Jammu & Kashmir High Court
Avtar Krishen Koul vs Central Bureau Of Investigation on 9 March, 2007
Equivalent citations: 2007CRILJ3450, 2008(1)JKJ407
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. This appeal is directed against judgment order dated 31st of March 2001, passed by the learned 1st Additional Session Judge, Jammu, vide which the appellant has been convicted and sentenced as under:
In the instant case the accused Avtar Krishan has done forgery of valuable security and having done it for the purpose of cheating, he is liable to conviction under Sections 467 and 468, RPC, as he has committed cheating as well so is liable to be punished Under Section 420, RPC. The accused Avtar Krishan Koul accordingly is held guilty of committing offences punishable under Sections 467, 468 r/w Section 471 and Section 420, RPC.
...Therefore, under Section 467, RPC accused shall undergo rigorous imprisonment of two and half years and a fine of Rs. 5000/- (five thousand). In default of payment of fine he shall further undergo six months simple imprisonment in addition to the above sentence.
For offence Under Section 468, RPC the accused is sentenced to two years rigorous imprisonment and a fine of Rs. 3000/-. In default of payment of fine he shall further undergo simple imprisonment for six months in addition to the above sentence.
For offence Under Section 420, RPC accused is sentenced to undergo rigorous imprisonment of one year and a fine of Rs. 500/-. In default of payment of fine he shall further undergo one month's simple imprisonment.
All the sentences shall run concurrently and the period the accused has remained in custody in this case viz. 14-3-2001 till to date shall be given as set off towards the sentence imposed today on the accused convict Avtar Krishan Koul.
2. The prosecution story in brief is that S/Sh Sandesh Kumar Bhat, Vijay Kumar and P.C. Hans entered into a criminal conspiracy as a result of which they forged a blank account payee cheque bearing No. 455049 of LIC Unit-II, branch Jammu, and fraudulently withdrew an amount of Rs. 32,000/- from Punjab National bank, Gandhi Nagar, Jammu, in the name of Kuldeep Sharma. During investigation, it revealed that the appellant Avtar Krishan opened a fictitious account No. SB-22709 in PNB Gandhi Nagar, in the name of non existing person Kuldeep Sharma and himself signed as introducer. During investigation, it was also revealed that in the month of April '93, Sandesh Bhat accused since acquitted, steeling took away the said blank cheque which was in the custody of Gopal Krishan, LIC Assistant and filled up the cheque in his own hand-writing the pay order of Rs. 32000 in favour of Kuldip Sharma, Vijay Kumar, accused since acquitted forged on this cheque the signatures of Mrs. Sudesh Khuda, HGA of LIC Unit. II and ML Basur, Branch Manager. The said cheque was deposited in the aforesaid account No. by the appellant on 30th of April 1993, and thereafter the amount of Rs. 32000 was credited to this account on 7th of May 1993, on which date, the said amount was withdrawn by the appellant as Kuldip Sharma.
3. After investigation, the challan was presented before the Court of Chief Judicial Magistrate, Jammu. The case was committed to the Court of Sessions, Jammu. On commitment, the case was entrusted to the Court of Learned 1st Additional Sessions, Judge, Jammu, who charge-sheeted the appellant under Section 120B read with Sections 419, 420, 465, 467, 468 and 471, RPC.
4. When the appellant was examined under Section 342, Cr. P.C. he denied simpliciter and false implication.
5. After hearing learned Counsel for the parties and perusing the record, the learned 1st Additional Sessions Judge Jammu, vide order impugned acquitted the co-accused of the appellant, however, the appellant was convicted and sentenced as noticed in para 1 of this judgment. Aggrieved by which, the present appeal has been filed.
6. Mr. B. L. Chatta, learned Counsel for the appellant submitted that the learned Court below has erred in convicting and sentencing the appellant. He contended that there is no substantive charge for offence under Sections 467, 468 read with Sections 471 and 420, RPC, rather, the appellant has been charge-sheeted for conspiracy under Section 120B read with Sections 419, 420, 465, 467, 468, 471, RPC. It is submitted that the appellant can only be convicted under Section 120B, if the prosecution proved that ail-along with the appellant there were another accused who conspired to cheat and fraudulently prepared the document. He contended that the allegation of the prosecution is that Sandesh Bhat stealthily took away the blank cheque bearing No. 455049, which was in the custody of Gopal Krishan, LIC Assistant and he filled in the cheque in his own handwriting the pay order of Rs. 32,000 in favour of Kuldip Sharma. He further submitted that as per the allegation of the prosecution Vijay Kumar forged on this cheque the signatures of Mrs. Sudesh Khuda, HGA of LIC Unit-II and as well as of Sh. M. L. Basur, Branch Manager. The only allegation against the appellant, it is submitted is that the cheque amount deposited in the account of Kuldip Sharma has been withdrawn by the appellant. It is submitted that the prosecution has miserably failed to prove that the appellant was the person who withdrew the said amount. It is contended that the other co-accused namely Anil Bhat and Sandesh Bhat have been acquitted, the appellant cannot be convicted and sentenced for the offence of conspiracy under Section 120B, RPC. In support of his submissions, he relied upon the judgment of the Supreme Court reported as , Vijayan alias Rajan v. State of Kerala.
7. Mr. Bhat learned Counsel for respondent submitted that there was a substantive charge framed against the appellant under Sections aforementioned and the case of the appellant is distinguishable from the case of his co-accused since acquitted as the signatures of the appellant have been proved on the withdrawal slip and the account opening form. He submitted that the appellant has impersonated himself as Kuldeep Sharma and has fraudulently withdrawn the amount.
8. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the record.
9. Before considering the rival contentions, it will be appropriate to pursue the charge, which reads as under:
That you entered into a criminal conspiracy during the period February, 1993 to April 1993 with other accused persons, opened up an account with Punjab National Bank, Gandhinagar, Jammu in the name of a fictitious person Kuldip Sharma, by impersonating yourself to be such fictitious person on the false introduction of Sh Anil Bhat accused and deposited the forged cheque, prepared and forged by accused Sandesh Bhat for an amount of R. 32000 through a forged pay in slip and withdrew the same through a forged withdrawal slip and by impersonation cheating the LIC Unit No. II and thereby you committed the offences as contemplated by Section 120B r/s Section 419, 420, 465, 467, 468 and 471 of the RPC, which are within the cognizance of this Court.
10. A perusal of the charge shows that the charge is under Section 120B read with Sections 419, 420, 465, 467, 468 and 471, RPC but no substantive charge has been framed against the appellant under Sections 419, 420, 465, 467, 468 and 471, RPC.
11. Conspiracy to commit an offence is itself an offence and a person can be separately charged with respect to that. Therefore, for proving the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act as has been laid down by the Apex Court in the case of Vijayan v. State of Kerala (supra). In para 11, it has been observed as under:
So far as the circumstances for bringing home the charge of conspiracy under Section 120B against accused Sadanandan is concerned, less said the better. To bring home the charge of conspiracy within the ambit of Section 120B of the Indian Penal Code it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy.
12. In AIR 1967 SC 1326 : 1967 Cri LJ 1197, Fakhruddin v. The State of Madhya Pradesh, their Lordships of the Supreme Court have held as under:
...The offence of conspiracy cannot survive the acquittal of the allege co-conspirators. Fakhruddin cannot be convicted unless there be proof that he had conspired with person or persons other than his co-accused. If all the other accused have been acquitted of the charge of conspiracy, Fakhruddin alone cannot be held guilty. Moreover, the offences charged are such that they could have been perpetrated by different persons acting in the same manner but independently and the large number of petitions does not show per se that there was necessarily a conspiracy. When it must have been known that there was no verification, persons wishing to take advantage need not have conspired for they could act on their own and the similarly of method followed by them does not establish a planned operation by consensus. The charge of conspiracy must fail and Fakruddin is acquitted of that charge and the sentence passed under that charge against him is set aside.
13. The learned trial Court in the present case has acquitted co-accused of the appellant namely Sandesh Kumar Bhat and Anil Bhat by observing as under:
The question that arises for adjudication is as to whether accused Anil Bhat suppressed and concealed the fact that Kuldip Sharma was Avtar Krishan and did he know Avtar Krishan by such name prior to his act of introducing him in the bank as Kuldip Sharma. There is no evidence regarding this aspect of the case and the IO has not collected any evidence on that score. Anil Bhat accused in fact has made a clean and clear cut statement without...words as to how and in what circumstances he introduced Kuldip Sharma in the bank. Anil Bhat having been made to believe by his co villagers Shiban Krishan that Kuldip Sharma has also migrated and wants to open account at Jammu as he has shifted from Udhampur camp and Anil Bhat knowing and Shiban Krishan having believed him has taken pity on Kuldip Sharma has introduced him in the bank as Kuldip Sharma. Anil Bhat came to know that Kuldip Sharma is the fictitious name adopted by Avtar Krishan only during investigation of the case when police approached him and asked him to produce Kuldip Sharma whereupon Kuldip Sharma was produced and police arrested said Kuldip Sharma who is accused Avtar Krishan in this case. There is no evidence either circumstantial or direct regarding any conspiracy between three accused Sandesh Bhat, Anil Bhat and Avtar Krishan. The I.O. also has not collected any evidence in this case to establish that there were known to each other earlier as well and after Anil Bhat made introduction of Kuldip Sharma the name assumed by Avtar Krishan. No prosecution witness in the case is there that Anil Bhat knew Avtar Krishan as Avtar Krishan and knowingly he concealed the same and introduced him falsely as Kuldip Sharma. Anil Bhat accused ought to have been cited as witness in this case and in fact said Anil Bhat has himself admitted that he introduced Avtar Krishan as Kuldip Sharma and has given reasonable and plausible explanation for the same. Believing in good faith and having taken pity on a migrant is facing the present trial....
14. In the case in hand, the charge under Section 120B has not been proved as the prosecution has failed to prove that there was an agreement between the parties to conspire and that Sandesh Kumar Bhat stealthily took away the blank cheque. No. 455049 lying in the custody of Gopal Krishan, LIC Assistant and filled in the cheque, in his own handwriting the pay order of Rs. 32000 in favour of Kuldip Sharma and Vijay Kumar forged on this cheque the signatures of Mrs. Sudesh Khuda, HGA of LIC Unit-II and ML Basur, the then Branch Manager and handed over the cheque to the appellant who deposited the same in the fictitious account of Kuldip Sharma and withdrew the aforesaid amount as Kuldip Sharma.
15. When the co-accused of the appellant have been acquitted and the State has not filed any appeal or revision against their order of acquittal and the same having become final and the charge of conspiracy fails, then the appellant cannot be convicted and sentenced under Sections 467, 468 read with Sections 471 and 420, RPC, as no substantive and independent charge has been framed against the appellant under the said Sections nor the link in the chain is complete to prove the offence for which the appellant has been convicted and sentenced.
16. PW 1 Ashwani Kumar Ganju has deposed that in the year 1993, Sh V.K. Gupta was the Branch Manager. He stated that he was performing the duty of account opening and inquiry and pension etc. For opening a new account in" the bank, the process was that whoever wanted to open an account, he was to fill in form PNB-34 along with specimen care PNB 33. These two forms were to be filled by the person desirous of opening an account and after it was found that the forms are properly filled up, the specimen signatures used to be taken. The next step was regarding introduction which was to be taken on PNB from 34. Only that person could make introduction who used to have account in the bank and that account should have continued for six months. He stated that the form for opening of A/C No. 22709 pertaining to Gandhinagar Branch is in the name of one Kuldip Sharma. He has seen it and at the time the account was opened the introduction was made by Anil Bhat who was having A/C No. 22035. This account was opened on 10-2-1993. On the said date he was I/c of opening of account. He stated that the Account has been opened in the name of Sh Kuldip Sharma and the same bears his signatures. He stated that Avtar Krishan Koul gave specimen writings on 12 pages that was submitted by him to the IO in his presence and these pages bear his signatures. In the same manner Anil Bhat accused also gave his specimen writing on three pages. These were also signed by this witness. He stated that at the time of opening the Account No. 22709, the accused Avtar Krishan Koul had appeared before him and had disclosed his name as Kuldeep Sharma.
17. It has been noticed above that Anil Bhat, co-accused of the appellant has been acquitted by the trial Court but the trial Court has erroneously placed reliance on his statement made under Section 342, Cr. P. C. for convicting the appellant. The relevant part of the statement made by Anil Bhat reads as under:
Some time earlier in Feb. 1993, my villager Shiben Krishan after coming from Udhampur camp started living near my neighbourhood. Unluckily, one day I went to his house. I found him taking meals. In his front another person who told his name as Kuldip Sharma was sitting. Shiben Krishan told me that this Pandit resided with him at Udhampur camp and now has started living in Jammu. He wants to open migrant account. As per Shiben Krishan as he had no account in Jammu, so he told me to identify him because Shiben Krishan had asked me whether I had account anywhere, on which I told that I have account in PNB, branch Gandhinagar. On the second day, this person i.e. Kuldip Sharma came to my house and requested me to make introduction by taking pity on him being a migrant. On this, I introduced the person whom I did not know as Kuldip Sharma nor had met him. Later on, knowing about the police case, I asked Shiben Krishan to bring Kuldip Sharma as police was searching for him. On this Shiben Krishan told that Kuldip Sharma to whom police has named as Avtar Krishan Koul has been arrested. ...After introduction, I neither met Kuldip Sharma nor Sandesh Bhat, nor I know them.
18. The above statement of Anil Bhat, who was the co-accused along with the appellant, on which reliance has been placed by the trial Court is inadmissible in evidence as the appellant has not been given the opportunity to cross-examine him nor under the law, a co-accused when making statement under Section 342, Cr. P. C. can be cross-examined by another co-accused. The said statement made by co-accused Anil Bhat since acquitted, thus cannot be used as a piece of evidence against the appellant.
19. In , Narayan Swami v. State of Maharashtra, while considering the relevancy of the statement recorded under Section 342, Cr. P. C., of a co-accused, it was held that such a statement cannot be used against a co-accused. The purpose of recording statement under Section 342, Cr. P. C. is only to get an explanation of the accused regarding the incriminating circumstances appearing in the prosecution evidence which are sought to be used against him. Furthermore, the statement made under Section 342, Cr. P. C. is recorded without oath. As stated above that a co-accused has no chance to cross-examine another co-accused making the statement under aforesaid section, therefore, the aforesaid statement made by Anil Bhat a co-accused since acquitted cannot be used against the appellant.
20. Now it is to be seen whether on the account opening form and the withdrawal slip, there are signatures of the appellant. To prove this, the prosecution has examined BA Vaid, Assistant Government Examiner. He specifically stated that questions Q3, Q4, Q5, Q6, Q7 and Q9 were compared with the writing marks of S-14 to S-25 i.e. specimen writing and signature of Avtar Krishan Koul but he could not reach at a definite opinion regarding its authorship. This opinion has been given by BA Vaid after examining the habit of writing such as movement, speed, skill, relative size and proportion of letters and their combination, manner of execution of the first character and its loop. After considering all these characteristics, as indicated above, he could not reach at a definite opinion regarding its authorship.'
21. The prosecution has examined another witness namely I. U. Khan, Joint Director who has stated that the signatures on the opening of account and the card filled in by Avtar Krishan Koul in the name of Kuldeep Sharma are in the handwriting of Avtar Krishan Koul. The said witness, however, has not given any reason to differ with the opinion given by the first witness BA Vaid.
22. So one of the witness examined by the prosecution is landing support to the case of prosecution but another witness in this regard namely BA Vaid has not supported the case of the prosecution.
23. When the prosecution is examining two expert witnesses and when there is difference of opinion then it is the duty of the prosecution to explain the difference. In Tulsiram Kanu v. The State , their Lordships of the Supreme Court have held as under:
In ordinary circumstances, there would be nothing wrong in taking reports of Chemical examiner and Imperial Serologist on record without examining these persons as witnesses, as permitted by the Criminal Procedure Code. When, however, there is a difference of opinion in the reports so much so that the effect of the one report is to nullify the effect of the other, the duty to explain the difference is on the prosecution and the mere production of the report does not, under the circumstances, prove anything which can weigh against the accused...
24. It is settled proposition of law that the expert opinion must always be received with great care and caution. When there is two experts opinion and both the experts have been examined by the prosecution, the evidence of one of the expert is not confirmed by the other and when the prosecution fails to explain with regard to the difference of opinion, then it is unsafe to base a conviction solely on the expert opinion. In the instant case, there is no other evidence on the record except the expert opinion given by IU Khan against the appellant and that opinion too differs with the opinion given by other expert namely BA Vaid, therefore, under these circumstances, the conviction of the appellant cannot sustain. The prosecution has miserably failed to prove the case beyond shadow of any reasonable doubt.
25. For the reasons mentioned above, this appeal is accepted. The conviction and sentence awarded to the appellant is set aside. The appellant is on bail. His bail bond and surety bond shall stand discharged. Fine, if any, already paid shall be refunded to the appellant.
Disposed of accordingly.