Ex. PW4/B and PW4/C. He further deposed that disclosure statement of accused was recorded vide Ex. PW4/A. 4.9 PW9 Pramod Kumar Bhandari deposed that on 24.09.2010, he was posted as Manager, Bank of India, Branch OIA PhaseI, New Delhi and on that day, he received a notice u/s 91 Cr.P.C vide Ex. PW9/A, wherein he was asked by the IO to provide original 9 cheque no.022513 and 022528 of our bank upon which he handed over original cheque no. 022528 dated 07.12.2009 for Rs.10,000/ cash withdrawn Ex.PW9/B and photocopy of cheque no.022513 dated 27.11.2009 of Rs.60,000/ and informed that this cheque was deposited in the account of Rohit in the State Bank of Travancore, service branch, Tilak Nagar.
4.10 PW10 ASI Manvir Singh proved the FIR Ex. PW10/B. 4.11 PW11 Retd. SI Rishi Om Bhardwaj deposed that on 27.07.2010, he was posted as SI at PSOIA and on that day, he received a written complaint of Sh. Sunil Whig regarding cheating upon which he got the FIR registered. He further deposed that on 06.08.2010, he went to company of the complainant at F87, OIA PhaseI, New Delhi and met with Manager Raja Ram, complainant Sunil Whig and Inge Whig and Raja Ram handed over five cheque books Ex. PW11/P1 to P5, application form Ex. PW11/B (colly) of accused Neeraj Kishan and letter of interview of accused Neeraj Kishan Ex. PW1/D1. He further deposed that he collected specimen signatures of complainant Mrs. Inge Whig Ex. PW2/A. He further deposed that he seized bank account opening form of accused Neeraj Kishan vide seizure memo already Ex. PW3/B. He further deposed that on 19.08.2010 he had collected 11 original cheques from Bank of India and bank account statement of India National Export Corporation, National Impex Agency, INECO Mills and accused Neeraj Kishan vide seizure memo already Ex. PW3/C and Ex. PW3/D respectively. He further deposed that he have also collected one CD from Sh. Prempal Sehgal vide seizure memo Ex. PW3/E. He further deposed on 24.09.2010 he collected one original cheque from Bank of India Ex. PW9/B and same was seized vide seizure memo Ex. PW 10 11/C. He further deposed that on 02.11.2010 he collected original account opening form of Rohit Kr. Shrivastava, original cheque beairng no. 022513 and bank account statement of Rohit Kr. Shrivastava from State Bank of Travancore, Tilak Nagar Branch vide seizure memo already Ex. PW3/F. He further deposed that on 15.12.2010 he alongwith Ct. Manish was on patrolling duty at Tehkhand Village and at about 6.45 pm a secret informer informed that accused Neeraj Kishan can be apprehended from Hanuman Mandir, Cannaught Place and he got recorded DD no. 22A, dt. 15.12.2010 regarding secret information and thereafter informed Raja Ram and Pawan Sahni and asked them to come at Hanuman Mandir, Cannaught Place. He further deposed that thereafter he alongwith Ct. Manish went to Hanuman Mandir, Cannaught Place and accused Neeraj Kishan was apprehended from there on the identification of Pawan Sahni and Raja Ram and his arrest memo and personal search was prepared vide Ex. PW4/B and PW4/C. He further deposed that on 17.12.2010 he went to Karvi Company, Shivaji Marg, Najafgarh Road and collected the ledger balance statement of accused Neeraj Kishan vide Ex. P1(colly). He further deposed that he had collected ledger statement of accused Neeraj Kishan from India Info Lines Company vide seizure memo Ex. PW3/H running into 9 pages and MarkedPW11/A. He further deposed that he had taken specimen signatures of Sh. Sunil Whig and on 31.12.2010 he took specimen signatures and handwriting of accused Neeraj Kishan with the permission of the court vide Ex. PW11/D. He further deposed that he have sent the question documents and the specimen signatures to FSL, collected the report from FSL, recorded statement of witnesses and prepared the challan and submitted in the court. He correctly identified the accused in 11 the court.
5. Statement of accused u/s 313 C.r.P.C. was recorded on 17.11.2017 to which the accused denied all the allegations as levelled upon him by the prosecution. Further the accused stated that he has been falsely implicated in the present case and he used to work as accountant in INECO Mills and the cheque books were kept in the drawer of and the same were used and got signed by the authorized signatory as and when required. It is further stated that he opened account in the name of Rohit Kumar on asking of Anil Whig and further that he had filled the contents of the cheque and got the same signed by the competent authorities.
6. In his defence accused has examined following witnesses :
6.1 Sachin Verma DW1 who deposed that in the year 2010 he used to work with India Infoline and while he was working with Indian Infoline accused used to come there as customer. He further deposed that he used to provide advisory services to the accused in stock market and accused used to invest his own amount as per their advice. He further deposed that he met the employer of the accused namely Anil Whig with regard to the investment and he explained Mr. Anil Whig regarding investment in commodity market. He further deposed that Anil Whig told him that initially he will invest through the account of accused and in case the return is good he will get opened his own account. He further deposed that Anil Whig has done investment through the account of accused in gold and silver commodity and had deposited sum of Rs. 1 lac in the account of the accused so as to get it invested in the 12 commodity account. He further deposed that he used to regularly advised the said Mr. Anil Whig to invest in different commodities and thereafter they used to invest as agreed by Anil Whig through the account of accused.
6.2 Gaurav Manbans DW2 who deposed similar in the lines of DW1 and same is not being reiterated here for the sake of brevity.
Accused does not wish to lead any further evidence and defence evidence was closed and matter was listed for final arguments.
7. I have heard the Ld. APP for State and counsel for accused and perused the case file carefully.
8. It is argued by the Ld. APP for the State that it is admitted by the accused that he used to work with the complainant company and that cheque books of the complainant company were within his possession. It is further argued by Ld. APP for the state that as per FSL report, cheques in question does not bears the signature of authorised signatories. It is further argued that from the perusal of bank statement of the complainant's companies as well as that of accused it is clear that amount was withdrawn from the account of the complainant's companies and also that same amount was deposited by accused in his own account. It is further argued by Ld. APP for the state that from the evidence brought on record it is proved by the prosecution beyond reasonable doubts that accused was also operating an account by the name of Rohit Shrivastava and that prosecution has able to prove its case beyond reasonable doubts and accused is liable to be convicted for the offences he is charged for.
139. On the other hand, it is argued by the counsel for accused that as per the FSL report, cheques in question does not bear the signature of the accused. It is further argued that it is admitted by the complainant that amount was withdrawn from the said accounts by the accused for payment of salaries to the employees of complainant's companies. It is further argued that cheque in question were cleared by the bank only after verifying the same with specimen signature available with bank. It is further argued by Ld. Counsel for the accused that prosecution has failed to prove its case beyond reasonable doubts and accused is entitled to be acquitted for the offences he is charged for.
10. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond reasonable doubts. It is the case of the prosecution that accused herein was employed with the company of the complainant and was looking after the accounts work of companies of the complainant namely National Export Corporation, National Impex Agency and INECO Mills. It is further the case of prosecution that accused was entrusted with the cheque books of the said companies and have dishonestly misappropriated 13 cheques from the said cheque books by forging the signature of the authorised signatories upon the same and encashing the said cheques for his own use. Accused Neeraj Kishan is charged u/s 408/467/471 IPC for the alleged offence.
11. Before proceeding further with the appreciation of evidence, it would be pertinent to state in here, facts which are admitted by the accused :
14a) Accused was employed as accountant with one of the complainant's company, however he used to look after the work of all 3 companies of complainant. (admitted u/s 313 CrPC)
b) Accused has access to the cheque books of the complainant's companies (admitted u/s 313 CrPC)
c) Contents of cheque in question were filled up by accused (proved by FSL report and further admitted by accused in statement u/s 313 CrPC)
12. It is argued by counsel for the accused that prosecution has failed to prove said allegations on following grounds :
a) As per FSL report, accused has not forged signatures of authorised signatories upon the cheques in question.
b) That cheques in question were cleared by Bank after tallying / verifying the signatures with that of specimen signatures. Reliance was placed upon cross examination of bank witness Sh. Pramod Kumar Bhandari who deposed as PW9.
c) That PW1 in his cross examination has admitted that they used to collect the statement of accused monthly and the cash withdrawal from the said accounts was well within the knowledge of complainant.
d) That complainant had admitted that cash was withdrawn from said account by accused in order to disburse salary of employees of complainant's company. Further reliance is placed upon cross examination of PW1 wherein he has stated that 15 "...sometime said amount was withdrawn from the bank by accused Neeraj to distribute salary to the employees..."
To sum up, it is the defence of accused in the present case, that cash withdrawal from bank against the cheques in question was made for payment of salary to employees and same was well within the knowledge of the complainant and as per the FSL report said cheques were never signed by the complainant.
13. In order to bring home charges u/s 408/467/471 IPC against the accused Neeraj Kishan, it was for the prosecution to prove that :
a) that accused Neeraj Kishan was employed with complainant company.
b) that accused was entrusted with cheque books of complainant's companies.
c) that cheques of complainant company were misappropriated by the accused by forging the signatures of authorised signatory upon the same, for his own use.
14. In order to prove the fact that accused was employed with complainant company, the complainant during the course of his cross examination have stated that :
" Accused started working with me from April May 2009 and his designation was of accounts.
He was looking the accounts of all 3 companies. Accused was employed for one company namely Inecomills but he was authorised to look the 16 accounts of other 2 companies....... It is correct that accused Neeraj was employed for one company but he was also authorised to work for other 2 companies........."
Although there is no appointment letter qua the same is placed on record, however the fact that accused was working with complainant company was never denied by accused. On the other hand, it is admitted by the accused in his statement u/s 313 CrPC that he used to work as accountant in INECO Mills, however all 3 companies used to give him work.
15. Further with regard to the fact that accused was in custody of cheques of the complainant company, Inge Whig and Sunil Whig who appeared as the prosecution witnesses deposed with regard to the fact that accused was working as an accountant with the companies of the complainant and cheque books of the complainant company were within the possession of the accused.
It is pertinent to state in here that said fact was never denied by the accused or questioned during the course of cross examination of prosecution witnesses. Further it is pertinent to state in here that said fact was admitted by the accused in his statement u/s 313 Cr.P.C
16. Once it is proved by the prosecution that accused was employed with the companies of complainant and was entrusted with cheque books of the complainant company, it was for the prosecution to prove that signatures upon the said cheques were forged by the accused and thereafter same were misappropriated.
17As per the prosecution 13 cheques were misappropriated by the accused of the complainant company in following fashion :
a) withdraw cash against the cheque no. 022507, 022533, 022553, 022568, 022597, 056167, 056215 and 022528.
b) issued PO favouring Karvy Comtrade Ltd. against cheque no. 022576 for sum of Rs. 52,000/.
c) has transferred an amount of Rs. 1 lac against cheque no.
022570 and a sum of Rs. 13,000/ against cheque no. 169234 in his own account no. 602910110002683.
d) issued PO favouring India Infoline Commodities Ltd. against cheque no. 056188 for a sum of Rs. 1 lac.
e) transferred a sum of Rs. 60,000/ in account of Rohit Shrivastav vide cheque no. 022513.
17. In order to substantiate the fact that the signatures upon the said cheques were forged by the accused, IO has obtained the original cheques from the bank and has further obtained the specimen signature of the authorised signatories to the said cheques and that of accused and sent the same to FSL for examination. The said FSL report was proved by the IO (further same is admitted u/s 293 CrPC) As per the FSL report, the signatures upon the cheques in question did not match with the signatures of the authorised signatories i.e. Sunil Whig or Inge Whig. Further as per the FSL report no opinion can be given as to whether the said signatures upon the cheques in question were done by the accused or not.
Further as per the FSL report, the contents of the said cheques 18 were filled in the handwriting of accused. As stated above, fact that contents of the said cheques were filled in hand writing of the accused was admitted by accused in his statement u/s 313 CrPC.
A) Withdrawal of Amount :
18. Prosecution has further placed on record Bank statement of accounts of complainant's companies i.e. National Impex Agencies account bearing no. 602927100020157, Indian National Export Corporation account bearing no. 602927100020004 and Ineco Mills account no. 602920100010007 from which the cash is stated to have been withdrawn by the accused by forging the signatures of authorised signatories upon cheques in question. Perusal of statement of accounts of the said companies so placed on record reveals that cash was withdrawn against the said cheques.
Although no bank witness appeared to prove the bank statements, however IO during the course of his deposition has stated that said Bank statements Mark PW11/X (colly) were collected by him from the bank. Said bank statements further bear seal and signature of Chief manager of said Bank. Further fact that said Bank statements were collected by the IO from the bank is further corroborated Raja Ram, PW3 who is witness to the seizure memo Ex. PW3/D by which the said statement of accounts were seized.
It is further pertinent to state in here that accused never denied or questioned said statement of accounts or the fact that the amount was withdrawn from the bank against the said cheques.
B) PO favouring Karvy Comtrade Ltd. :
1919. With regard to the allegations that cheque no. 022576 dt. 19.05.2010 for sum of Rs. 52,000/ was deposited in account of accused at Karvy Comtrade Ltd., prosecution has examined PW6 Sh. Nitin Sharma who stated that he had handed over to the police, ledger statement of accused and same was seized by IO.
Perusal of ledger statement of account of accused so placed on record reveals that on 20.05.2010 a sum of Rs. 52,000/ was deposited in the account of Neeraj Kishan.
20. IO has further placed on record cheques bearing no. 022576 dt. 19.05.2010 for sum of Rs. 52,000/. It is pertinent to state in here that words "please make a pay order in favour of Karvy Comtrade Ltd." is mentioned on the back side of said cheque. As per FSL report, no opinion can be given upon the said words and signature on the back side of said cheque.
C) Amount deposit in his own account bearing no.
602910110002683.
21. It is further alleged against the accused that he had transferred a sum of Rs. 1 lakh in account no. 602910110002683 which is in name of accused himself by forging cheque no. 022570. Similarly he has transferred another sum of Rs. 13,000/ in his account no. 602910110002683 by forging cheque bearing no. 169243.
In order to prove the fact that said amount i.e. Rs. 1 lakh vide cheque no. 022570 and Rs. 13,000/ vide cheque no. 169243 was transferred in account of accused, IO has placed on record statement of account 20 bearing no. 602910110002683 in the name of Neeraj Kishan. Perusal of said statement reveals that amount of Rs. 1 lakh was deposited in the account against cheque no. 022570 and Rs. 13,000/ was deposited against cheque no. 169243.
Said statement of account duly bears the seal and signatures of Chief Manager of SBI and is accompanied by certificate dt. 15.02.2011 of Asst. General Manager, Okhla, SME Branch, Bank of India.
Said bank statements were seized by IO vide seizure memo Ex. PW3/D in presence of witness Rajaram Sharma. During the course of deposition, it is stated by IO that he had collected the said statements from bank on 19.08.2010. Said fact is further corroborated by Rajaram who deposed as PW3 in his testimony.
Furthermore genuineness of said documents was never questioned by accused nor the accused ever denied the fact that he does not have any such account.
D) Deposit made in India Infoline Commodities Ltd.
22. It is further alleged against the accused that he has deposited a sum of Rs. 1 lakh against the cheque no. 056188 in his account at India Infoline Commodities Ltd.
It is pertinent to state in here that the witness from Indian Infoline Company was dropped from list of witnesses by Ld. Predecessor Court vide order dt. 03.07.2017 while noting that despite several sufficient opportunities given to prosecution the witness has not appeared.
It is pertinent to state in here that IO has placed on record original 21 cheque bearing no. 056188 for sum of Rs. 1 lakh. Further at the back side of the cheque it has been mentioned "please issue us a demand draft in favour of India Infoline Commodities Ltd. neerkris."
It is further pertinent to state in here that although no witness has been adduced for the prosecution in order to prove the alleged fact, however the accused has brought forth 2 witnesses in his defence evidence from India Infoline Commodities Ltd. in order to show that a sum of Rs. 1 lakh was deposited by way of DD in the account of accused Neeraj Kishan at India Infoline Commodities Ltd. by Sh. Anil Whig.
E) Account in the name of Rohit Shrivastav.
23. It is further allegations against the accused that accused opened bank account no. 67082181947 in State Bank of Travancore by impersonating himself as Rohit Shrivastav and encashed one forged cheque bearing no. 22513 for an amount of Rs. 60,000/.
In order to prove the said fact, the IO has placed on record original cheque bearing no. 022513 for sum of Rs. 60,000/ in favour of Rohit Kumar Shrivastav. Further on the back side of the said cheque " a/c no. 67082181947" is mentioned. IO has further placed on record original bank account opening form of a/c no. 67082181947 in the name of Rohit Kumar Shrivastav which bear the photograph of accused Neeraj Kishan. IO has further placed on record statement of account of the said account number mark PW11/2 perusal of which reveals that cheque bearing no. 022513 for sum of Rs. 60,000/ was credited in the said account on 03.12.2009. Said documents were seized by IO from Bank of Travancore vide seizure memo Ex. PW3/F. The fact that said cheque was deposited 22 in account of Rohit was proved by Sh. Pramod Kumar Bhandari who deposed as PW9.
It is further pertinent to state in here that during the course of statement u/s 313 CrPC it has been admitted by the accused that he has opened the account bearing no. 67082181947 with Bank of Travancore and he deposited a cheque bearing no. 022513 for an amount of Rs. 60,000/ in the same. The relevant portion of statement u/s 313 CrPC is being reproduced as under :
Q. It is in evidence against you that on the abovesaid date, time and place, you impersonated yourself as Rohit Kumar Shrivastav and opened an account bearing no. 67082181947 in State Bank of Travancore and encashed one forged cheque bearing no. 22513 for an amount of Rs. 60,000/. What you have to say ?
A. I have got the account opened in the name of Rohit Kumar on asking of Anil Whig. The said cheque was given to me by Anil Whig and same was deposited by me on asking of Anil Whig.
As such the prosecution has able to prove beyond reasonable doubt that accused has opened an account with State Bank of Travancore in the name of Rohit Kumar Shrivatav and has deposited a cheque bearing no. 022513 i.e. cheque in question, for sum of Rs. 60,000/ in the said account.
24. After appreciating the facts and evidence of the present case it is proved that accused was employed with one of the complainant's company as accountant and was looking after the work of all 3 companies of the complainant. It is further proved that accused was having access to the cheque books of the complainant companies.
23As stated above, it is further proved from the FSL report that said 13 cheques in question does not bear signatures of authorised signatories and the contents of said cheque were filled up in handwriting of accused.
25. Further accused has himself adduced evidence to show that Rs. 1 lakh was deposited by Anil Whig in his account at India Infoline Commodities Ltd. Said fact was further corroborated by fact that on the back side of cheque bearing no. 056188 mentions "PO in favour of India Infolineneerkis".
26. The point of argument so raised on the part of accused is that as per FSL report no opinion can be given that signatures upon the cheques in question was forged by accused Neeraj Kishan.
Once it is shown by the prosecution that :
a) cheques in question were in custody of accused,
b) contents of same were filled up by accused,
c) Said Cheques does not bear signatures of authorised signatory,
d) two cheques were deposited in account no. 602910110002683 operated by accused Neeraj Kishan,
e) one cheque was deposited in account of Karvy Comtrade Ltd. being operated by accused,
f) cash was withdrawn against remaining cheques,
g) accused used to withdraw cash from bank on behalf of complainant company, it can be said that prosecution has able to prove the fact that the cheques in question were misappropriated by the accused by forging the 24 signatures upon the same. Merely because, no opinion is given by FSL upon the forged signatures, same does not exonerated accused. It is stated by accused that amount was withdrawn to disburse salary of employee of complainant company and as such it was for accused to show the same. At this stage it would be relevant to reproduce in here sec 106 of Indian Evidence Act, 1872 which provides as follows:
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Further in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 it was observed by Hon'ble Apex Court:
144. In this regard reliance may be placed on Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri) 717] : (SCC p. 381, para 19)
19. [It is] pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
Further in Yogesh Singh v. Mahabeer Singh and Ors. 2016 SCC OnLine SC 1163 passed by Hon'ble Apex Court it was observed that :
15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts.
However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. v. Krishna Gopal, (1988) 4 SCC 302:
25"25. ... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice."
17. However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations, as has been held by this Court in the case of State of Punjab v. Jagir Singh, (1974) 3 SCC 277:
"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures."26
27. It was further argued that as per the statement of account of Karvy Comtrade Ltd. an amount of Rs. 52,000/ was deposited against cheque no 083163 on 20.05.2010 and not against cheque no. 022576 i.e. cheque in question.
In this regard it is pertinent to state in here that prosecution has proved:
1) That contents of cheque bearing no. 022576 dt. 19.05.2010 for sum of Rs. 52,000/ were filled by the accused
2) cheque bearing no. 022576 requested to issuing of PO in favour of Karvy Comtrade Ltd.
3) accused has account in Karvy Comtrade Ltd.
4) FSL report reveals that cheque was not signed by authorised signatory.
5) statement of account of accused at Karvy Comtrade Ltd. reveals an entry of Rs. 52,000/ on 19.05.2010.
6) Statement of account of account bearing no. 602927100020157 shows entry PO of Rs. 52,000/ on 19.05.2010.
28. Furthermore, accused never denied the fact that he never deposited the said cheque in his account at Karvy Comtrade Ltd. Complete chain of facts goes to show that cheque bearing no 022576 for a sum of Rs. 52,000 was deposited in the account of accused at Karvy 27 Comtrade Ltd. Merely because IO has not placed on record the PO issued favouring Karvy does not absolve the accused of his liability. Further it is settled proposition of law that merely because IO has not done the investigation appropriately does not in itself became a ground of acquittal in a case. For the same I may place reliance upon judgment passed by Hon'ble Apex Court in Sukhwinder Singh v. State of Punjab, (2014) 12 SCC 490 it was observed by Hon'ble Apex Court:
18. But, if such mistakes or lapses are given undue importance every criminal case will end in acquittal.
While it is true that the police should not involve innocent persons, fabricate evidence and obtain convictions, it is equally true that cases in which substratum of the prosecution case is strong and substantiated by reliable evidence, lapses in investigation should not persuade the court to reject the prosecution case. The court with its vast experience should be quick to notice mischief if there is any. Incompetent prosecuting agencies or prosecuting agencies which are driven by extraneous considerations should not be allowed to take the court for a ride. Particularly in offences relating to women and children, which are on the rise, the courts will have to adopt a pragmatic approach. No scope must be given to absurd and fanciful submissions. It is true that there can be no compromise on basic legal principles, but, unnecessary weightage should not be given to minor errors or lapses. If courts get carried away by every mistake or lapse of the investigating agency, the guilty will have a field day. The submissions relating to alleged overwriting and discrepancies in timings and dates, therefore, are rejected
29. It is further argued by counsel for accused that Inge Whig during the course of her testimony have stated that she have not given specimen signatures to police officials and that she had given the same to her brother in law Sunil Whig who in turn have given the same to police officials.
It is pertinent to state in here that Inge Whig during the course of 28 testimony stated that specimen signature Ex. PW2/A (colly) S5 to S7/1 are not her or that she has not made that ever. Even if said signature were not made in front of IO, there is nothing placed on record to show that said specimen signatures were not made by Inge Whig. Furthermore even if it is believed that these signatures are not of Inge Whig but of some other, it is pertinent to state in here that sign of Inge Whig are merely as 3 cheques i.e. cheque bearing no. 056188, 056215 amd 056167 of 13 forged cheques.
30. It was further argued on behalf of accused was that it was admitted by complainant that accused used to withdraw amount from accounts of complainant company in order to give salary to employees of complainant company. Even if so, burden lies upon accused to prove that cash from said cheques was indeed withdrawn in order to give salary to the employees of complainant company, however no evidence was led by the accused in that regard.
Even if for the sake of arguments, it is believed that cheques in question were encashed to give salary to the employees of complainant company, there is no explanation as to why some of the said cheques were deposited in personal account of accused Neeraj Kishan i.e. account bearing no. 602910110002683 or in account of Karvy Trading Comtrade Ltd.
Further, there is no explanation as to what was need for the accused to open an account in the name of Rohit Shrivastav and deposit one of the cheques of complainant's company is same.
31. Furthermore, even if all the arguments so led on behalf of accused 29 are believed to be true and correct, it is stated by accused himself that he deposited cheque no. 022513 in account of Rohit Shrivastav bearing no. 67082181947 for sum of Rs. 60,000/ upon asking of Anil Whig. He further adduce evidence to show that Rs. 1 lakh was invested in his account at India Infoline Commodities Ltd. by Anil Whig vide cheque no. 056188.
Both the said cheques bears forge signatures of Sunil Whig and not that of Anil Whig. Again there is no explanation from accused with regard to said cheques.
32. It is further argued that cheques were cleared by Bank after cross verifying the signatures upon cheque in question with that of specimen signatures of authorised signatories available with bank. It is pertinent to state in here that as per FSL report, said cheques does not bear signatures of authorised signatories. Further both Sunil Whig and Inge Whig have specifically stated during their cross examination that cheque in question does not bear their signatures.
Bank officials are not experts who can match each and every curve of signatures. Even if it is believed that said cheques are wrongly encashed by bank officials same again does not exonerated accused of his offence.
33. Considering the facts discussed above, the prosecution has able to prove that the accused Neeraj Kishan was employed with complainant companies and was entrusted with the cheques of complainant company and he has misappropriated the cheques of complainant company, for his own use after forging the signatures of authorised signatories upon 30 the same and further that accused has opened an account with State Bank of Travancore by impersonating himself as Rohit Kumar Shrivastav and as such accused Neeraj Kishan is convicted for the offence punishable u/s 408/419/420/467/471 IPC.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 28.09.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 30 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI