Delhi District Court
State vs . Bal Ram Tiwari Etc. on 24 January, 2013
IN THE COURT OF MS. NAMRITA AGGARWAL
METROPOLITAN MAGISTRATE, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
STATE Vs. Bal Ram Tiwari etc.
FIR No.: 209/1996
U/s. : 420/468/471/34 IPC
P.S. : Vasant Vihar
JUDGMENT :
1. Sl. No of the case : 279/1
2. Date of institution : 07.09.1996
3. Date of the commission of the offence : 08.07.1996
4. Name of the complainant : Sh. Rajesh Bhola,
Senior Branch Manager Bank
of Baroda, C Block Market,
Vasant Vihar,
R/o 573/7 Gurgaon, Haryana.
5. Name of the accused : 1) Balram Tiwari
S/o Krishan Parkash Tiwari,
VPO Maugimabad,
PS: Husain Ganj,
Distt. Fathepur, U.P.
2) Karunakar Joshi (P.O.)
S/o Govind B. Joshi,
R/o Distt. Pithoragarh,
FIR No. 209/96 PS: Vasant Vihar 1/10
P.O. Jhulaghat,
H.A. Battery, Vill. Bara
Salana Hulaully, Pithordu
Katpatti, Panjara, Nepal
6. Offence complained of or proved : u/s 420/468/471/34 IPC
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of reservation of order : 16.01.2013
10.Date of such order : 24.01.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. This case is a perfect example of a situation where a person from a very small village, lured by the hustle bustle of a city life comes to city in search of employment and here he falls prey of the evils of city life. The same happened with accused Balram Tiwari.
2. Accused Bal Ram Tiwari and Karunakaran Joshi were charged u/s 420/468/471/34 IPC to which they pleaded not guilty and claimed trial.
3. The prosecution case is that on 08.07.1996 at an unknown time at Bank of Baroda Branch of Vasant Vihar, accused Balram Tiwari and accused Karunakan Joshi (P.O.) tried to encash a cheque bearing No. FIR No. 209/96 PS: Vasant Vihar 2/10 120163 amounting to Rs.40,000/ by presenting the same at the counter. The said cheque bore the forged signatures of one Anita Lal i.e. the authorised signatory of M/s Eicher Good Earth Ltd. On suspicion the Sr. Manager of Bank of Baroda confirmed from M/s Eicher Good Earch Ltd. regarding the said cheque to which they replied stating that no such cheque was ever issued by their company. The accused persons were apprehended and complaint was made to the police.
4. After the completion of the investigation, charge sheet was filed against both the accused persons i.e. Balram Tiwari and Karunakan Joshi by the IO. Charge u/s 420/468/471/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial. Later, accused Karunakaran Joshi was declared P.O. vide separate order.
5. Prosecution examined six witnesses in its support. PW1 HC Balwan Singh registered the FIR, copy of which is Ex.PW1/A on the handing over of complaint by Mr. Rajesh.
6. PW2 Ct. Laxmi Narain stated that on the date of incident two persons were produced before the IO by Senior Manager of the Bank of Baroda. Disclosure statements of the accused persons vide memos FIR No. 209/96 PS: Vasant Vihar 3/10 Ex.PW2/A and Ex.PW2/B were recorded and their personal search was conducted vide memos Ex.PW2/C and Ex.PW2/D respectively. During cross examination, PW2 negated the fact that no disclosure of any of the accused persons was recorded in his presence.
7. PW3 Ms. Malvika Dhar who was working as a Probationary Officer in the Bank of Baroda at the time of incident stated that one person had come to the bank with a cheque of Rs.40,000/ and presented the same for encashment at the counter. The clerk at the counter brought the said cheque to PW3 and on suspicion the said cheque was referred to Sr. Branch Manager.
8. PW4 i.e. the complainant Mr. Rajesh Bhola who was working as a Sr. Manager in Bank of Baroda at the time of incident stated that one cheque of Rs.40,000/ was presented for encashment by accused Karunakaran Joshi at the counter of the bank. On confirmation with the issuer of the cheque i.e. M/s Eicher Good Earth Ltd. it was informed that no such cheque was ever issued by the said company. Thereafter, complaint Ex.PW4/A was made. Accused Balram Tiwari had visited the bank after sometime to find out why Rs.40,000/ was not yet encashed and was apprehended. He further stated that earlier on two occasions cheque FIR No. 209/96 PS: Vasant Vihar 4/10 Ex.P2 and P3 were already got enchashed by both the accused persons. During cross examination, PW4 stated that he had not mentioned in his complaint Ex.PW4/A, the fact that accused Balram Tiwari had visited the bank after some time to find out the reason for delay in encashment of cheque Ex.P1. He also stated that the said cheque was not presented for encashment in his presence.
9. PW5 Mrs. Anita Lal i.e. the authorised signatory of M/s Eicher Good Earth Ltd. stated that she had not signed the cheque Ex.P1 to P4.
10. PW6 Inspector Raj Kumar stated that on 08.07.1996 both the accused persons were produced by complainant Rajesh Bhola at the PS. They were interrogated and their personal search was made vide memos Ex.PW2/C to Ex.PW2/F. Their disclosure statement was recorded vide memo Ex.PW2/A and Ex.PW2/B respectively. Specimen signatures of both the accused persons were taken vide memo Ex.PW6/A. The forged cheques Ex.P1 to P3 and the forged requisition slip Ex.P4 were seized vide memo Ex.PW4/B. Specimen signatures of Ms. Anita Lal were taken vide memo Ex.PW6/C. During cross examination, this witness stated that he was not aware as to whether accused Balram Tiwari was apprehended from the bank or was lifted from his house. He also stated that nothing FIR No. 209/96 PS: Vasant Vihar 5/10 was recovered from the possession of accused Balram Tiwari and that no amount was withdrawn by the said accused from the bank. PE was closed.
11. The accused Balram Tiwari denied all the incriminating evidence put to him in his statement U/S 313 Cr.P.C stating that he has been falsely implicated and pleaded innocence.
12. Since, the accused did not lead any defence evidence, the matter was fixed for final arguments. Final arguments were heard.
13. PW2 is a formal witness as this witness stated that both accused were produced before IO by Sr. Manager of Bank of Baroda. However, this witness had not seen the accused Balram Tiwari presenting the cheque for encashment at the counter. He had not even seen the place from where the accused was apprehended.
14. PW3 Ms. Malvika Dhar stated that the alleged cheque bearing No. 120163 dated 08.07.1996 amount of Rs.40,000/ was presented to clerk who gave cheque to PW3 for verification. On suspicion call was made to M/s Eicher Goods Earth Ltd. i.e. the issuer of the cheque who denied having issued any such cheque. This witness also had not seen the person who had presented the alleged cheque Ex.P1 for encashment at the FIR No. 209/96 PS: Vasant Vihar 6/10 counter of the bank.
15. PW4 Mr. Rajesh Bhola who was working as Sr. Manager in Bank of Baroda made complaint Ex.PW4/A to the police on the basis of which FIR was registered. This witness deposed that on 08.07.1996 accused Karunakaran Joshi had presented the alleged cheque Ex.P1 for encashment at the bank. The only role attributed to accused Balram Tiwari by this witness in his chief examination is that accused Balram Tiwari came to Bank on 08.07.1996 for checking the reason for delay in encashment of cheque presented for encashment by Karunakaran. However, during cross examination, this witness clearly stated that he had not attributed any role against accused Balram Tiwari in his complaint Ex.PW4/A, thus showing that role attributed to accused Balram Tiwari in the entire transaction was an after thought. He also stated that cheque Ex.P1 was not presented before him but before the counter clerk. Now, this counter clerk has nowhere been made a witness by the IO who could have stated as to who exactly was the person who had presented the cheque Ex.P1 to him for encashment. Moreover, PW4 stated in his evidence that he made a call to police and IO reached the bank within 10 minutes. However, IO clearly stated in his evidence that both the accused FIR No. 209/96 PS: Vasant Vihar 7/10 persons were presented before the IO on 08.07.1996 in the PS itself. This is a major contradiction in the statement of PW4, thus making statement of PW4 unreliable. In Sanjay Kumar Gupta Vs. State of Government of NCT 2009 (4) JCC 2544, it has been held that if testimonies of witnesses are inconsistent on crucial aspects then such testimonies become unreliable.
16. PW5 Ms. Anita Lal being the Director/authorized signatory on behalf of M/s Eicher Good Earth Ltd. stated that she had not signed any cheque Ex.P1 to Ex.P4 and that her signatures on those cheques were forged. Now as per the FSL report, the person who forged the signatures of Ms. Anita Lal could not be determined. The only incriminating evidence against accused Balram Tiwari in the FSL report was that the cheque Ex.P2 and requisition slip Ex.P4 bore signatures of Balram Tiwari at the back side. However, this does not bring out any case against Balram Tiwari as he had not forged signatures of authorised signatory of any other person in the questioned documents. Further, as per FSL report, the name of Balram Tiwar as payee in Ex.P2 and also signatures of Ms. Anita Lal was made by accused Karunakaran and not Balram Tiwari. Moreover, handwriting expert did not appear before the court despite several attempts. The FIR No. 209/96 PS: Vasant Vihar 8/10 subject of opinion as to the authorship of handwriting is not an exact science. The report is nothing but an opinion and therefore, examination of handwriting expert is necessary to prove the report, which has not been done in the present case.
17. PW6 is the IO. There is material contradiction between statement of IO and complainant regarding the place where accused were produced before the IO by the complainant. Further, IO clearly stated that accused Balram Tiwari was not apprehended in his presence nor any recovery was made from him. No amount was recovered from the possession of accused Balram Tiwari.
18. In light of the above discussion, essential ingredients of section 420/ IPC i.e. dishonest inducement by the accused and also wrongful gain to the accused has not been proved against accused Balram Tiwari as it is clear from the statement of the witnesses that accused Balram Tiwari had not presented the cheque Ex.P1 at the counter of the bank for encashment nor did he receive any amount from the bank. Even offence of forgery is not made out against accused Balram Tiwari as there is nothing on record that he had forged the signatures of the authorised signatory of M/s Eicher Good Earth Ltd. on the cheques or the requisition slip. In order to prove FIR No. 209/96 PS: Vasant Vihar 9/10 the case against the accused persons, the prosecution should stand on its own leg. In the present case, prosecution miserably failed to establish the essential ingredients of the alleged offenes against the accused Balram Tiwari.
19. Keeping in view the facts and circumstances, accused Balram Tiwari is acquitted for offences u/s 420/468/471/34 IPC. Fresh personal bond of the accused Balram Tiwar is furnished and accepted for a period of six months u/s 437A Cr.P.C, as amended.
Announced in the open court (NAMRITA AGGARWAL)
on 24.01.2013 METROPOLITAN MAGISTRATE
Judgment contains 10 pages SOUTH DISTRICT/SAKET COURTS
and all pages are signed NEW DELHI
FIR No. 209/96 PS: Vasant Vihar 10/10