Delhi District Court
State vs Prabhat Suman Sehgal on 31 August, 2015
IN THE COURT OF MS.AMBIKA SINGH: METROPOLITAN
MAGISTRATE-06, CENTRAL DISTRICT, TIS HAZARI COURTS
DELHI
FIR No. 87/94
State V/s Prabhat Suman Sehgal
U/S 409/468/471/420 IPC
PS Sadar Bazar
CC No. 214/2
U. ID No. 02401R0799952003
Date of Institution :23.05.1996
Date of commission of offence : 02.03.1993
Name of the complainant : Sh. Karan Singh
Name and address of accused : Prabhat Suman Sehgal, R/o 16/109,
Joshi Road, Karol Bagh, New Delhi.
Offence charged with : 409/468/471/420 of IPC
Plea of guilt : Pleaded not guilty.
Final Order : Convicted
Date on which order has been reserved : 17.08.2015
Date of pronouncement of Judgment : 31.08.2015
JUDGMENT
1 The Prosecution has filed the charge sheet against the accused Prabhat Suman Sehgal u/s 409/468/471/420 IPC. The case of the prosecution in brief is as under:-
That on 02.03.1993 at MCD Office, SP Zone, New Delhi, within the jurisdiction of PS Sadar Bazar, Delhi, the accused was working as UDC in the SP Zone and in such capacity Sh. Brij Mohan and Subhash Chand paid him the property tax of their houses vide receipt No. 764018/19, which was not deposited by the accused with MCD and misappropriated the same by converting the same in his owner and committed criminal breach of trust and thereby committed an offence punishable u/s 409 IPC and he further committed forgery by making duplicate/forged receipt no. 764018 and 764019 with the intention that forged receipt be used for the purpose of cheating and also FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 1/20 fraudulently or dishonestly used the forged receipt as genuine receipt which he knew to be forged one for the purpose of misappropriating the property tax and thereby committed an offence punishable u/s 468/471 IPC. On 02.03.1993, the accused forged two receipts and obtained tax Rs. 4737/- and Rs. 6935 from property tax payer Brij Mohan & Subhash Chand and you dishonestly issued forged tax receipts to them and you did not deposit the tax in MCD. The accused being a clerk of MCD, cheated tax payer of MCD and thereby committed an offence punishable u/s 420 IPC.
2. After investigation, the accused was charged for the offences punishable u/s 409/468/471/420 IPC on 02.05.1997 to which he pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined ten witnesses i.e PW1 ASI Bharat Singh, PW2 Nand Lal, PW3 Tara Chand Sharma, PW4 Karan Singh, PW5 Amar Singh, PW6 Lalit Kumar, PW7 Ramesh Chand, PW8 Brij Mohan, PW9 Subhash Chand and PW10 Virender Kumar. Thereafter, PE was closed on 03.10.2005. On a careful scrutiny of the Evidence led by the Prosecution, it becomes important to briefly reproduce here the relevant testimonies of PWs.
4. PW-1 ASI Bharat Singh deposed that on 05.04.1994, he was working as Duty Officer. On that day, on receipt of rukka presented by SI KP Tomar, he recorded the FIR no. 87/94 u/s 420/409/468/471 IPC and copy of FIR was sent to SI KP Tomar through Ct. Sahdev Singh.
5 PW2 Sh. Nand Lal has testified that he was working as UDC, SP Zone on 30.03.1995 and that he had prepared the record. He submitted that he prepared only two receipts and no other document had been prepared by him neither had he gone to the Police Station to deposit any document. He has denied that he was ever interrogated by the Police in regard to this case. He admitted that receipt nos. 764018 and 764019 dated 05.05.1993 had been issued by him for Rs. 200/- and Rs. 50/-, which are exhibited as PW2/A and PW2/B. FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 2/20
6. PW-3 Tara Chand Sharma deposed that on 30.11.1994 he was posted as Asstt. Director of Vigilance, 16 Rajpur Road. On that day, IO of this case came to his office and enquired about the present case and he told him that case file of this case was received but was returned back as the case was investigated by the Department and the FIR has been lodged by the Department.
7. PW4 Karan Singh has testified that on 20.10.1994, one Brij Mohan showed him two G8 property tax receipts numbered 764018 and 764019 showing amount of Rs.6,935/- and Rs.4,737/-. He got the matter examined and found that the said receipts have not been prepared by the MCD official concerned. Further, he has stated that the said receipts were issued in May, 1993 for Rs. 200/- and Rs.50/- He stated that till 28.12.1992, receipt till number 764006 had been issued from the G8 receipt Book by the accused herein and no further receipts had been issued therefrom. He has added that from 28.12.1992 to 31.03.1993, the G8 Receipt Book was in the custody of the accused herein. Further, he submitted that the said Book was returned by the accused on 31.03.1993 and it was thereafter issued by the Store Keeper in April, 1993 to some other concerned official. Since, it was found that the receipts shown by Brij Mohan were not the original receipts and were not issued by the official concerned, a FIR for forgery and cheating was got registered vide a written complaint against the accused Prabhat Suman Sehgal.
8. PW-6 Lalit Kumar deposed that one assessee came to Amar Singh and shown him two property tax receipts and asked Amar Singh that they had paid the payment of said tax receipts but the entry of the said payment had not been made in the register. Amar Singh checked the record and found that no entry of the said receipts amount was in the register. Thereafter, Amar Singh informed to his Senior Officer, Third receipts copy was in the office record and the same was checked and found the difference in the amount of the receipts, thereafter, vigilance department was informed and thereafter the record of the same was taken by the vigilance dept.
FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 3/20
9. PW-7 Raman Chand deposed that on 30.03.95, Mr. J. P Chauhan alongwith Nandlal and IO collected some documents in respect of accused Prabhat Kumar Sehgal who was LDC in his office. The said documents were photocopies which were attested by Shri Chouhan. All the said photocopies of documents are Mark - A to O.
10. PW8 has stated that on 20.10.1993, he had deposited House-Tax against his own property as well as his brother's properties vide receipt nos. 744019 and 744018 to the accused who was LDC on that day in MCD office. It may be noted that during this testimony the accused was not present in the Court. He further stated that he deposited money/amount of Rs. 6935/- and Rs. 4737/- as house-tax and the accused issued property-tax receipt on 20.10.1993 against the said payment. The said tax was paid by him for the years 1990-1993. He had shown the said receipts to Amar Singh who had then told him that neither the entry had been made in the ledger nor the amount had been deposited with the Government. He reported the matter to a Senior Officer in November, where after both the said receipts were taken from him by the Officer. He came to know later that the said receipts were fake and forged and a case had been registered against the accused. He had identified the accused before the police at the Police Station in 1995. It may be noted that he correctly identified both the said receipts when the same were shown to him in the Court. He also named the accused to be Prabhat Suman Sehgal.
11 PW-9 Shubash Chand deposed that he was owner of the shop no. 349 to 351, gali chappa kana, SB, he had given the amount of Rs. 4737/- to his brother Brij Mohan for depositing the same in MCD office against the said shop of the year of 1992-1993. His brother Brij Mohan deposited the same and gave him a receipt no. 764018 dated 2.3.1993. Thereafter, the MCD official came to him and asked about the same, then he came to know that the said receipt was forged prepared by accused Prabhat Sehgal. He gave the said receipt to his brother. Police also inquired him and recorded his statement.
12 PW-10 Virender Kumar deposed that he had a shop bearing no. 5232-34 FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 4/20 in Sadar Bazar and he had deposited the tax of the shop i.e Rs. 50/- in the house tax office situated at Sadar Bazar. When he had deposited the amount, the concerned clerk issued him a receipt Ex. PW7/A, he do not remember the name of the person who issued the receipt, later on the police came to his shop and asked for the original receipt and he told that same is missing. Police recorded his statement.
13 After conclusion of prosecution evidence, Statement of the accused has been recorded under Section 281 Cr.P.C R/w 313 Cr.P.C on 24.10.2005, wherein the accused stated that on 02.03.1993 he was posted as LDC in SP zone MCD. However, he denied that Brij Mohan and Subhash had deposited property tax of house vide receipt no.764018 and 764019 with him which he had not deposited with MCD. He also denied making duplicates of the same. He further stated that the receipt book was issued to him having no. 76401 to 100 but he issued receipt no. 1 to 6 only and the rest unused were deposited with record keeper of MCD. He stated that he has been falsely implicated in the present case and he is innocent. Also, he chose not to lead any Defense evidence. However, it is pertinent to note that later the Accused got himself examined as a Defence witness under Section 315 of the Cr.P.C.
14 The accused in his Examination-in-Chief has stated that he was working as LDC, S.P.Zone in MCD at the time of Registration of this case and FIR. After registration of the FIR he was suspended from service on 11.10.1994 and departmental inquiry was conducted. He states that no charge of forgery of receipt was against him and after the inquiry report Exhibit DW1/B he was reinstated in service in 2006. However, in his cross-examination he has admitted that the said inquiry report is not about the allegation levelled against the accused in the present case.
15 I have heard the arguments of the Ld. APP for the State as well as the accused and have gone through the entire record carefully.
16 Firstly, the accused has been charged for offence under Section 409 IPC FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 5/20 i.e. Criminal Breach of Trust by a Public Servant wherein a graver punishment has been provided for commission of criminal breach of trust in respect of a property which has been entrusted to him in the capacity of a public servant. Criminal Breach of Trust has been defined in Section 405 IPC as Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
The two most important ingredients in order to complete the offence of Criminal Breach of Trust include:
a) Entrustment of property -It refers to handing over of a property while continuing to be the owner thereof in a manner so as to create a fiduciary relationship between the person handing over and the person taking over.
b) Dishonest Misappropriation/Conversion to his own use - This misappropriation must be dishonest causing wrongful gain or wrongful loss to a person. It is important to establish that the accused misappropriated/converted the property for his own use or to some unauthorized use.
17 The offence as described under Sec. 409 IPC is a graver form of criminal breach of trust as the liability is being attached to a public servant who has a special responsibility as well trust reposed on him by the members of public. Under this section, the entrustment of property should be in the capacity of the accused as a public servant.
18 It is an admitted fact that accused was a public servant. Now to prove the offence u/s 409 IPC, the prosecution has to prove that the accused dishonestly misappropriated or converted to his own use, the property i.e the amount of Rs. 6935/- and Rs. 4737/-. PW8 Sh. Brij Mohan is the main witness of the prosecution. He has deposed that on 20.10.1993 he had deposited the FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 6/20 house tax against his own property as well as property of his brother to accused Prabhat Suman Sehgal. He deposed that he had deposited the amount of Rs. 6935/- and Rs. 4737/- as house tax and the accused gave the receipt of the payment of that amount. He showed the said receipts to Amar Singh, who verified the ledger and record and told the PW8 that the entry has not been made in ledger nor the money has been deposited with the Government. Then, he came to know that the said receipts were fake and forged receipts. He correctly identified both the said receipts.
19 It is pertinent to mention here that the order sheet dated 29.05.2002 shows that on that day, the accused was absent and an exemption application was moved on his behalf. In the said order sheet it has also recorded that the identify of the accused is not disputed as the FIR is by name and the application was allowed with the condition that the accused would not be disputing his identity and thereafter, the testimony of PW8 and PW9 were recorded. PW9 Sh. Subhash Chand also deposed that his brother Sh. Brij Mohan had deposited the house tax of Rs. 4737/- pertaining to his property. However, in the cross-examination, PW9 deposed that he himself went to deposit the house tax.
20 The element of entrustment is a pre-requisite for constituting the offence of Criminal Breach of Trust. PW8 Brij Mohan has deposed empathetically on oath that he had deposited the house tax to the accused, who was the pubic servant. MCD has entrusted the public servant to account the collected money in the ledger book and register.
21 Ld. Defence counsel has argued that entrustment has not been proved in the present case. He further argued that as per provisions of Section 405, 406, 408 and 409 of Indian Penal Code, "Entrustment" is an essential ingredient for the offences under aforesaid sections of Law because in the matters of Jeewan Dass Vs. State of Haryana (1992)2SCC: 530, Dibyandhu Goswami Vs. Uttara Chaudhary, 1999(4) Crimes 42 and also in the cases decided by Hon'ble High Courts in AIR 1956, All. 619 (626), AIR, 1940, Mad. 329 (336), it FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 7/20 has been held that in the prosecution for offence of criminal breach of trust, if there is absence of legal and independent evidence with regard to the Entrustment then, it would be improper either to put a question with regard to the Entrustment to the accused and if put and an answer is obtained partially admitting Entrustument, the same does not establish the case of Entrustment.
22 I have gone through the authorities filed by the Ld. Defence counsel. However, the facts and circumstances of the present case are entirely different. PW8 Brij Mohan has deposed empathetically on oath that he deposited the house tax money. MCD has entrusted the accused to collect the same and then account it in Ledger Book and register. It has been argued by the Ld. Defence counsel that PW8 Brij Mohan is sole eye-witness to the effect that amount of Rs. 6935/- and Rs. 4737/- was deposited and forged receipts Exh. PW2/A and Exh. PW2/B were issued. However, in my view conviction can be based upon the testimony of a sole eye witness if his testimony is clear, coherent and reliable.
23 It is the quality of the evidence and not the quantity which is to be seen. The Hon'ble Supreme Court in judgment titled as "Ramesh Krishna Madhusudan Nayar Vs. State of Maharashtra" reported in 2008 Crl. LJ 1023 upheld a conviction under Section 302 IPC based on the sole testimony of a witness. The Court held that "on the basis of a solitary evidene conviction can be maintained. It made a reference to Section 134 and held that no particular number of witnesses are required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained." Reference in this regard can also be made to "Jamil & Ors. Vs. State of Rajasthan through PP" RLW 2007(4) RAJ 3373 wherein, it was observed that if sole testimony is found to be trustworthy and unshaken and there is no reason to disbelieve it, then, it can be taken that it FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 8/20 has established the prosecution's case beyond reasonable doubt. Thus, testimony of complainant, which finds support and corroboration from medical evidence, is sufficient to establish the charge against accused. It would be grossly unfair to reject the testimony of complainant and the medical evidence merely because cited independent witness did not support the prosecution's case.
24 PW-8 has deposed empathetically on oath that he has deposited the amount of Rs. 6935/- and Rs. 4737/- as house tax to the accused Prabhat Suman Sehgal. PW4 and PW6 have proved that Brij Mohan has come with the receipt Exh. PW2/A and Exh. PW2/B. Therefore, testimony of Brij Mohan is clear, coherent and finds corroboration in testimonies of other witness. In the present case, the FIR has been made in name by Sh. Karan Singh. PW8 Brij Mohan also testified that the accused had issued property tax receipts Exh. PW2/A and Exh. PW2/B to him against the said payment and when he checked with one UDC namely Amar Singh, he found that the amount so deposited by him has not been accounted in the ledger or in the Register. Hence, in view of the aforesaid discussion, it can safely be concluded that the accused was entrusted by the MCD of the amount so collected. Therefore, it is crystal clear that accused collected the amount pertaining to MCD, but misappropriated the same to his owner as the amount was not accounted for in the ledger and register. PW 6 Lalit Kumar has deposed that one assessee came to Amar Singh and shown him two property tax receipts but the entry of the said payment has not been made in the register. He also recalled the name of that assessee to be Brij Mohan in cross-examination by Ld. APP for the state. He further deposed that when the inquiry of those receipts started, accused Prabhat Suman Sehgal left the office without information. He also identified the receipts Exh. PW2/A and Exh. PW2/B which were brought by Brij Mohan.
25 Now the question is narrowed down to the effect that whether the accused dishonestly misappropriated the same and then, making him guilty for the offence u/s 409 IPC. The aforesaid question require the common discussion as to whether the accused acted with dishonest intention and induced the PW8 FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 9/20 Brij Mohan to deliver him the property i.e amount of Rs. 6935/- and Rs. 4737/-, thus, making him liable for conviction u/s 420 IPC. Therefore, both the aforesaid points are dealt herein together.
26 Section 420 IPC, Cheating and Dishonestly inducing delivery of property, provides that:
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.
For the purpose of constituting an offence of cheating as defined under section 415 IPC, the following ingredients must be proved:
a) Deception of a person - by words or conduct in such a way that the person believes what is false as true or disbelieves what is true. Such deception can be by words or conduct.
b) Fraudulent/dishonest inducement - such inducement must lead to either delivery of property or doing of an act/omission which he would not have otherwise done but for the deception.
c) Damages - the above said deception must cause or should be likely to cause damage/harm to the person deceived in body, mind, reputation or property.
27 For the offence u/s 420 IPC it has to be seen that the accused has dishonestly induced the person to deliver any property to him. PW8 Brij Mohan has deposed empathetically on oath that he had deposited the house tax of Rs. 6935/- and of Rs. 4737/- to the accused and when he came to check, he was told by UDC Amar Singh that the said amount was not entered in ledger book or in the Register. PW6 Sh. Lalit Kumar also proved that in the year 1993 one assessee came to Amar Singh and shown him two property tax receipts and asked Amar Singh that he had paid the payment of said tax receipts. Amar Singh checked the record and found that no entries were made in the register.
FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 10/20 He was also examined by the Ld. APP for the state in which he has deposed that the person who had brought the said receipts no. 764618 and 764619 was Brij Mohan. He also deposed that Brij Mohan told him that he had deposited the said payment with the accused.
28 PW4 Sh Karan Singh deposed that he had examined and came to know that the receipts no. 764018 and 764019 have been deposited in Treasury in May 1993 for the amount of Rs. 200/- and Rs. 50/- respectively and as per record G-8 receipt no. 76401 and 764100 were issued in the name of P.S. Sehgal, who also identified the accused as present in the Court that day. He further deposed that G-8 reeipt no. 764018 and 764019 were not prepared and issued to the concerned official. He checked and found that though such receipts no. 76401 and 764100 were issued but the same were not the original receipts and were not prepared and issued by the official concerned. Indeed the receipts no. 764018 and 764019 were forgedly issued and therefore, the FIR was lodged. PW2 Sh. Nand Lal has also proved that actual receipt no. 764019 and 764018 of Rs. 200/- and Rs. 50/- respectively have been issued in his handwriting and he further deposed that the documents Exh. PW2/A and Exh. PW2/B does not bear his signature.
29 Ld. Counsel for the accused has argued that there are certain discrepancies in the testimony of PWs. PW9 Subhash Chand has deposed that he himself went to deposit the house tax whereas, PW8 deposed that he has deposited the house tax pertaining to the properties of himself and his brother i.e PW9. Further, it is argued by the Ld. Defence counsel that the testimony of PW4 Karan Singh should not be believed in as in the cross-examination he has deposed that he cannot tell without going into the record as to when the G-8 receipt book was issued and only record clerk can tell. In the examination-in- chief he has deposed that G-8 receipt book from No. 76401 to 764100 was issued in the name of P.S. Sehgal. There are number of cases, in which i t has been held that some discrepancies are bound to occur in the criminal cases. The Hon'ble Supreme Court in the case titled as Blal Bahadur and ors Vs State of NCT of Delhi 2013 IV AD (SC) 416. Para 19 of the said judgment is FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 11/20 relevant which is as follows:-
"So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses as pointed out by the counsel for the appellants , are concerned, we have gone through the entire evidence and found that the evidence of the witnesses can not be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses can not be ground to discard the testimony of the eye witness who is none else but the widow of the one deceased . Further, relationship can not be a factor to affect credibility of a witness. In the case of State of Uttar Pradesh Vs Naresh & Others (2011) 4 SCC 324, the Court observe:-
" 30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation,namely , errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence can not be safe to rely upon. However, minor contradictions , inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Mere marginal variations in the statements of a witness can not be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 12/20 30 As noticed above, those minor discrepancies would not go to the root of the case and shake the basic version of the witnesses when as a matter of fact important probabilities, factor, echoes in favour of the version narrated by the witnesses. It has also been held by the Apex Court in case of Bharwada Bhoginbhai Hirjibhai Vs State of Gujrat (1983) 3 SCC 217 held that much importance cannot be attached to minor discrepancies as witnesses do not have photographic memory.
31 Also in the case titled as Leela Ram (dead ) through Duli Chand Vs State of Haryana and Anr., (1999) 9 SCC 525, the Court observed:-
" The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. It this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however, in the absence of the same.
On the touchstone of the above said principles, it is abundantly clear that minor exaggerations or embellishment in the evidence of witnesses are bound to happen and it is the duty of the Court to sift the chaff from the grain and find out the truth from the testimony of the witnesses."
32 Therefore, keeping in view the aforementioned principle of law in mind, I am of the opinion that the discrepancies in the testimony of PW 4 Karan Singh, PW8 Brij Mohan and PW9 Subhash Chand are minor one and they are not of substantial nature which would discredit the whole testimony of the witness. PW4 Karan Singh was examined-in-chief on 22.01.2001 and cross- examined on 06.04.2005, after a long gap of approximately four years. He also deposed that he has suffered paralysis. Therefore, the discrepancy regarding as to when the receipt book was issued would not create a major dent in the prosecution story. Similarly, the discrepancy in the testimony of PW8 Brij Mohan and PW9 Subhas Chand regarding as to whether the PW9 accompanied the PW8 when he was going to deposit the amount, is also not major one, as both the PWs have struck to their stand that property tax amounting to Rs. 6935/- and Rs. 4737/- was deposited through accused FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 13/20 Prabhat Suman Sehgal. Further, PW9 Subhash Chand in his examination-in- chief has clearly deposed that h e has given the amount to his brother for depositing the same in the MCD and it was only in the cross-examination, he has said that he himself went alongwith his brother to deposit the house tax. PW8 Brij Mohan has proved that he deposited the house tax to Prabhat Suman Sehgal and was issued by him two receipts Exh PW2/A and Exh. PW2/B. PW4 and PW5 have proved that they did not find the amount so collected vide receipts Exh. PW2/A and Exh. PW2/B accounted for in the ledger book or register.
33 In view of aforesaid discussion, it is crystal clear that accused acted in dishonestly and he induced the PW8 Brij Mohan to deliver him the amount of Rs. 6935/- and Rs. 4737/- , thus, cheated PW8 Brij Mohan making him guilty for the offence u/s 420 IPC. He further misappropriated the amount rightfully belonging to MCD, as he did not account the said amount in the ledger book or the register and thus, making him liable for the offence u/s 409 IPC.
34 Coming now to the offene u/s 468/471 IPC. Section 468 provides punishment for committing Forgery for the purpose of Cheating. The accused has been charged with Section 471 titled as Using as genuine a forged document provides that :
Whoever fraudulently or dishonestly uses as genuine any docu- ment which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.
The most important component to prove the charge under above two sections is the act of forgery to have been committed by the accused herein. Section 463 of the IPC defines Forgery as Whoever makes any false documents or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 14/20 with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, com- mits forgery.
It is also important to reproduce here Section 464 (first clause) which describes as to what constitutes making a false document. The first clause of this section is relevant for our purpose in the present case as the accused is al- leged to have made false tax receipts. It provides that:
A person is said to make a false document-
First- Who dishonestly or fraudulently makes, signs, seals or exe- cutes a document or part of a document, or makes any mark denot- ing the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or In the recent case of Ram Narain Poply, Pramod Kumar vs Central Bureau Of Investigation (AIR 2003 SC 2748) the Apex Court held that
93. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document fase (ii) is it made by the accused and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty.
35 In order to examine the offence of forgery, it is important to peruse the receipts issued to PW8 Brij Mohan against the payment of the house tax amount. PW6 Lalit Kumar in his evidence has identified the initials of the ac- cused on the receipts and stated that he recognizes them as he has seen him making the same in the discharge of his official duties. Under section 47 of the Indian Evidence Act, 1872, relevancy of opinion on handwriting has been men- tioned. It provides that-
FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 15/20 When the Court has to form an opinion as to the person by whom docu- ment was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.
36 PW6 Lalit Kumar has identified the initials of the accused on the receipts. However, he has also deposed that he cannot identify the handwriting of the accused. Further, three categories of documents were sent to the FSL for examination - the original receipts (Q1 and Q2), the admitted writings (A1 to A5) and specimen writings (S1 to S3). The report clearly mentions that :
The person who wrote red enclosed writings stamped and marked S1 to S3 and A1 to A5 also wrote red enclosed writings similarly stamped and marked Q1 and Q2 for the following reasons:.......
37 Hence, the report from the FSL is conclusive on this aspect that the handwritings are matching. However, the Learned Defence Counsel has argued that the said report is inconclusive as it mentions in the end that opinion on Q1 and Q2 in comparison with A1 to A5 (Xerox Copies) is subject to verification from the original documents. It has also been argued by the Learned Defence Counsel that the specimen samples (S1 to S3) were not taken with the permission of the Court and hence, they are not to be looked into for the purposes of evidence.
38 Ld. Defence counsel has also placed reliance upon one case of Hon'ble High Court of Delhi in its judgment 'Ramesh Kumar Vs. State" dated 12.12.2003 in which cases referred i.e AIR 1955 SC 2169(6)(1994) 5 SCC 152 (Relied Para 17) and IV(2003) SLT 946 (Referred Para 18), in which it has been FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 16/20 held that that specimen signatures/writing cannot be taken without the permission of the Court. The Hon'ble High Court of Delhi in its recent decision dated 25.05.2012 titled as Sapan Haldar & anr. vs. State held that:
27. Thus, with respect to a handwriting obtained from a person accused of having committed an offence or from any person during investigation, the law is entirely different vis-à- vis finger print impressions and a handwriting. With respect to handwriting neither can the investigating officer obtain a sample writing nor can even a Magistrate so direct.
However, even if we do not take the specimen handwriting into consideration, there is admitted handwriting of the accused as taken by the IO as well. IO could have collected admitted handwriting of the accused at any point of time which does not require any permission. Further, the fact that IO has collected and sent the admitted handwriting of the accused is proved from FSL report itself, which can be read in evidence in view of Sec. 293 Cr.P.C. FSL Report clearly states that handwriting on the Exh PW2/A and Exh PW2/B (Q-1 and Q-2) are matching to admitted handwriting (A-1 to A-5).
39 Keeping in view aforesaid discussion, the FSL result can be read in evidence in view of Sec. 293 Cr.P.C on the aspect of admitted handwriting. Further, PW6 Lalit Kumar has also identified the initials of the accused on receipts. PW2 Nand Lal has deposed empathetically on oath that he has prepared the receipts no. 764019 and 764018 for the amount of Rs. 200/- and Rs.50/-. He has not prepared the document Exh. PW2/A and Exh. PW2/B. I have already discussed in detail that PW Lalit Kumar and PW Amar Singh have proved that after examination, they found that the receipts no. 764018 and 764019 for the amount of Rs. 6935/- and Rs.4737/- were forged and fabricated. Further, help can be taken from the judgment of Hon'ble Supreme Court of India in which it has been held that, the beneficiary of the forged document is presumed to be the maker of the same. It was held in Hon'ble Supreme Court of India in Bank of India Vs. Yeturi Maredi Shanker Rao and Anr. AIR 1987 SC 821 that :
"These facts therefore, clearly establish that the respondent-accused used the forged document and on the basis FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 17/20 of that document obtained money to which he had no claim and thereby caused wrongful gain to himself and wrongful loss to PW-1. It is also clear from the evidence that PW1 used to take the assistance of the accused-respondent whenever she wanted to have any transaction in the Bank and therefore, it is expected of him to have known the signatures of PW1. Apart from it, there is nothing to establish as to from where the respondent-accused got these withdrawal forms. Under these circumstances, it could not be doubted that he used these withdrawal forms knowing them to be forged or at least believed them to be forged and therefore, it could not be said that he could not be convicted for an offence under Section 471.
As regards the offence under Section 467 r/w Sec. 109, the Ld. High Court acquitted the respondent because it came to the conclusion that there is no evidence to establish as to who forged the signatures of PW1 on the withdrawal form. It is no doubt true that so far as the evidence about the forgery of the signatures of PW1 on the withdrawal form is concerned there is no evidence except the fact that the signatures are forged and the further fact that this withdrawal form was in the possession of respondent-accused, who presented it in the Bank and obtained money therefrom and pocketed the same. From these facts an inference could safely be drawn that it was the respondent- accused who got signatures of PW1 forged on this document."
40 In the above mentioned case, the Hon'ble Supreme Court of India has clearly held, the beneficiary of forged documents to be liable for conviction u/s 471 IPC even if there is no direct evidence for the same. In our case, PW6 has identified the initials on Exh. PW2/A and Exh. PW2/B. FSL report also says that the handwriting on Exh. PW2/A and Exh.PW2/B ie Q-1 and Q-2 is matching to the admitted signature and handwriting of the accused. In view of the aforesaid there left no iota of doubt that accused made these forged documents Exh .PW2/A and Exh. PW2/B and used them as genuine and on the basis of these two documents obtained money to which he had no claim and thereby, caused wrongful gain to himself and wrongful loss to MCD, which directly makes him liable for the conviction u/s 468/471 IPC.
41 In the statement u/s 313 Cr.P.C accused has taken the stand that he has falsely been implicated in the present case. He also examined himself in his defence and deposed that Departmental Enquiry pending to this matter is Exh. DW1/B and he was found not guilty of forgery. He was cross-examined by FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 18/20 the Ld. APP for the state and he admitted that Exh. DW1/B pertains to some other inquiry against him and not the one pertaining to this case. Accused has also taken the stand that PWs have deposed falsely and falsely implicated him in the present case. However, no evidence has been brought on record to bring motive for which the PW Brij Mohan or any other PW would depose against him. Absolutely, nothing has been brought on record to discredit the testimony of PWs. Therefore, reliance can be placed upon their testimonies.
42 Before parting the judgment, I would also like to cater the anxiety of Ld. Defence counsel that whole case of prosecution has lost its value as the IO has not been examined. However, there are number of judgment in which it has been held that when there is no prejudice caused to the accused and there is ample evidence to prove the offences as charge sheeted then, even if the IO has not been examined would not be fatal to the case. The Hon'ble Supreme Court of India, in Birendra Rai and Ors. Vs. State of Bihar, 2005 (1) ALD(Crl.) 333, 2004(3) BLJR 2322, [2005(2)JCR38(SC)], 2004 (10)SCALE94, (2005)9SCC719 wherein, it has been held that:
"It was then submitted that the investigating officer was not examined in this case and that has resulted in prejudice to the accused. Having gone through the evidence of witnesses and other material on record, we do not find that any prejudice has been caused to the defence by non-examination of the investigating officer. The mere fact that according to the seizure list a stick with blood stains and pellet marks was seized from the place of occurence, would not advance this argument any further. The seizures have not been proved in this case because the investigating officer was not examined, and the seizure witness has turned hostile. We, therefore, ignore the seizures made and base our decision on the other evidence and the evidence of two eye witnesses, who have impressed us as truthful."
43 In view of aforesaid discussion, I am of the view that non-examination of IO has not been fatal in the facts and circumstances of the present case as there are ample evidence to prove the prosecution's case and no prejudice has been caused to the accused.
FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 19/20 44 In view of above discussion, the accused Prabhat Suman Sehgal is hereby held guilty for the offences punishable u/s 409/468/471/420 of IPC and is accordingly convicted for the same.
Let him be heard on the point of sentence.
Announced in the open court Today on 31.08.2015 (Ambika Singh) Metropolitan Magistrate-06 Central District : Tis Hazari Courts: Delhi FIR No. 87/1994 PS Sadar Bazar State Vs Prabhat Kr. Sehgal 20/20