Delhi District Court
Harish Bindal S/O Sh. Nunia Mal vs State Of Nct Of Delhi on 2 August, 2011
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IN THE COURT OF SH. S. K. SARVARIA DISTRICT JUDGE AND
INCHARGE ADDL. SESSIONS JUDGE (N/W)
ROHINI DISTRICT COURTS: DELHI
C.R. No. 51/2011
1. Harish Bindal S/o Sh. Nunia Mal
R/o Kath Mandi, Hisar .... Petitioner no.1
2. Tarun Bindal S/o Harish Bindal
R/o Kath Mandi, Hisar .... Petitioner no.2
VERSUS
State of NCT of Delhi. .... Respondent
Date of institution: 02.06.2011
Date when arguments were heard: 25.07.2011
Date of order: 02.08.2011
JUDGMENT
1. This revision petition is filed by the two petitioners/accused persons who are father and son challenging the order dated 21.05.2011 passed by Ld Metropolitan Magistrate (North West) (in short Ld M.M) by which Ld M.M directed framing of the charges under Sections 467/471/34 IPC against both the Harish Bindal Vs State :2: petitioners. In addition Ld M.M directed framing of charge under Section 379 IPC against petitioner no.1 Harish Bindal. The charges were accordingly framed on the same day for the said offences. By the same order dated 21.05.2011, Ld M.M discharged the accused persons of the offences under Sections 420 and 506 IPC by holding that these offences were not prima facie made out against the petitioners. Aggrieved with the impugned order of learned M.M holding that prima facie the charges (which were framed) were made out against the accused persons, the petitioners have filed the present revision petition for setting aside the impugned order dated 21.05.2011 and also the charges framed against them.
2. Brief facts of the prosecution case are that the petitioners in furtherance of their common intention forged cheques bearing Nos. 830615 and 830616 drawn on Canara Bank, Kamla Nagar, Delhi which were stolen by petitioner no.1. It is also alleged that these four cheques were subsequently used by the petitioners by presentation in the bank as genuine cheques knowing and having reasons to believe the same as forged cheques.
3. The arguments on behalf of petitioners are that the petitioner no.1 and his family members extended loan of total amount of Rs 64 lakhs to the Harish Bindal Vs State :3: complainant Sh. P.C. Minda, Managing Director of M/s Jay Switches (I) Pvt Ltd (in short said company) The petitioner no.1 is soninlaw of the complainant and the petitioner no.2 is son of petitioner no.1. This entire amount of Rs 64 lakhs was given by account payee cheques which fact is admitted by complainant in his statement under Section 161 Cr.P.C dated 28.05.2006 given to the Investigating Officer (in short IO). Even the income tax record of petitioners on judicial file supports this fact. On 01.04.2001, the complainant's company entered into a written agreement cum MOU for consultancy and development of new products with petitioner no.2 who is Mechanical Engineer. The said agreement cum MOU was duly executed by the parties and the petitioner no.2 was made Director of the said company. The complainant issued post dated cheque to the petitioner no.2 on 25.09.2003 bearing cheque no. 830616 dated 15.01.2005 of Rs 2.5 crores on account of commission along with confirmation letter on the letter head of the said company. The cheque on presentation to the bank was dishonoured and petitioner no.2 had to file a complaint under Section 138 of Negotiable Instrument Act (in short Act) before concerned criminal court in Hissar, Haryana. The plea of complainant that the loan amount stood repaid by cash and cheque is not acceptable as there was no cash withdrawal during relevant period from bank account of complainant. The repayment of loan about Rs 20,000/ is impermissible as per Section 269 T of Income Tax Act, 1961.
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4. The complainant also issued a cheque bearing no. 830615 in sum of Rs 1 crore to the petitioner no.1 for repayment of the loan amount along with interest. The said cheque on being presented by petitioner no.1 got dishonoured and a complaint under Section 138/141/142 of the Act was filed by petitioner no.1 against the complainant and others. The copies of these complaints are in the file of Ld trial court.
5. The arguments are that the letter issued by Canara Bank on 08.02.2008 to the IO shows that the cheque no. 830614 was issued on 22.09.2003 and the cheque bearing no. 830617 was issued on 27.09.2003 which shows that the cheques bearing nos. 830615 and 830616 which fell in between these two cheques were issued on 25.09.2003 as per case of the accused persons, almost at the same time when the previous and subsequent cheques were issued by complainant from the same cheque book of the bank. It is argued that complaint is filed by the complainant as a counter blast to the complaint under Section 138 of the Act by petitioner no.2 on 28.02.2005 so the petitioners have been falsely implicated.
6. It is argued that Ld M.M erred in law and failed to take notice of the Harish Bindal Vs State :5: fact that anonymous and false NCR dated 18.12.2003 was recorded three months after the delivery of impugned cheques no. 830615 and 830616 to the petitioners on 25.09.2003 to defeat their claim. The public notices in the newspaper were given by the complainant and also his son, both reporting respective loss of bags with identical contents in the evening of 18.12.2003 at the same time in a similar incident containing exactly similar contents which shows deliberate and collusive attempt to fabricate false evidence. It is also argued that the bank was asked to stop payment after 96 days after report of NCR dated 18.12.2003.
7. The contention on behalf of petitioners is that Ld M.M did not consider that in the NCR, the complainant has not shown that the petitioner no.1 was with him and has also not considered that there is no mention of presence of signed cheques, signed papers, signed stamp papers, signed letter head in the alleged lost bag in the said NCR. There is also no mention of serial number of cheques in the said NCR so the charge of commission of theft against petitioner no.1 is not made out. It is argued that Ld M.M erred in law in not considering that handwriting experts opinion is not supported with enlarged photograph of compared writings. The verification of handwriting is not a perfect science and opinion of handwriting expert is not reliable, particularly when one Harish Bindal Vs State :6: of the cheques used by handwriting expert was photostat copy which has no legal sanctity.
8. It is also argued that Ld M.M erred in law in appreciating the erroneous presumption that blank cheque could not be given with confirmation letter as Section 20 of the Act falsify such assumption. It is argued that the complaint was drafted after due deliberation and consideration of facts and law by good lawyers of repute on which direction under Section 156(3) Cr.P.C was passed by Ld M.M for registration of case. Even thereafter IO recorded six different supplementary statements under Section 161 Cr.P.C of complainant to improve the version of complainant to try to fill up the lacunae and loop holes from 21.03.2005 to 23.05.2008 from date of filing complaint till completion of investigation. The entire subsequent statements of complainant are doctored and tutored and do not corroborate with the complaint. It is argued that the statement of Sh. Ajay Kumar and Sh S.K Mangla allegedly recorded under Section 161 Cr.P.C cannot be relied upon to frame charges. At the relevant time of alleged loss of bag petitioner no.2 was away to Japan therefore, common intention cannot be attributed to him. When the acquisition of cheque is not by theft the charge of forgery is not sustainable so the petition should be allowed and impugned order holding prima facie case against the petitioner and framing Harish Bindal Vs State :7: of charges by learned trial court should be set aside.
9. The argument of learned Addl. Public Prosecutor assisted by Ld counsel for complainant are that the petitioners had approached Hon'ble High Court for quashing of FIR and after arguments at length, they withdrew the petition from Hon'ble High Court so the present revision petition is not maintainable, the petitioners having concealed this fact. It is contended that at the stage of framing of charge, the Ld trial court has to consider if prima facie case is made out or not. The complaint, statements of witnesses, documents on record and CFSL report corroborate each other to make out a case against the petitioners so the present revision petition is not maintainable.
10. It is argued that the complainant being a businessman used to be in tours often, therefore, as a precautionary practice he used to keep some blank signed cheques and papers with his trusted staff so that same may be used in emergency in his absence and the petitioners were well aware of this fact and took active advantage of the same in connivance of each other. The petitioners/ accused persons out of vengeance and greed hatched a conspiracy in a very calculative and planned manner and petitioner no.2 went abroad to Japan along with complainant's son. Thereafter as per their plan and taking advantage of Harish Bindal Vs State :8: absence of complainant's son, the petitioner no.1 found suitable opportunity and under mysterious circumstances successfully managed to steal the bag containing blank cheques and papers on 18.12.2003. The complainant realizing the gravity of said theft immediately informed the police about it at P.S Shalimar Bagh and lodged DD No. 60B dated 18.12.2003. He also promptly gave an advertisement in the newspaper public notice in both Hindi and English newspapers "Jan Satta" and "Indian Express" about loss of alleged cheques and papers. The complainant, on internal audit done, came to know of details of cheques stolen and informed the banker about the same on 25.03.2004. The complainant was shocked when he was informed by the banker that the said lost/stolen cheques had been presented for encashment of an unimaginable huge amount of Rs 2.5 crores by petitioner no.2 on 07.02.2005 and Rs 1 Crore by petitioner no.1. Receiving said information about fraud and forgery by petitioners the complainant made a complaint to SHO P.S Shalimar Bagh on 07.02.2005. He made a separate complaint against petitioners at P.S Roop Nagar Delhi and at the office of DCP (Vigilance office) North West, Ashok Vihar, Delhi. The local police did not initially properly investigate the matter so the complaint under Section 156(3) Cr.P.C was filed before Ld ACMM on 21.03.2005. On 29.06.2005 Ld M.M Sh. P.K. Jain passed order for registration of FIR which was registered bearing FIR No. 542/2005 on 03/07/2005 under Harish Bindal Vs State :9: Sections 379/420/468/469/471/ 506/34 IPC on 03.07.2005.
11. It is argued that the stolen cheques are forged by petitioner no.1 in active connivance of petitioner no.2 and both are equally liable. The CFSL report of handwriting expert shows that except the signatures on the cheques everything is in the handwriting of petitioner no.1. The revisionists also forged the stolen signed blank papers of the complainant in preparing a completely forged and fabricated MOU dated 01.04.2001 and written/executed in favour of petitioner No.2, which in fact the complainant never entered into with the petitioner No.2 at any point of time.
12. It is argued that the complainant has not issued the alleged cheques of such huge amount. It is argued that the balance sheet of 31.03.2001 and 31.03.2005 of petitioners show that Rs 21,50,000/ was duly received from M/s Jay Industries so there is no question of fastening any liability of debt against complainant. It is argued that only a sum of Rs 41.5 lakh was taken as personal interest free loan by complainant and his son from petitioners at a family level. This amount has already been returned to the petitioners and their family both by cash and cheques in such a manner that Rs 22 lakh was returned by cheque and Rs 19 lakhs by cash.
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13. It is argued that complainant never gave any cheque of Rs 1 crore post dated 15.12.2005 to petitioner no.1 or the post dated cheque dated 31.01.2005 to petitioner no.2 for Rs 2.5 crores and these are forged and stolen cheques used by petitioners. It is denied on behalf of State that the present case is a counter blast to the complaint under Section 138 of the Act filed by petitioner no.2 or to preampt the complainant of the petitioner no.1 under the same provision of law. It is argued that the authenticity and validity of experts opinion from CFSL cannot be challenged at this stage. The petitioners will have opportunity to crossexamine the expert witness to challenge his report later on during trial. It is argued that the complainant used to travel Bombay, Nasik and Pune for emergency work of the company and used to leave signed cheques and letter heads for the purpose of giving an undertaking in emergency to the Custom and Central Excise. The petitioners/accused persons being family members of the complainant, associated with the company had free access to the home and office of complainant. It is argued that the impugned order of Ld trial court framing charges against accused persons is in accordance with law and revision petition is liable to be dismissed.
14. I have heard Ld. Counsel for petitioners and Ld. Addl. Public Harish Bindal Vs State :11: Prosecutor assisted by Ld. Counsel for complainant and have gone through the revision petition, reply filed by the complainant, the trial court record, revision file and relevant provisions of law.
15. The petition before Hon'ble High Court for quashing of the proceedings before Ld. Trial court/FIR having been withdrawn without a decision on merit, it has no effect for and against either of the parties on the question of charge. The foundation of the case of the prosecution is the alleged two cheques which according to the petitioners were dishonoured on presentation and the complainant as a counter blast had initiated the present criminal proceedings to save him and his company from the liability under the said two cheques, while according to the prosecution, it is the petitioner no.1 who is guilty of stealing the cheques and both petitioners in collusion have forged and used the cheques and so are liable to offences u/Sec. 467/471/34 IPC.
16. The cheques drawn on the banker fall within the definition of negotiable instrument under the Act, so the facts and circumstances of the case cannot be judged in disregard of the provisions of the Act. There are legal presumptions available under the Act which are attached to the signed and issued cheques. As per Section 118 (a) so far is relevant every negotiable Harish Bindal Vs State :12: instrument raises presumption that it was made or drawn for consideration. Further there is another stronger presumption attached to dishonoured cheque and the court u/Sec. 139 of the Act shall presume that the holder of the cheque received the cheque of the nature as specified in Section 138 of the Act, for discharge, in whole or in part, of any debt or other liability. These two presumptions are legal presumptions attached to the cheques but these are rebuttable presumptions which can be rebutted. However, in the present case the cheques in question being admittedly, signed by the complainant would raise presumption of due consideration u/Sec. 118 (a) and under Sec. 139 that these cheques were issued to discharge, in whole or in part, any debt or liability of complainant. These presumptions are initial presumptions attached with the admittedly, signed cheques, which undisputedly, were dishonoured on being presented to the bank by petitioners.
17. Further, there is another presumption indicated in Section 20 of the Act in respect of blank or incomplete signed negotiable instruments. In the case of a cheque, the law does not require any stamp duty to be affixed on it, so the principle of Sec. 20 which deals with inchoate stamped negotiable instrument may be stretched to a signed blank cheque also. In cases of signed blank or incomplete negotiable instruments, the drawer gives authority to the drawee to Harish Bindal Vs State :13: fill up the agreed liability as per Sec. 20 of the Act.
18. There is yet another presumption under illustration (c) of Section 114 of Indian Evidence Act, according to which the court may presume that a bill of exchange, accepted or endorsed was accepted and endorsed for good consideration. This presumption is like presumption under Sec. 118 (a) of the Act. It is needness to point out that as per Sec. 6 of the Act a cheque is a bill of exchange, drawn on specified banker and includes the cheque in the electronic form. Therefore, the presumption under illustration (c) of Sec. 114 of the Indian Evidence Act, is also available to the petitioners with regard to dishonoured cheques, that the dishonoured cheques were issued for good consideration.
19. The signature of complainant on the memorandum of understanding (in short MOU) with petitioner no.2 dated 01.04.2001 and the forwarding letter issued by the complainant's company to petitioner no.1 dated 25.09.2003 are admitted. These are typed documents. The ordinary legal position in respect of admittedly signed document is that the presumption arises that the documents were signed when the contents were complete and the signatory of the documents knows about the contents of the documents. This view finds support from the authority 'Soni Vallabhdas Liladhar and another Vs. The Assistant Harish Bindal Vs State :14: Collector of Customs, Jamnagar AIR 1965 SC 481' and 'B.R. Koteshwara Rao vs. G. Rameshwari Bai, AIR 2004 AP 34 (DB) ; as there is nothing in the prosecution's case to say that complainant who admittedly signed these documents does know or understand the English language in which these documents were executed. However, this presumption as to execution and knowledge of contents of documents is also a rebuttable presumption and can be rebutted by way of adducing appropriate evidence to the contrary.
20. In view of the above, it is clear that there are several legal presumptions operating in favour of the petitioners based upon Secs. 118 (a), 139, 20 of the Act and illustration (c) Sec. 114 of Indian Evidence Act besides a general presumption as to execution and knowledge of contents of documents by the signatory of the documents i.e. complainant who had signed the MOU with petitioner no.2 and has issued alleged forwarding letter to petitioner no.1. However, these presumptions are rebuttable presumptions and can be rebutted by showing circumstances and evidence to rebut these presumptions. But the question is when the cheques issued to the petitioners, memorandum of understanding issued in favour of petitioner no.2 and forwarding letter issued to petitioner no.1 by the complainant are having the initial legal presumption supporting the petitioners, how, the petitioners can be foisted with the charges Harish Bindal Vs State :15: framed by Ld. Trial Court despite these legal presumptions operating in their favour. These legal presumptions can be rebutted by producing evidence and showing circumstances to rebut them can only be a ground of defence and not a ground of attack. These types of evidence can be led as a shield and not as a sword, therefore, with aforesaid legal presumptions operating in favour of the petitioners the charges as framed by the Ld. Trial Court against them are not valid. The evidence as to the loss of cheques and documents and alleged forgery which is a ground of defence in the complaint cases filed by the petitioners u/Sec. 138 of N.I. Act cannot be used as a ground of attack by initiating criminal proceedings against the petitioners.
21. The general legal position is that to know a prima facie case at the stage of framing of charge, the court is to look into the material collected by the Investigating agency in the police case and on the basis of statements u/Sec. 161 CrPC, the documents/material collected during investigation the court has to ascertain whether the material produced by prosecution, as collected by investigating agency during investigation of the case, is sufficient to make out a prima facie case of the alleged offences against the accused persons or not. If on the basis of said unrebutted material collected, the conviction of the accused can be forecasted or even if there is strong suspicion against the accused of Harish Bindal Vs State :16: commission of alleged offences, the charges should be framed, otherwise, there is no point of putting the accused to trial to arrive at a finding of acquittal on the basis of existing material with the prosecution. The defence of the accused, at this stage, which the accused would like to produce is not of material, nor the accused can be allowed to place any documentary evidence in support of his case at the stage of framing of charge.
In State of Orissa v. Debendra Nath Padhi AIR 2005 SC 359, it was observed as follows:
"23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided."
22. But if the defence of the accused is in built in the evidence collected by investigating agency, the circumstances in favour of the accused surface from Harish Bindal Vs State :17: the prosecution's case and the documents collected during investigation, the same, in my view, cannot be overlooked even at the stage of charge and accused can certainly rely upon the same to show no prima facie case exists against him for framing of the charges for the alleged offences. The accused can certainly rely upon the documents, and material collected by investigating agency during investigation of the case which support him.
23. In the present case, there are following circumstances emerging from prosecution case based on documents collected by investigating agency on which the petitioners have relied.
1. The two cheques are admittedly signed by the complainant, so also the MOU dated 01.04.2001 (at page 533 of the trial court record) (in short TCR) and forwarding letter of cheque to petitioner no.1 dated 25.09.2003 (at page 377 of TCR).
2. The NCR dated 18.12.2003 (at page 59 of TCR) was lodged by the complainant but the stop payment was requested by complainant on 25.03.2004 with regard to two cheques vide separate requests (at page nos. 65 and 67 of TCR) i.e after 96 days of alleged loss of cheques. The complaint under Section 138 was filed by petitioner against complainant and others on 28.02.2005 (at page 449 to 458 of TCR) before initiation of Harish Bindal Vs State :18: criminal proceedings in this case and the complaint U/s 138 of the Act was filed by petitioner no.1 against complainant and others on 29.04.2005 (at page 441 to 447 of TCR). The complaint dated 21.03.2005 is filed by complainant before Ld M.M (at page 27 to 41 of TCR) and order under Section 156(3) Cr.P.C was passed by Ld M.M on 29.06.2005 (at page nos. 43 to 45 of TCR). The FIR No. 542 dated 03.07.2005 was lodged in pursuance of the said directions of Ld M.M.
3. During the course of arguments and in the reply to the revision petition it is admitted that petitioner no.2 was in Japan on 18.12.2003 when the alleged cheques and documents are stated to be lost by the complainant ruling out the possibility of meeting of mind between the two petitioners/ accused persons.
4. The two post dated cheques in question bearing no. 830615 and 830616 are both stated to be sent by forwarding letter dated 25.09.2003. The immediate preceding cheque i.e cheque no. 830614 and immediate succeeding cheque bearing no. 830617 are as per the letter of Canara Bank dated 08.02.2008 (at page no. 381 of TCR) are issued on 22.09.2003 and 27.09.2003 as per report obtained by the IO from Manager Canara Bank concerned branch being report dated 08.02.2008 (at page no. 381 of the TCR). Therefore, the date of issuance of relevant two Harish Bindal Vs State :19: cheques and the preceding and succeeding cheque from the same cheque book of the bank agree or match with the contention of petitioners regarding the relevant two post dated cheques forwarded to them.
5. The MOU alleged to be executed between petitioner no.2 and the company of complainant signed by complainant is dated 01.04.2001 on a paper on which stamp of Rs. 5 is affixed and in the NCR dated 18.12.2003 (at page no.59 of TCR) and the newspaper advertisement, the complainant had not alleged that any paper with Rs 5 stamp was also lost. Further, this agreement of MOU which is disputed by the complainant is acted upon as in terms of clause (vii) of this MOU, the petitioner no.2 admittedly was appointed as Director of M/s Jay Switches (India) Pvt Ltd and a sum of Rs 25,000/ p.m was regularly deposited in the bank account of petitioner no.2 for several months as per the bank statement of petitioner no.2 collected during investigation by investigating officer (at page nos. 559 & 561 of TCR).
6. The alleged loan given by petitioner no.1 and his family to the complainant is admitted but in reply to revision petition, the complainant has alleged that the loan amount stood repaid by way of repayment of Rs 20 lakhs by bank cheques and Rs 19 lakhs by cash. But, the statement of the bank account of complainant (at page nos. 185 to 217) does not show any cash Harish Bindal Vs State :20: withdrawal showing prima facie the contention of the complainant that Rs 19 lakhs were paid in cash, as not true.
7. The copies of the cheques issued by both parties collected during investigation by IO (at page nos. 219 to 247) show the parties were issuing cheques to each other and the case has civil profile. In the NCR dated 18.12.2003 and newspaper advertisements the complainant has not alleged theft of two cheques and documents and instead has alleged in the NCR that one bag containing important documents i.e six stamp papers, bank passbook, some cheques, some letter heads, plain papers and pass book of M/s Jay Industry and M/s Jay Switches were lost. He did not allege that the cheques lost were blank signed cheques and the documents and stamp papers were also signed by the complainant. There is no allegation of the theft in the said NCR or newspaper advertisement. Besides the son of the complainant has also given almost identical advertisement in the same newspaper 'Jan Satta' dated 26.12.2003 (at page no. 69 of TCR). It looks abnormal that both father and son on the same day misplaced/lost their bag containing the said documents on the same day with regard to two different companies. This discrepancy assumes importance as on 18.12.2003 the son of the complainant along with petitioner no.2 was in Japan (as per para no.5 of the reply of the Harish Bindal Vs State :21: complainant to the present revision petition). How can the son of complainant be in Japan and misplace or lose documents in India in a bag on the same day?
24. In view of the above material collected by investigating agency during investigation of the case showing circumstances which raise inference of innocence of the petitioners in the matter, it is difficult to hold that prima facie for the offences for which the petitioners were charged with by Ld trial court, is made out in this case.
25. The contention on behalf of the petitioners is that the complaint u/Sec. 156 (3) Cr.P.C was drafted after due deliberation with appropriate legal advise. Thereafter, as many as six supplementary statements were given by complainant to the investigating officer during investigation the case which show that the complainant tried to fill up the lacunae and loopholes from 21.03.2005 i.e, from the date of registration of FIR till completion of investigation i.e. 23.05.2008. The entire subsequent statements of complainant are doctored and tutored and do not corroborate with the complaint. So, the present criminal proceedings are initiated only as a counter blast to deprive the petitioners to fruit the two cheques issued by the complainant to them. To analyse the above Harish Bindal Vs State :22: submission on behalf of the petitioner, it would be apt to have a peep into the case law with respect to the supplementary statements and improvements in statements of the witnesses during investigation or otherwise. In Kehar Singh and ors. v. The State (Delhi Admn.) AIR 1988 SC 1883, the Apex Court has observed as follows:
"70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In this second statement he has tried to introduce things against him. This apparently is a clear improvement. It is well settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone."
Harish Bindal Vs State :23: In Babu Singh & Ors. v. State of MP III (1997) CCR 182 (MP), the Madhya Pradesh High Court observed as follows:
"14. ...............All this indicates that the story about the demand of dowry and harassment as also the incident of beating has been subsequently introduced as an after thought, otherwise there was no reason why the parents of the deceased would not unfold the same at the very first opportunity, especially when v.C. Verma, S.D.O. (Police) (PW 7), who conducted investigation, has admitted that both were present. It is, therefore, difficult to hold on the basis of such shaky evidence that any of the appellants had abetted the commission of suicide by the deceased."
In Ramesh Bhandari v. Charan Dass Puri and others 50 (1993) DLT 81, it was observed by the Delhi High Court:
"3. ...............It is a case in which apparently earlier statements, although not strictly under Section 161 of the Code do not inculpate the respondent whereas the later statements made after 67 days to inculpate them. Even if the statements made at the time of inquest are strictly not in investigation, it is not possible also to ignore them since they are quite detailed and in any case admittedly are in the nature of previous statements of the closest relations of the deceased."
Harish Bindal Vs State :24: In Onkar Nath Mishra v. State (NCT of Delhi) 2008 [1] JCC 65 (SC), the Hon'ble Supreme Court held as follows:
"19. As regards the applicability of Section 498A IPC, in the complaint dated 8.11.1994 there is not even a whisper of a wilful conduct of appellants No. l and 2 of harassment of the complainant at their hands with a view to coercing her to meet any unlawful demand by them so as to attract the provisions of Section 498A read with Explanation thereto. The complaint refers to the talk the complainant purports to have had with her husband, appellant No. 3, who is alleged to have told her to come to Bijnore if she apologizes to his father; keeps him happy; obeys his sister and talks to her father (complainant's) to give her Rs. 50,000/ and VCR and brings these articles to Bijnore. We are convinced that the allegation of misbeheviour on the part of appellant Nos. 1 and 2 and the demand of Rs. 50,000/ and VCR by them made by the complainant in her subsequent statement, dated 4.4.1995, was an after thought and not bona fide. Section 498A IPC was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the FIR and the chargesheet, we find that charge under Section 498A IPC is not brought home insofar as appellant Nos.1 and 2 are concerned."
Harish Bindal Vs State :25: In Budhan Singh & Ors v. State (Through N.C.T. of Delhi) 2008 [2] JCC 1017 (Del), it was observed as follows:
"5. It is further urged by learned counsel for the petitioners that initially investigation carried out by the investigators indicated that Tikam Singh died due to heart attack and in this regard he has drawn my attention to the statement of Gyan Singh, Ramesh and Daya Chand which was recorded by the investigators initially. In support of such contention learned counsel for the petitioners has placed on reliance a judgment reported in 2004(3) JCC 1754 where this court observed that a complaint, on the basis of which the complainant seeks registration of an FIR, must disclose essential ingredients of offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the FIR. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offense complained of.
6. In the case in hand also investigation carried out by the investigators completely exonerated the petitioners but Harish Bindal Vs State :26: belated FIR lodged at the instance of the wife should not be taken into consideration as it seems to have been made with a view to fill up the lacuna in the investigation made earlier."
In Rajender Singh Sachdeva v. State (NCT of Delhi) 2008 [2] JCC 979 (Del), it was observed as follows:
"13. If these and the other surrounding circumstances are taken into consideration the complaint of the petitioner appears to be well founded. According to the complaint, the incident in which the petitioner was involved occurred some time in AprilMay 1988 i.e, 16 years before the complaint. He was not named in the FIR. That incident is also absent in the first report documented during the investigation i.e, a complaint to the Assistant Labour Commissioner. The allegations against the petitioner surfaced only during the statement under Section 161. Interestingly he was named in that. The third statement was recorded on 21.05.2004. In the meanwhile, the petitioner was arrested on 18.05.2004. One does not find any logic as to the recording of the second statement under Section 161 except as a explanation by the complainant regarding identity and knowledge of the petitioner's name. If this is seen in the background of absence of any mention of the petitioner in the FIR, the tenuousness of the link with allegations against him Harish Bindal Vs State :27: become apparent."
In Smt. Deepa Bajwa v. State & ors 2004 [3] JCC 1754 (Del), it was observed as follows:
"6. After considering the submissions made by learned counsel for the parties, the Court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an F.I.R., must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the F.I.R. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence. In the complaint dated 19th April, 2001, the Complainant himself alleged that the Councillor Chhannu Mal was introducing him to the petitioner. If that was the case, how could he say later that on that day the petitioner knew that he was a Scheduled Caste. This statement, therefore, was a crude falsity introduced at the behest of Harish Bindal Vs State :28: the police to implicate the petitioner under Section 3 of the Act. This effort on the part of the police to supply the deficiency and cover up a lacuna in the complaint in view of legal opinion was totally unwarranted and an abuse of the process of law."
In Bhagwanti v. State 2001(3) C.C. Cases (HC) 139 (Del), it was observed as follows:
"5. Now, applying the above principles, in this case, deceased (Rajni), was married to Dharampal on 27.09.1984; she committed suicide on 18.04.1990, after six years of her marriage. The statements of the parents and brother of deceased were recorded before SDM on 18.04.1990 and 19.04.1990 respectively. In their statements, they did not make any allegations against the petitioner. Their case was that the deceased being harassed by her husband as he was having illicit relations with his cousin Sunita Gandhi. In the backdrop probabilities and nature of the case, subsequent statements of the parents of the deceased under Section 161 Cr. PC recorded by the police during investigation containing vague allegations to the effect that petitioner used to taunt the deceased for inadequate dowry are liable to be rejected. These statements may give rise to some suspicion but not grave suspicion. I would hasten Harish Bindal Vs State :29: to add that the situation may have been different if the statements of the parents and brother of the deceased before the SDM were not in detail or if in the subsequent statements under section 161 Cr. PC there were some specific instances. The focus of the allegations appear to be against the husband and not again the petitioner. In view of the above no case for framing of charge against the petitioner is made out."
In Balakrushna Swain Vs. The State of Orissa 1971 CRI LJ 670 S.C., the following observations were made by Hon'ble Supreme Court:
"6. In view of all these incongruities we think there is justification in the comment of learned Advocate for the accused that the delayed examination of P.W.5 by P.W.19 would give an opportunity to P.W.5 to concoct a different version that what actually took place.
8. These contradictions ordinarily would by themselves not have much significance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to be telling falsehoods on material aspects of the case it becomes difficult to place any reliance on such testimony particulary when he tried to conform to the evidence of P.W.1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head."
Harish Bindal Vs State :30: In Husna and others Vs. State of Punjab 1996 SCC (Cri) 421, the following observations were made:
"6. As already noticed, the FIR the names of both the appellants were found missing. They were only named in the supplementary statements of PW1 recorded during the investigation and in our opinion that statement which was recorded during the investigation was hit by Section 162 Cr. P.C and the trial court could not have relied upon the same as a part of the FIR."
In Viswanath and another Vs. State of Madhya Pradesh 2005 CRI LJ 1913 MP it was observed as follows:
"Investigation officer must recod the statement promptly in order to inspire confidence in such statements. As unexplained delay in examining a crucial witness would render the witnesses unreliable. Where the staements of relatives were recorded after long delay and no explanation of delay were offered, the evidence of witnesses cannot be relied upon where only general allegations of demand for dowry were made against the husband and other family members and there was no clear and cogent evidence involving them in demand for dowry."
26. In view of the above case law, on different fact situations with regard to different offences, it is clear that the higher Courts have not seen the Harish Bindal Vs State :31: improvements in the statement of witnesses during investigation as a credible thing. The improvements made by witness in the statement are treated with grave doubt by the higher Courts as these are treated as manipulations by the witness and investigating agency to fill up lacunae in their case. In the present case also, in the NCR dated 18.12.2003 and the newspaper advertisement the complainant nowhere has alleged theft of the cheques in question nor has given the number of cheques in question nor has stated that these were signed cheques nor has stated that petitioner no.1 who is charged by Ld trial court of offence under Section 379 IPC was present with him at the time of alleged loss of cheques. Therefore, improvements made by the complainant in the six supplementary statements recorded by the investigating officer on 26.07.2005, 28.11.2005, 28.05.2006, 29.01.2007, 16.02.2008 and 23.05.2008 are liable to be discarded in the light of the above case law rendering the case of prosecution further doubtful so far as forming opinion about prima facie case against accused persons for the alleged offences concerned.
27. The Ld trial court has observed that two witnesses of MOU dated 01.04.2001 namely Sh. S.K. Mangla and Sh. Ajay Kumar Bindal have given statements under Section 161 Cr.P.C stating that the said agreement was signed by them at the instance of petitioner no.1 and they did not see the complainant Harish Bindal Vs State :32: signing the said document. Ld trial court has heavily relied on the statement of these two witnesses to raise inference that the said MOU was a forged document. But, I am unable to agree with this finding of Ld trial court as, firstly, the said MOU dated 01.04.2001 is acted upon by way of appointment of petitioner no.2 as a Director of the company in question and by making regular payment of Rs 25,000/ in the account of petitioner no.2 by the said company, as referred before. Further, no law is shown by the prosecution to indicate that said MOU was required by law to be attested by witnesses, therefore, as per Section 72 of the Indian Evidence Act, the document i.e MOU in question can be proved as if it was an unattested document. This Section 72 of the Indian Evidence Act makes the statement of the two attesting witnesses unnecessary and the document MOU can be proved and acted upon on the strength of the admission of complainant of his signature on it.
28. Ld trial court in the impugned order dated 21.05.2011 has observed that the FSL report clearly states that the body of the said cheques was filled up by petitioner no.1 including amount, date and names of the drawee of the cheques. Therefore, the grave suspicion against petitioners have arisen as there was no occasion for sending them blank cheques by the complainant. These observations, in my view, are also not forceful as the value of the report of Harish Bindal Vs State :33: handwriting expert is insignificant in itself. It is considered a weak type of evidence and is not sufficient for conviction of the accused, though, it has corroborative value only and requires substantial corroboration by other convincing evidence to be led by the prosecution to bring home the guilt of the accused in a criminal case. This view finds support from the authorities:
Vandavasi Karthikeya @ Krishna Murthy Vs. S. Kamalamma and others AIR 1994 AP 102, Magan Bihari Lal Vs State of Punjab AIR 1977 SC 1091, Ram Chandra Vs. State of U.P AIR 1957 SC 38, Shashi Kumar Vs Suboth Kumar AIR 1964 SC 529, Fakhruddin Vs. State of M.P AIR 1964 SC 1326, Murarilal Vs. State of M.P AIR 1980 SC 531. Further, Section 20 of the Act comes to the rescue of the petitioners with regard to the incomplete cheques, as already discussed.
29. Ld trial court in the impugned order has observed that the test of a reasonable man is not applicable as human behaviour and the conduct of different persons is diverse and unpredictable. It is also observed that a person having low intellectual capacity than a reasonable man is inherently more susceptible to the tricks of a wicked and cheat person, so these observations were also considered by Ld trial court for leaning in favour of prosecution for framing of the charges in question. But, here again the Ld trial court, in my view, Harish Bindal Vs State :34: fell in error by overlooking the fact that complainant is not a person of low intellectual capacity than a reasonable man. He is running a company manufacturing articles. Therefore, he being an aged person, Managing Director of a company, manufacturing articles can be presumed to be dealing with or supervising the work with different government departments, tax authorities and parties in connection with his business. Therefore, he cannot be considered a person of low intellectual capacity than a reasonable man rather he can be safely presumed to be an intelligent person with business acumen who cannot be presumed to be such naive to keep blank signed cheques and documents with him knowing and understanding the implication of loss of these documents and cheques. Further, he cannot be presumed to ask for stop payment of the cheques by the bank by taking unduly long time of 96 days. These facts also lean in favour of petitioners and the finding of Ld trial court in this regard are liable to be reversed.
30. The Ld trial court has also held, though, likelihood of the prosecution version to be true, does not pass the rule/standard of reasonable man but its possibility/probability are not non existent and thus cannot be ruled out at this stage and that too without giving an opportunity to the complainant and prosecution to substantiate its version. It was, therefore, observed that the Harish Bindal Vs State :35: argument of petitioners regard improbability of the prosecution story is not sustainable. These findings of Ld trial court, in my view, are also against law on the question of framing of charge.
31. One of the principles followed in the criminal cases is that if two views are possible as to guilt or innocence of accused, in a criminal case, the view which favours the accused should be acceptable by the court discarding the view which is in favour of the prosecution. This principle of two views, which is a judgemade principle, is used by higher Courts at different stages of criminal trial and in appeal. This principle not only is used at the time of passing of judgment but also to determine the age of juvenility of the accused also. The said principle has also made inroad at the stage of framing of the charge.
32. In the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and Harish Bindal Vs State :36: large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal (1979) 3 SCC 5: 1979 SCC (Cri) 609; Dilawar Balu Kurane Vs. State of Maharashtra 2002 (1) JCC 172) Dilawar's case (supra) is followed by our Hon'ble High Court in its judgment reported as Ashok Kumar Nayyar Vs. The State 2007 (2) JCC 1489, it was observed as under:
" Equally if two versions are possible, the one supporting the accused has to be preferred. In this case the entire materials before the Court are in the form of statements. There is a clear conflict about the facts alleged. Besides the informant there is no one speaking about the Harish Bindal Vs State :37: incident as alleged by her. The police constable who was admittedly on the spot, stated that there was no quarrel as described by her and the two independent witnesses again admittedly present, gave a completely different picture pointing to the informant starting a quarrel with them. They clearly state that the petitioner did not threaten, assault or abuse the informant.
17. In these circumstances, after careful consideration of the materials I am of the opinion that there is a reasonable version which supports the petitioner. The materials on record also do not point to a grave suspicion to warrant the charges, framed in the impugned order."
In Yogesh @ Sachin Jagdish Joshi Vs State of Maharashtra 2008 (2) R.C.R (Criminal) 896 it is observed as follows: "It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.
However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie Harish Bindal Vs State :38: case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See:
State of Bihar V. Ramesh Singh (1977) 4 SCC 39 and Prafulla Kumar Samal (Supra)]
33. In view of the above case law, it is clear that the principles of two views equally applies to the stage of charge and in case there is possibility of two views, one view showing prima facie case against the accused for the alleged offences and the other view negating it then the accused is entitled to be discharged. In the facts and circumstances of the present case, although, I am of the considered view that the circumstances, documents collected during investigation of the case and the legal presumptions as to the cheques and signed documents which are operating in favour of petitioners/accused persons as discussed before, the overwhelming material collected during the Harish Bindal Vs State :39: investigation of the case lean in favour of innocence of the petitioners but even if, a prima facie opinion is formed that despite all shortcomings in the prosecution case, the prosecution has equally good case against the petitioners/accused persons as to the charges framed by Ld trial court, still the framing of the charges against the petitioners/accused persons is not justified in the light of Yogesh's case (Supra) and Praful Kumar's case (Supra), Dilawar Balu Kurane's case (Supra) and Ashok Kumar Nayyar's case (Supra).
34. In somewhat similar circumstances in 'Sunil Kumar vs. M/s Escorts Yamaha Motors Ltd. and ors. 2000 Cri. L.J. 174 SC, the Hon'ble Supreme Court has quashed the FIR pertaining to offence u/Sec. 420/406/468 IPC against the accused in that case as the circumstances in that case manifested that the said FIR was lodged to preampt, the filing of the criminal complaint against the informant u/Sec. 138 of the Act.
35. In view of the above discussion, there is no need to go into the further arguments raised on behalf of parties. The above discussion leads to the irresistible conclusion that learned trial court acted with material irregularity and impropriety in framing impugned charges against petitioners. Therefore, the revision petition of petitioners is allowed. The impugned order dated 21.05.2011 Harish Bindal Vs State :40: passed by Ld M.M holding prima facie case against petitioners for offences under Section 467/471/34 IPC and prima facie case under Section 379 IPC against petitioner no.1 is set aside. The impugned charges framed against petitioners on 21.05.2011 are also set aside. Both the petitioners/accused persons are discharged from the case. The trial court record be returned along with copy of this order. The order be sent to the server (www. delhidistrictcourts.nic.in). The revision file be consigned to the record room. Announced in the open Court on 2nd August 2011 (S.K. SARVARIA) JUDGE AND INCHARGE (N/W) ASJ ROHINI DISTRICT COURTS: DELHI Harish Bindal Vs State