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[Cites 12, Cited by 0]

Delhi District Court

Raju Soni @ Ravi Soni vs State on 5 July, 2014

                     IN THE COURT OF SH. NARINDER KUMAR
             ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI


Criminal Revision No.61/14


Raju Soni @ Ravi Soni
S/o Sh. Neki Ram Soni,
R/o S­601, Nehru Enclave,
School Block, Shakarpur, 
Delhi­ 92.                                         ......Petitioner
Versus
 
State                                                 .......Respondent

Date of institution : 03.07.2014
Date of Judgment : 05.07.2014

                                    J U D G M E N T

Petitioner herein is accused before the Trial Court in case FIR no.627/07 PS Daryaganj. He is feeling aggrieved by order dt.30.04.2014 passed by learned Trial Magistrate, vide which charge for offences U/s 419, 471 & 420 read with Sec.511 IPC has been framed against him in respect of cheque no. 420942 and that prima facie case is made out against him for offences U/s 471 & 420 IPC in respect of cheques no.383572 and 355159.

2. While opening arguments, learned counsel for petitioner has submitted that this is a case where the accused­petitioner visited Axis Bank, Darya Ganj, 1 Delhi on 19.11.2007 for encashment of cheque which was delivered to him by Sh. Virender, co­accused who has been acquitted by the Trial Court and that he had no criminal intent.

The first contention raised by learned counsel for petitioner is that no prima facie case for an offence under Section 419 IPC is made out against the accused­petitioner so far as occurrence dated 19.11.2007 is concerned as there is no material on record to suggest that he impersonated before any of the bank official at the time of presentation of cheque no. 420942.

3. A perusal of record reveals that in the complaint dated 19.11.2007 submitted by Bank Manager to the police, it was clearly mentioned that the person who presented the cheque no. 420942 on 19.11.2007 posed himself as Ravi.

4. Accused­petitioner, when arrayed as such by the police has been named as Raju Soni @ Ravi. There no material on record to suggest that accused­petitioner impersonated as someone else i.e. as Yogi Raj complainant. It cannot be said to be a case of cheating by impersonation so as to attract provisions of Section 416 and 419 IPC. Therefore, no prima facie case for an offence under Section 419 is made out against the accused.

5. Aforesaid case came to be registered vide FIR no.627/07 on the complaint made by Sh. Yogi Raj on 19.11.07 to SHO PS Daryaganj. In his complaint Sh. Yogi Raj informed the police that he was maintaining account 2 no.079010100166188 with Vikas Puri Branch of Axis Bank and that about three months' prior thereto some of his blank cheques were removed from the cheque books pertaining to Axis Bank. It transpired from the statement of account that vide cheque no.383570 dt.25.08.07 a sum of Rs.13,500/­; vide cheque no.383572 dt.07.09.07 a sum of Rs.14,500/­; vide cheque no.355159 dt.09.10.07 a sum of Rs.30,500/­ and vide cheque no.355160 dt.16.10.07 a sum of Rs.19,500/­, were withdrawn from the aforesaid account. As suggested by the bank officers he got his aforesaid account freezed.

Further as alleged in the complaint on 19.11.07, he received a phone call from Sandeep that a boy had been apprehended while attempting to withdraw some amount from his account by presenting it with Daryaganj Branch of the bank. On reaching the aforesaid bank with Daryaganj Branch of the bank, the complainant saw a boy who had been apprehended. In the complaint, Yogi Raj - complainant stated that he had seen the same boy on CCTV footage earlier displayed at Swasthya Vihar Branch, but at that time he could not verify his identity.

6. Case of prosecution is that it is the petitioner who was so apprehended while attempting to withdraw amount from account of complainant on 19.11.07. A complaint dated 19.11.07 was also submitted by Sh. Ajay Mittal, Assistant Vice President, Branch Head, Daryaganj Branch, narrating the manner in which they had apprehended the accused - petitioner under suspicious 3 circumstances for encashed of cheque. Further, it is case of prosecution that cheque no.420940 of account when produced by Sh. Ajay Mittal, Branch Head of the aforesaid branch was seized by the police. Subsequently, on 21.11.07, cheque no.355160 dt.16.10.07 a sum of Rs.19,500/­ was also seized by the police when produced by Sh. Dheeraj Arora, Deputy Manager. Thereafter, on 20.12.07, cheque no.383570 dt.25.08.07 a sum of Rs.13,500/­; cheque no. 383572 dt.07.09.07 a sum of Rs.14,500/­ and cheque no.355159 dt.09.10.07 a sum of Rs.30,500/­ were also seized by the police when produced by Sh. Shubh Ashish S/o Inder Mohan R/o 145­A, Pocket - 4, Mayur Vihar, Phase - I, Delhi.

Co­accused, namely, Virender Kumar was apprehended by the police on 19.11.07. Material exhibits were sent to FSL for comparison of specimen handwriting and signatures with the disputed handwriting and signatures. On completion of investigation, challan was put in court.

7. Vide impugned order, learned Metropolitan Magistrate has passed order of discharge of co­accused Virender while observing that there is no evidence against him except the disclosure statement that he had stolen cheques from the complainant. But prima facie having been made out against the accused - petitioner, charge was framed against him only.

8. From the material available on record, Court finds that on 19.11.2007, Ravi, accused­petitioner presented cheque no. 420942 at the counter of Axis 4 Bank, Darya Ganj for encashment. Police was informed immediately, whereupon ASI Surender Ahlawat of PS Darya Ganj reached the bank. Accused­petitioner was also produced before the ASI. Police seized the above referred to cheque no. 420492 from Sh. Ajay Mittal, Head of the Bank.

It is case of prosecution that the aforesaid cheque was one of the cheques of the account of Yogi Raj S/o Sh. Ram Kishan. Yogi Raj also came to the said branch of Axis Bank, Darya Ganj and submitted the complaint in writing. On the same day, during investigation specimen and handwriting and signatures of accused­petitioner were obtained by the police. Report received from FSL, Rohini would reveal that signatures Q1, at the space meant for signatures of the drawer of the cheque no.420942 did not tally with the specimen signatures of Yogi Raj complainant. At the back of this cheque, questioned signatures were also analyzed, but the expert expressed his inability to express any opinion regarding these questioned signatures. But from the other evidence it appears that it is the accused who presented the cheque for encashment and attempted to cheat. So prima facie case for offence under Section 420 read with Section 511 IPC is made out against him.

9. Another argument put forth by learned counsel for the accused­petitioner is that no prima facie case for an offence under Section 471 IPC is made out against the accused is that there is no material on record to suggest that accused­petitioner knew or had reasons to believe that cheques were forged. 5 In support of his contention, learned counsel has referred to decision in Jibrial Diwas v. State of Maharashtra AIR 1997 Supreme Court 3424, Abdul Karim Madan Sahab v. State of Mysore AIR 1979 SC 1506 and Rakesh Kumar v. State 109 (2004) DLT 826.

So far as essential ingredients of knowledge attributed to the accused­ petitioner or that he had reason to believe that the two cheques earlier presented by him were forged documents, plea of the accused, as put forth in the course of arguments is that these were handed over to him by Sh. Virender (accused since discharged) and he visited the bank and got the same encashed as bearer.

In Abdul Karim's case (supra), decision was given by the Hon'ble Court after acquittal of the accused persons by the Trial Court and on conviction by Hon'ble High Court only for the offence under Section 471 IPC. In other words, finding came at final stage after trial and not at the time of charge.

Further in that case, cheque was handed over to the accused by the complainant and no evidence was produced to show that accused had used the cheque, knowing it to be forged and as such conviction for offence under Section 471 IPC could not be ordered.

Herein factum of entrustment of the two cheques 383572 and 355159 to him by Virender (co­accused since discharged) is especially within the knowledge of the accused­petitioner even though initial burden is to be 6 discharge by the prosecution.

In the given facts and circumstances, decision in Abdul Karim's case (supra), does not come to the aid of the accused­petitioner, at this stage.

Rakesh Kumar's case (supra) was also decided after trial and the observation made by the Hon'ble High Court on the point of involvement of the accused for the offence under Section 471 IPC came after trial. But herein prosecution is yet to lead evidence. Therefore decision in Rakesh Kumar's case also does not come to the aid of the accused­petitioner.

In Jibrial's case, letters were prepared on the letter head of minister by the accused, extending invitations to actors for cultural show. Those letters did not bear signatures of the minister. In the given facts and circumstances, Hon'ble Apex Court observed neither it was a case of wrongful gain or wrongful loss to anyone and that act of the accused could not be termed to have been done dishonestly. The case of Jibrial is therefore distinguishable on facts.

It is case of prosecution that earlier on 07.09.2007 forged cheque no. 383572 dated 07.09.2007 was presented belonging to Yogi Raj complainant was present at Axis Bank, branch Vikas Marg and on 09.10.2007 forged cheque no. 355159 was also presented at the same branch for encashment. Both these cheques were got encashed.

As per report of the expert, questioned signatures Q4 and Q11 on the 7 front side of both these cheques did not tally with the signatures of Yogi Raj complainant. Therefore, prima facie the complainant did not issue these cheques. At the back of these cheques are the questioned signatures Q18 and Q19 respectively.

As per report of the expert these questioned signatures Q18 and Q19 were put by the person who put specimen signatures as available in S3 i.e. the sheets contained specimen signatures of accused­petitioner. Therefore, prima facie it can be said that both these forged cheques were got encashed by the accused­petitioner.

In the given facts of the present case, when the accused has come up with the specific plea of entrustment of the two cheques no. 383572 and 355159 to him by Virender Kumar and prosecution has placed on record material to suggest that it is the accused­petitioner who withdrew the amount from the bank by using these forged documents, prima facie case for an offence under Section 471 IPC and 420 IPC is made out against the accused­ petitioner that these two cheques were got encashed by him on 07.09.07 and 09.10.2007 respectively, knowing or having reason to believe that same were forged.

10. Last contention raised by learned counsel for the petitioner is that this is a case of misjoinder of charge as first two offences are alleged to have been committed at Asix Bank branch Vikas Marg whereas the other offence is 8 alleged to have been committed at Axis Bank branch Darya Ganj, Delhi. In support of his contention, learned counsel has referred to provisions of Section 220 CrPC and decision in K. T. M. S. Mohd. and another v Union of India AIR 1992 Supreme Court 1831.

As regards this last argument regarding misjoinder of charge, accused has been charged for the three offences of the same kind be committed during a period of one year. Such a course is permissible as provided under Section 219 CrPC. Therefore decision in K. T. M. S. Mohd's case does not come to the aid of the accused­petitioner.

11. It may be mentioned here that Section 218 CrPC provides that for ever distinct offence there shall be a separate charge. Herein learned Metropolitan Magistrate has framed common charge for offences under Section 419, 471, 420 read with Section 511 IPC under the first head and common charge for offences under Section 471 & 420 IPC under the second head of the charge.

Learned Metropolitan Magistrate is directed to frame separate charge for every distinct offence i.e. for offences under 471 & 420 read with Section 511 IPC committed on 19.11.2007 and for offences under Section 471 and 420 IPC committed on 07.09.2007 and 09.10.2007 separately and that too date­ wise.

12. In view of the above observation, revision petition is partly allowed only qua offence U/s 419 IPC with the directions to be complied by the Trial Court 9 in the manner indicated above.

13. Accused­petitioner to appear before the Trial Court on 19.07.2014. Trial Court record be returned.

14. File of Revision be consigned to Record Room.



Announced in Open Court 
on 05.07.2014                                       (Narinder Kumar )
                                        Additional Sessions Judge(Central)
                                                              Delhi.




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