Delhi District Court
State vs Rajeev Arya Etc.5 on 14 October, 2023
IN THE COURT OF SH. ANUBHAV JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
SHAHDARA DISTRICT, DELHI.
State Vs. Rajeev Arya & ors.
FIR No.: 376/2004
PS: Anand Vihar
JUDGMENT
A Case Identification 80542/2016
Number
B Name of the Vimal Malhotra
Complainant S/o Late Sh. O. P. Malhotra
R/o 78A, East Azad Nagar, Delhi.
C Name of the accused 1. Rajeev Arya S/o A. D. Arya persons & their 2. Sarika Arya W/o Rajeev Arya parentage 3. Darshan Kumar Popli S/o Sh. Amar Nath Popli (proceedings abated vide order dated 18.10.2021)
4. Ravinder Singh Bawa S/o Dayal Singh Bawa
5. Vijay Kumar S/o Late Ram Chander D Date of commission of 10.07.2014 the offences E Date of Institution of the 05.10.2004 case F Offences charged Offences u/s G Plea of accused persons Pleaded not guilty H Order Reserved on 16.09.2023 I Date of Pronouncement 14.10.2023 of judgment FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 1 of 44 J Final Order - Accused Sarika Arya, Vijay Kumar and R.S. Bawa stands acquitted for the offences they are charged for.
- Accused Rajeev Arya stands acquitted for the offence u/s 120 B IPC and stands convicted for the offence punishable u/s 418/467/409 IPC.
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Present accused persons are produced before the court to stand trial for the offence punishable u/s 409/120B IPC.
2. In brief, the facts of the case as per the prosecution are that on 27.04.2004, a complaint was filed by complainant namely Vimal Malhotra and Anu Malhotra stating therein that accused Rajeev Arya approached Vimal Malhotra at Krishna Nagar Post Office, while he was there for purchasing of Kisan Vikas Patra. It is further stated that accused Rajeev Arya introduced himself as Authorized Agent of Post Office and further offered his services to the complainant.
It is further stated that in the month of November, 2001, Rajeev Arya went to the house of complainant and informed him about monthly income scheme (MIS) of the post office and further upon the consistent approach by accused Rajeev Arya, both the complainants (Vimal Malhotra and Annu Malhotra) went to Post Office and opened two MIS Account i.e. Account bearing no. 13557 dated 27.11.2001 and account no. 13616 dated 04.12.2001 and FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 2 of 44 deposited an amount of Rs. 2,04,000/- in each of the account.
It is further stated that apart from opening two MIS Account, complainant got also opened one RD Account bearing no. 391664 dated 10.01.2014 and it was agreed that the amount of interest of Rs. 1,615/- per month, which was to be received from each MIS Account was to be deposited in the RD Account so opened by the complainant.
It is further stated that initially complainant used to visit the post office to get the interest from MIS Account be deposit in RD Account, however accused Rajeev Arya convinced them that he can do the same for the complainant and further got withdrawal voucher sign from the complainant for withdrawal of interest amount from two MIS Scheme and deposit the same in the RD Account.
It is further stated that on 29.04.2004, Rajeev Arya got two withdrawal voucher signed from the complainant & left and since thereafter, complainant has never seen accused Rajeev Arya.
It is further stated that on 30.06.2004, complainant visited the Krishna Nagar Post Office and he came to know that accused Rajeev Arya has absconded after playing fraud with his clients and he fled away with their cash. Complainant was further informed that his MIS Accounts have been closed and his balance was nil despite the fact that he has never authorised accused Rajeev Arya to close the same nor has written to Krishna Nagar Post Office about the same.
Upon the said complaint of the complainant, present FIR was lodged against accused Rajeev Arya for the offences punishable u/s 406/409/468/471/420/120B IPC.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 3 of 44 Investigation
3. During the course of investigation, IO collected statement of account and certified photocopies of MIS Account number 13557 & 13616 and of RD Account no. 391664. Further, it was found that all the amount from the said accounts was transferred in one Saving Bank Account. It was further found that all the documents were bearing signature of accused Rajeev Arya as agent. It was further found that interest from the MIS Scheme for the month of November, 2002, January 2003, February 2003, May 2003 and April 2004 was not got deposited in the RD Account.
Further, during the course of investigation, IO found that the saving bank account no. 612094 was got opened by accused Rajeev Arya with the help of bank staff and by forging the signature of complainant Vimal Malhotra. It was further found that accused Rajeev Arya got both the MIS Accounts closed pre-maturely and got their amount transferred in saving bank account no. 612094 i.e. an amount of Rs. 1,98,475 on 30.04.2004 and an amount of Rs. 2,00,090 on 01.05.2004 and withdraw the complete amount on 01.05.2004 by forging the signature of Vimal Malhotra and Anu Malhotra. It was further found that the said forged account was got opened on 13.04.2004 by paying Rs.100/-.
IO, further during the course of investigation, collected all the original documents obtained the specimen signature of accused Rajeev and Sarika Arya & sent the same to FSL, arrested the accused persons and sent them to JC.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 4 of 44 Further, during the investigation, IO interrogated the Senior Post Master Krishna Nagar and obtained the nominal role of the staff, as per which, it was found that on 30.04.2004 and 15.04.2004, clerk Sanjeev and Tarun were presiding over the seat of APM. Further, it was found that on 13.04.2004 and 01.05.2004, clerk Vijay Kumar and APM DK Popli were presiding over the seat of saving account.
Further, during investigation, it was found that while opening the forged account in the name of the complainant, same was signed by APM R. S. Bawa and while opening the said saving account bearing no. 612094, neither any photograph was taken nor the address and signature were verified. Further, no introducer was taken at the time of opening of the saving account.
It is further stated that clerk Vijay Kumar, who is known to accused Rajeev Arya, got opened the saving account of Vimal Malhotra and Anu Malhotra by using forged signature and further withdraw an amount of Rs. 3,98,400/- from the said account by forging the signature of the complainant. It is further stated that Vijay Kumar does not verify the signature of the complainant and further hand over the said amount to the accused Rajeev Arya in cash instead of cheque as per the settled rule. Further, the said withdrawal slip bears the initials of Vijay Kumar.
IO arrested accused Vijay Kumar and recorded his disclosure statement. Further, during PC Remand, no such amount could be recovered from Vijay Kumar. IO further obtained specimen signature of Vijay Kumar and sent the same to FSL.
Further, notice u/s 160 Cr.PC was served upon accused FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 5 of 44 D. K. Popli and Ravinder Singh Bawa, however they could not be traced and keep on evading the investigation of the present case. Further, both the above said persons obtained anticipatory bail, after which they joined the investigation.
After completion of investigation, IO filed the charge- sheet against the accused person namely Rajeev Arya, Sarika Arya, Vijay Kumar, DK Popli and RS Bawa for the offence u/s 406/420/467/468/471/120-B IPC.
4. Upon filing of the charge-sheet, Ld. Predecessor Court vide order dated 05.10.2004 directed to issue production warrants against accused persons namely Rajeev Arya & Sarika Arya and copy of the charge-sheet was supplied to them. Further, on 14.10.2004, the matter was listed for arguments on the point of charge.
Further, on 06.01.2005, supplementary charge-sheet filed against accused Vijay Kumar. Thereafter, on 02.12.2006, another supplementary charge-sheet was filed against accused Darshan Kumar Popli and Ravinder Kumar Bawa, upon which cognizance was taken by Ld. Predecessor Court on the same day and copy of charge- sheet was supplied to said accused persons.
5. Further, Ld. Predecessor Court vide order dated 27.10.2007 directed to frame charge for the offence u/s 409 IPC r/w 120B IPC against accused Vijay Kumar, Darshan Kumar Popli and Ravinder Singh Bawa, for offences u/s 418 IPC r/w 120B IPC against accused Sarika Arya and for offences u/s 418/409/467/120B IPC against accused Rajeev Arya.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 6 of 44 It is pertinent to state in here that the said order on charge was challenged by accused before Ld. Sessions Court, however the said revision was dismissed vide order dated 26.02.2009.
6. That thereafter prosecution, in order to prove its case, has examined 13 witnesses. The evidence so led by the prosecution witnesses is being stated as under :
PW-1 Vimal Kumar Malhotra deposed that accused Rajeev Arya had approached him at Krishna Nagar, Head Post office and introduced himself as an agent of the Post Office and further assured him that he shall provide all the services of the Post office. He further deposed that in the month of November, 2001, PW1/complainant along with his wife Annu Malhotra and accused Rajeev Arya went to Post Office, Krishna Nagar, where two MIS accounts were get opened, one in the name of Vimal Malhotra & another in the name of Annu Malhotra and Rs.2,04,000/- in cash were deposited in each of above MIS accounts. He further deposed that after opening of the two MIS accounts, one RD account was also got opened in the post office and Rs. 1,615/- monthly (interest from MIS Account) was to be deposited in the said RD account. He further deposed that initially, he used to visit post office, however, after some time, accused Rajeev Arya asked him not to visit post office for depositing the interest amount in RD account and accused Rajeev Arya will do the same. He further deposed that accused Rajeev Arya had also kept his passbooks for depositing the interest amount in RD FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 7 of 44 account. He further deposed that accused Rajeev Arya used to visit their house for the purpose of getting signatures on blank withdrawl form / voucher and accused Rajeev Arya stated that he will fill the remaining particulars in the said withdrawl form / vouchers. He further deposed that on 29.042004, accused Rajeev Arya got his signatures on two withdrawl vouchers and thereafter, never visited his house. He further deposed that in the month of June, 2004, he went to Post Office, Krishna Nagar, and inquired about accused Rajeev Arya and he came to know that accused Rajeev Arya stopped coming to Post Office as he had defrauded his client and ran way. He further deposed that he also visited the house of accused Rajeev Arya, where brother of accused met him and told that they are not aware about the present whereabouts of accused Rajeev Arya and a missing report in this regard is also lodged by brother of accused Rajeev Arya. He further deposed that he has never authorized accused Rajeev Arya to close his MIS account nor had given any written application to Post Office, Krishna Nagar.
Witness also proved his complaint dated 24.07.2004 Ex.PW1/A, application for opening of MIS account no. 13557 & 13616 in the name of Vimal Malhotra & Annu Malhotra Ex.PA & PB, RD account no. 391644 in the name of Vimal Malhotra & Annu Malhotra Ex.PC, application for opening an account no. 612094 Ex.PD, withdrawl form Ex.PE to PN. He further deposed that on 04.09.2004, his specimen signatures Ex.PW1/B to Ex.PW1/E were taken by the IO. Witness correctly identified accused Rajeev Arya in the Court.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 8 of 44 PW-2 Annu Malhotra deposed that accused Rajeev Arya came to her house and told about the MIS scheme of post office and also assured good returns. She further deposed that on the basis of said assurances, she along with her husband opened MIS account through accused Rajeev Arya. Witness correctly identified accused persons in the Court.
Leading questions were put to the witness by Ld. APP for the State since the witness did not disclose the complete facts. During the same, PW2 admitted that in November, 2011, she & her husband opened two MIS accounts separately through accused Rajeev Arya of Rs.2,04,000/- each. She further admitted that she & her husband opened one RD account through accused Sarika to deposit the interest of MIS account. She also admitted that in the starting they used to deposit the interest in their MIS accounts in the RD account by themselves but later on, accused Rajeev Arya used to do the same. She further admitted that accused Rajeev Arya collected withdrawl form till April, 2004 and thereafter, when he did not turn up, his husband / complainant went to the post office where he came to know that accused Rajeev Arya had fled away after committing fraud. She further admitted that thereafter, one of the employee from Post Office came to her house and informed them that their post office accounts were closed prematurely & their balance is Nil. She further admitted that on 04.09.2004, police officials took her specimen signatures Ex.PW2/A, Ex.PW2/A1, Ex.PW2/A2 & Ex.PW2/A3.
Witness further admitted that a sum of Rs.4,08,000/- is to be refunded by accused Rajeev Arya, which was paid by her & her husband and accused has not paid the said amount despite repeated FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 9 of 44 demands. She further stated that accused had committed cheating in respect of aforesaid amount by fogring her & her husband' signatures & opening a forged amount. She further deposed that accused Rajeev Arya transferred the amount of their first account to newly opened account, which was not opened by them and was opened by accused Rajeev Arya & his wife Sarika. She admitted her signatures on application for account opening Ex.PA.
PW-3 Ct. Sushil deposed that on 09.08.20004, he joined investigation of the present case and the disclosure statement of accused Rajeev Arya was recorded in his presence vide Ex.PW3/A wherein accused confessed that he had withdrawn money from the post office account of Vimal Malhotra & Annu Malhotra and thereafter, accused Rajeev Arya was arrested vide arrest memo Ex.PW3/B. PW-4 Dinesh Chandra Sharma beside reiterating the facts so stated by the complainant, further stated that he conducted joint inquiry in the present matter, report of which is Ex.PW4/A and he found that accused Vijay Kumar, R. S. Bawa, Tarun Bhardwaj, Sanjeev Sharma, D. K. Popli and Sunder Lal are main offenders. It is further stated that the accused persons has flouted the maximum sealing limit of deposit (which was Rs. 1 lakh) by depositing Rs.1,98,475/- in MIS a/c no. 13616 & Rs.2,00,090/- in SB a/c no. 13616.
He further deposed that accused Rajeev Arya withdraw the amount of Rs.3,98,400/- from the said saving bank account in FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 10 of 44 cash on 01.05.2004 and accused Vijay Kumar put his initials under the signatures of Vimal Malhotra on the withdrawl form. He further deposed that during investigation, he found that specimen signatures of Vimal Malhotra are not tallied with his signatures upon the withdrawl form.
He further deposed that SB account bearing no. 612094 was opened without taking complete documents i.e. residential proof and photographs of depositor.
Witness further proved that signatures at point A, B & C in the name of Vimal Malhotra on Ex.P-D, that were not tallied with the specimen signatures of Vimal Malhotra made on Ex.P-A, Ex.P-B & Ex.P-C and the said facts are mentioned in his report Ex.PW4/A. Witness correctly identified all accused persons in the court.
PW-5 Suresh Dutt Tyagi, Retd. Senior Postmaster, Krishna Nagar, Head office, Delhi, deposed that on 01.07.2004, he has joined his duty as Senior Post Master Krishna Nagar, Head Office, after the retirement of Sh. K. K. Vishnoi.
He further deposed that he handed over documents i.e. attested copy of renewal letter, photocopy of appointment of accused Rajeev Arya agent, photocopy of license issued by Standardized Agency System, photocopy of renewal letter in the name of accused Sarika Arya, license issued in the name of accused Sarika Arya, appointment letter as Mahila Pradhan in the name of accused Sarika Arya, photocopy of license in the name of accused Sarika Arya issued under Mahila Pradhan Bachat Yojna, photocopies of application for FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 11 of 44 opening account, withdrawal form, statement of account number 612095, 14010, 14011, 14888, 14889, 392833, 395528, 17786, 17787, 391645, to IO, Ex.PW5/A to Ex.PW5/E. He further deposed that he also handed over original documents Ex.PA to Ex.P-9.
The said witness was cross-examined by Ld. APP for the State since the said witness resiled from his previous statement and during his cross-examination by Ld. APP for the State, witness denied giving any statement u/s 161 Cr.PC to the IO.
PW-5 Roop Chand deposed that he was posted as Deputy Postmaster in Treasury branch, Krishna Nagar, Post Office, Delhi from 2003 to March, 2008. He further deposed that he has no direct dealing or concern with the present matter and he came to know about the scam of present case when inquiry was set up and Sh. D. C. Sharma was made the inquiry officer. He further deposed that he along with one lady namely Promila Gupta, Incharge Administration Branch, was directed to keep all the voucher concerning the present case in joint custody and during investigation, they both handed over the vouchers of the police officers.
He further deposed that he did not deal with any saving account or any account transaction done at Post office branch nor he can identify the signatures of any accused person on SB-7 form & application of opening account.
Witness correctly identified accused Vijay Kumar, R.S. Bawa and D. K. Popli in the court.
The said witness was cross-examined by Ld. APP for the State since the said witness resiled from his previous statement and FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 12 of 44 during his cross-examination by Ld. APP for the State, witness denied giving any statement u/s 161 Cr.PC to the IO.
PW-6 W/HC Sunita deposed that on 06.08.2004, accused Sarika Arya was with her in police custody and IO SI Jaiveer Rathi had arrested accused Sarika Arya in her presence vide arrest memo Ex.PW6/A and IO recorded disclosure statement of accused Sarika Arya. Witness correctly identified accused Sarika Arya in the present case.
PW-7 Sh. J. K. M. Tripathi, Post Master, Patparganj Post Office, Delhi-91 deposed that he joined at Krishna Nagar Post office in 1990 and thereafter, he was transferred from Krishna Nagar post office and that he remained posted in Krishna Nagar post office in year 2004 as Public Relation Officer. He further deposed that his duty was in the file and he used to attend the courts regarding the departmental cases. He further deposed that he know about a scam took place at Krishna Nagar post office in the year 2004 but he does not know the names of the persons who committed that scam, however, the fraud was committed through agent and he does not remember the amount in respect of which scam was committed.
He further deposed that he cannot identify the signatures of accused R.S. Bawa, D.K. Popli and Vijay Kumar. He further deposed that during investigation of the case, police has shown him the original documents of the post office but he did not identify the signature of any person on the above said documents.
Witness correctly identified four accused persons namely FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 13 of 44 R.S. Bawa, D.K. Popli, Vijay Kumar and Rajiv Arya in the court.
PW-8 Ct. Dharmender deposed that on 03.11.2004, he joined the investigation of the present case with IO SI Jai Veer. He further deposed that IO SI Ram Avtar arrested accused Vijay Kumar vide arrest memo Ex.PW8/B and recorded disclosure statement of accused Vijay Kumar Ex.PW8/A PW-9 Inspector Jaibir Singh deposed that on 27.07.2004, he received one complaint (Ex.PW1/A) of complainant Vimal Malhotra & Annu Malhotra from the Reader of the then SHO PS Anand Vihar. He further deposed that he made formal inquiry on the said complaint and on 01.08.2004, he made endorsement on the same Ex.PW9/A. He further deposed that thereafter, after registration of FIR, he went to Post Office Krishna Nagar, where he obtained certified copies / documents Ex.PW5/7, Ex.PW5/8, Ex.PW5/B, Ex.PW5/C, Ex.PW5/D, Ex.PW5/E, Ex.PW5/9, Mark PW5/10, Mark PW5/11 & Mark PW5/12 from Senior Post Master on 04.08.204 & 05.08.2004. He further deposed that he formally arrested accused Sarika Arya vide arrest memo Ex.PW6/A, recorded her disclosure statement Ex.PW6/B and obtained her specimen handwriting Ex.S-15 to S-19.
He further deposed that on 09.08.2004, he formally arrested accused Rajeev Arya vide arrest memo Ex.PW3/B, recorded his disclosure statement Ex.PW3/A and obtained his specimen signature & handwriting Ex.S-10 to S-14 and Ex.S-24 - Ex.S-38.
He further deposed that original documents pertaining to FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 14 of 44 present case were obtained from post office i.e. Ex.PA to PN and Ex.PO to PQ. Thereafter, he filed the charge-sheet qua accused Rajeev Arya & Sarika Arya before the Court.
He further deposed that he also conducted further investigation of the present case and he came to know that during the relevant time, accused Vijay Kumar was also working at Saving seat in Krishna Nagar, Post Office and on 03.11.2004, SI Ram Avtar formally arrested accused Vijay Kumar in case FIR no. 264/04 PS Anand Vihar. He further deposed that he interrogated accused Vijay Kumar and formally arrested accused Vijay Kumar in the present case vide Ex.PW8/B, conducted his personal search vide Ex.PW8/C and recorded his disclosure statement vide Ex.PW8/A and further, he also obtained specimen signature of accused Vijay Kumar vide Ex.S-20 to S-23 and S-39 to S-47.
He further deposed that on 04.09.2004, he obtained the specimen signatures of complainant Vimal Malhotra & his wife Annu Malhotra vide Ex.PW1/B to Ex.PW1/E and Ex.PW2/A to Ex.PW2/A3 respectively.
He further deposed that he also obtained photocopy of license of accused Rajeev Arya and Sarika Arya Ex.PW5/A, Ex.PW5/1, Mark PW5/2, Mark PW5/3, Mark PW5/4, Mark PW5/5 & Mark PW5/6 and thereafter sanction to prosecute accused Vijay Kumar was obtained from Sr. Superintendent, Post Master vide sanction order Ex.PW9/A. Thereafter he prepared the supplementary challan.
Witness correctly identified accused Rajiv Arya, Sarika and Vijay Kumar in the court.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 15 of 44 PW-10 W/ SI Poonam Tomar, who was the duty officer, has proved the registration of present FIR, vide Ex.D1, endorsement on the rukka Ex.D2. She further deposed that register no.2 and Rojnamcha (daily diary A & B) dt. 01.08.2004 has been destroyed and she has produced the relevant order vide Ex.PW10/A. PW-10 Ct. Sombir Singh deposed that on 17.08.2006 at about 08.50 pm, accused Ravinder Bawa was arrested in the present case at PP ISBT Anand Vihar vide arrest memo Ex.PW10/A. Witness correctly identified accused Ravinder Bawa in the court.
PW-11 Retd. Inspector V. K. Verma deposed that he received investigation of the present case in the year 2006 and on 17.08.2006, he formally arrested accused Ravinder Bawa at PP ISBT Anand Vihar vide arrest memo Ex.PW10/A after necessary interrogation as he was on anticipatory bail and he also recorded statement statement of Ct. Bhujender.
PW11 further deposed that thereafter, investigation was handed over to SI K. J. Singh. He also recorded statement of Ct. Sombir Singh, who was present at the time of arrest of accused Ravinder Bawa. Witness correctly identified accused Ravinder Bawa in the court.
PW-12 Inspector K. J. Singh deposed that on 28.10.2006, investigation of the present case was marked to him and he formally arrested accused D. K. Popli on 07.11.2006 at PP ISBT FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 16 of 44 Anand Vihar in the presence of Ct. Bhujender, vide arrest memo Ex.PW12/A and he also recorded statement statement of Ct. Bhujender. He further deposed that thereafter, he filed supplementary charge-sheet against accused D. K. Popli & R. S. Bawa. Witness correctly identified accused D. K. Popli (Darshan Kumar Popli) in the court.
7. After completion of prosecution evidence, same was closed on 11.07.2018 and matter was listed for recording of statement of all the accused persons u/s 313 Cr.PC.
8. In the statement u/s 313 Cr.PC, all accused persons deposed as under:
a. Accused Rajeev Arya beside denying the allegations so leveled against him have stated that during the period from February- December 2004, he was upset since he had quarrel with his brother and his second daughter born on 05.10.2004. He further stated that he used to take filled up withdrawal form and he has never taken any amount from the account of the complainant. He further denied having any relation with RS Bawa, Vijay Kumar or DK Popli. He further stated that he has been falsely implicated in the present case.
b. Accused Sarika Arya beside denying the allegations so leveled against her stated that she does not know the complainant or his wife and that she has never met them. She further questioned the investigation being carried out in the present matter and stated that FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 17 of 44 she is falsely implicated in the present case. The accused Sarika Arya stated that she is agent and have not done any work of opening and closing of bank account.
c. Accused Vijay Kumar beside denying the allegations so leveled against him stated that all the work was done by him as per the post office rules and regulations. He further stated that all the withdrawals were made by the agent after due compliance of rules of the post office. He further denied signing any document and further stated that he was merely take care of saving bank account counter. He further stated that he have been falsely implicated in the present case.
d. Further both the accused D. K. Popli and R. S. Bawa beside denying the allegations so leveled against them stated that they are not aware as to the facts of the present case and that they have done their job as per rules and regulations of post office.
9. During the course of Defence Evidence, accused persons examined Sh. J. P. Rajor, Superintendent of Post Office Staff as DW- 1, who deposed that he was appointed as inquiry authority in relation to case of R. S. Bawa and D. K. Popli and he concluded the inquiry, the charges against R. S. Bawa and d. K. Popli were not proved and it was held that they had done their official work as per post office rules. He further deposed that preliminary inquiry was conducted by D. C. Sharma and final inquiry was conducted by him. He further proved the inquiry report Ex.DW1/A and Ex.DW1/B. FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 18 of 44 Accused has further examined one Sh. Arjun Dev Arya as DW2. The testimony of DW2 is reproduced as under for the sake of convenience :
"I have brought my aadhar card no. 431881178456, copy of the same is Ex. DW-2/A (OSR). I am retired from Northern Railway on 30.04.2002 and I have brought my pension holder identity card, copy of the same is Ex. DW- 2/B (OSR). Accused Rajeev Arya is my son and accused Sarika Arya is my daughter-in-law. My daughter-in-law Sarika Arya was pregnant in the year 2003-04 and she delivered my grand daughter on 05.02.2004 at Sona Maternity and Nursing Home, 4/1925, Rama Block, Bhola Nath Nagar, Shahdara, Delhi-32. Copy of the birth certificate of the said child born on 05.02.2004 is Ex. DW- 2/C (OSR) (objected to by Ld. APP as to mode and manner of proof). Copy of vaccination card of Sona Maternity and Nursing Home is also filed as Ex. DW-2/D (OSR) (objected to by Ld. APP as to mode and manner of proof). That my daughter-in-law Sarika Arya delivered the child by surgery and thereafter, she was medically advised for bed rest and we i.e. myself and my wife had served her and taken care of her as she was residing with her husband Rajeev Arya with us at my aforesaid house. My daughter-in-law remained at home during her pregnancy as well as after her delivery at our house and remained there itself. My daughter-in-law took the treatment and got recovered at home thereafter."
Thereafter, DE was closed and matter was listed for final arguments.
10. It is argued by Ld. APP for the State that the complainant has supported the case of the prosecution. It is further argued that as per FSL report as well as testimony of D. C. Sharma, the signatures upon the withdrawl form & account opening form of SB a/c were not made by the complainant and same bear the signatures of accused FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 19 of 44 Rajeev Arya. It is further argued that the offence so committed by accused Rajeev Arya in conspiracy with other post office officials as well as his wife Sarika Arya are serious in nature since he has cheated the complainant by forging his signatures. It is further argued that prosecution has proved its case beyond reasonable doubt and that accused persons are liable to be punished for the offences charged.
11. On the other hand, it is argued by Ld. Counsel for accused Rajeev Arya and Sarika Arya that there are several contradictions in the testimonies of the witnesses. It is further argued that the signatures so relied upon by the prosecution were not taken after the permission of the court and same were taken by the IO at the PS only. It is further argued that there is no iota of evidence against accused Sarika Arya that she was part of conspiracy with accused Rajeev Arya and as such, prosecution has failed to prove its case against accused Rajeev Arya and accused Sarika Arya and they are entitled for acquittal in the present case.
Further, with regard to accused Vijay Kumar and R. S. Bawa, it is argued that no evidence has been brought forth by the prosecution that above said persons are part of conspiracy. It is further argued that none of the prosecution witnesses have supported the case of the prosecution qua accused Vijay Kumar and R. S. Bawa. It is further argued that the report filed by D. C. Sharma was merely preliminary inquiry and both accused persons were exonerated by Sh. J. P. Rajor after the final inquiry. He has argued that prosecution has failed to prove its case against accused Vijay Kumar and R. S. Bawa and they are entitled to be acquitted in the present case.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 20 of 44 It is pertinent to state in here that accused Darshan Kumar Popli (D. K. Popli) has expired during the trial and proceedings against him stood abated vide order dated 18.10.2021.
12. I have heard the arguments so led by Ld. Counsels for the parties and perused the case file carefully.
13. It is settled proposition of criminal law that burden lies upon prosecution to prove its case beyond reasonable doubt by leading reliable, cogent, and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit from the weaknesses, if any, in the defense of the accused.
14. At this stage, this court deems it appropriate that role of each of the accused along with evidence with regard to him shall be dealt with separately for the sake of convenience.
Accused Rajeev Arya
15. In brief, it is the case of the complainant against accused Rajeev Arya that:
a) That complainant Vimal Malhotra and Anu Malhotra opened 3 accounts in Post Office, Krishna Nagar Branch:
i) MIS Account no. 13557
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 21 of 44
ii) MIS Account no. 13616
iii) RD Account no. 391644
a) That complainant deposited Rs. 2,04,000/- in each MIS account and interest from MIS account has to be deposited in RD account.
b) That Rajeev Arya introduced himself as authorized agent in post office and further extended his services to the complainant.
c) That Rajeev Arya used to visit at the house of the complainant and used to get signature of the complainant on withdrawal slip for withdrawal of interest amount from MIS account and deposit the same in RD account.
d) That Rajeev Arya, with the connivance of post office staff:
i) Got opened one SB account no. 612094 of the complainant by forging signature off the complainant;
ii) Pre-maturely closed the MIS account of the complainant, without his knowledge;
iii) Transfer all amount from MIS account in fake SB account;
iv) Withdraw all the amount in cash from the said SB account.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 22 of 44 Facts Admitted/ Not Denied
16. Accused Rajeev Arya in his statement u/s 294 Cr.P.C admitted the fact that he was authorized agent under Authorized Agency System of Post office from 09.03.1999 till 16.01.2005.
17. Further accused Rajeev Arya neither during the course of cross examination of the complainant nor in his statement u/s 313 Cr.P.C denied the fact that he does not know complainant or was not extending his services to the complainant.
18. Further, the documents i.e. application for opening of MIS Account no. 13616 and 13557 and signature of Rajeev Arya as agent upon the same is not disputed. Also, the account opening form of RD Account bearing no. 319644 and signature of Sarika Arya upon the same as agent is also not disputed either by the complainant or the accused.
Point of Conflict
19. The complainant, however, stated that;
a) He never authorized any person to open any SB account, nor he opened the same on his own;
b) He never authorized transfer of amount from MIS accounts to SB account;
c) He never authorized pre-mature closure of MIS accounts;
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 23 of 44
d) His amount of Rs. 3,98,400/- was withdrawn from SB account which was never received by him or authorized by him.
e) That accused Rajeev Arya used to take blank signed withdrawal slips from him in order to withdraw the Interest amount from MIS account and deposit the same in SB account.
20. Accused Rajeev Arya, who never denied the fact that he was extending his services to the complainant however in his defense has stated that he used to take filled up forms from the costumers and that he never withdraw any amount from account of his customer.
Evidence Led by Prosecution
21. Prosecution in order to prove its case against accused Rajeev Arya, apart from examining the complainant has placed on record application for opening the SB account bearing no. 612094 as well as withdrawal slip dated 01.04.2005. Prosecution has further send the said documents to FSL for verification of signature of complainant and accused over the same. As per the said FSL report, accused Rajeev Arya has forged the signatures of complainant Vimal Malhotra and his wife Anu Malhotra over the Account opening form of SB account no. 612094.
Arguments on behalf of accused Rajeev Arya
22. It is argued by Ld. Counsel for accused Rajeev Arya that the complainant Vimal Mahotra during the course of his testimony, FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 24 of 44 failed to disclose the complete facts and has further failed to explain the reason for delay in lodging of FIR. It is further stated that the complainant failed to inform the voucher no. etc. It is further stated that complainant Annu Malhotra did not disclose the complete facts during the examination. It is further argued that no independent witness was made to join in the investigation and further as per the testimony of PW4, Post Office officials are the main accused. It is further argued that no substantial evidence has brought forth by the prosecution in order to prove its case and that accused Rajeev Arya is entitled to be acquitted for the offences he has been charged for.
Legal Preposition
23. In light of facts and evidences discussed above, this court, at this stage, deems it appropriate to discuss in here legal proposition with regard to evidences led by the prosecution.
a) Evidence of complainant
24. As discussed above, complainant Vimal Malhotra has supported the case of prosecution and stated that accused Rajeev Arya have committed criminal breach of trust by misappropriating his amount by opening SB account after forging signature of the complainant and thereafter withdrawing the money from the same. As such, it would be just to discuss in here law with regard to evidentiary value attached to testimony of injured. For the same, I may gainfully refer to observation made by Hon'ble Apex Court in Mano Dutt v.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 25 of 44 State of U.P., (2012) 4 SCC 79 : (2012) 2 SCC (Cri) 226 wherein Hon'ble Supreme Court observes as follows:
30. Salik Ram was examined as PW 2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. In our view non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.
31. We may merely refer to Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] where this Court held as under: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Machhi Singh v. State of Punjab [(1983) 3 SCC 470 :
1983 SCC (Cri) 681] , Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559] , Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113] , Bhag Singh [Bhag Singh v. State of Punjab, (1997) 7 SCC 712 : 1997 SCC (Cri) 1163] , Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] , Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 26 of 44 302] , Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 :
(2010) 1 SCC (Cri) 107] where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 :
2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 :
(2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 27 of 44 merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." To the similar effect is the judgment of this Court in Balraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .
25. In the present case, complainant Vimal Malhotra was cross examined at length by Ld. Counsel for accused Rajeev Arya, however, apart from minor omissions, nothing has been brought forth so as to discard his testimony. With regard to omissions in testimony of complainant, Hon'ble Apex Court in Kishan Singh Rawat vs State, CRL.A. 7/2006 observed as follows :
In the case of Shyamal Ghosh v. State of West Bengal, reported at 2012 (7) SCC 646, it has been held by the Apex Court that while considering contradictions the Courts must read the testimonies of the witnesses as a whole and only consider those aspects, which go to the root of the matter and no further contradiction would affect the case of the prosecution. Relevant portion of the judgment reads as under:
"46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there is some variation in the statement of PW 7,W 9 and PW 11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.
47. xxxx FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 28 of 44
48. xxxx
49. It is a settled principle of law that the Court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.
xxxxx
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contra-distinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes I may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 29 of 44 it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
70. In terms of the explanation to Section 162 Cr.P.C. which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context shall be a question of fact. A bare reading of this explanation reveals that if a significant omission is made in a statement of a witness under Section 161 Cr.P.C., the same may amount to contradiction and the question whether it so amounts is a question of fact in each case.
(Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 and Subhash v. State of Haryana (2011) 2 SCC 715.
In the present matter, offence is alleged to have taken place in the month of April / May,2004, while the testimony of the complainant was recorded on 25.06.2010 i.e. after lapse of six years. As such, certain omissions in the testimony of the complainant are bound to occur and are natural. Furthermore, the complainant during the course of his testimony had identified all the documents which are material to prove the case of the prosecution.
b) Statement of accused u/s 313 Cr.P.C
26. In the present case, accused Rajeev Arya in his statement u/s 313 Cr.P.C. has vaguely replied to the questions so put to him. Accused in his statement u/s 313 Cr.P.C. has not clearly explained the circumstances leading to present complaint against him. Before FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 30 of 44 proceeding further with the answers so given by the accused, this court deems it appropriate to discuss in here law with regard to evidentiary value attached to statement u/s 313 Cr.P.C. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 Hon'ble Apex Court observed as follows:
52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.
Further, in Hon'ble Apex Court in Pudhu Raja v. State, (2012) 11 SCC 196 observed as follows:
17. It is obligatory on the part of the accused while being examined under Section 313 CrPC, to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (See Transport Commr. v. S. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983 SC 1225] , State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] and Musheer Khan v. State of M.P. [(2010) 2 SCC 748 : (2010) 2 SCC (Cri) 1100] ) FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 31 of 44
27. In light of the law discussed above, coming upon the answers so given by accused Rajeev Arya in his statement u/s 313 Cr.P.C. For the sake of convenience, relevant portion of the statement u/s 313 Cr.P.C. of accused Rajeev Arya is being reproduced as under :
".... It is incorrect that PW1 had ever given any signed withdrawl form to me. It is incorrect that I have closed the MIS account of the complainant. I did not withdraw any amount from it. It is incorrect that I have committed any fraud. During the period from February to May, 2004, it was upset as I have quarrel with my brother and second daughter was born on 05.02.2004. Due to said reason, I was wandering out of town and due to my absence as I was not taking the withdrawl form of MIS account to transfer in RD account from the complainant, the complainant had made false complaint Ex.PW1/A against me. I was falsely implicated in the present case....."
28. Bare perusal of reply so adduced by the accused in his statement u/s 313 Cr.P.C. goes to show that same are evasive and vague and are not per se explaining the circumstances leading to present case against him. Accused, has never explained as to circumstances as to how SB account of the complainant was opened and MIS account of complainant was closed prematurely and his money was transferred from MIS account to SB account and was withdrawn thereof.
29. Furthermore, accused Rajeev Arya, as discussed above, has not brought forth any evidence in support of his defence to to rebut the case of prosecution against him.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 32 of 44 FSL Evidence
30. With regard to evidentiary value of FSL report, it is settled proposition of law that conviction cannot be based merely on the basis of FSL report, unless there is other corroborative pieces of evidences.
31. As per FSL report as well as testimony of PW-5, during the examination of signatures of the accused over documents in question it was found that accused Rajeev Arya has duly filled up application for account opening form of SB account bearing number 612094 Ex. PD and same is in hand writing of accused Rajeev Arya. Further it was found that signature of accused Rajeev Arya over the same matches with his admitted signatures. Further as per the FSL report and testimony of PW-5, signatures of complainant Vimal Malhotra ( point Q4 to Q7) and signature of Anu Malhotra ( point Q15 to Q18) over the said form Ex. PD are also in hand writing of Rajeev Arya as same matches with admitted signatures of Rajeev Arya.
At this stage, it is pertinent to note that from the bare perusal of the signatures of Vimal Malhotra and Anu Malhotra of the said form appears to be forged as same does not match with admitted signature of complainant and Anu Malhotra. It is pertinent to state in here that while in all the admitted documents signatures of Anu Malhotra mentioned as " Anu Malhotra", in the bank opening form Ex. PD, same mentions as "Annu".
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 33 of 44
32. As such, as per the FSL report, accused Rajeev Arya has got opened saving bank account number 612094 in the post office by forging signature of complainant and Anu Malhotra over the same.
33. Once it has came on record that the SB account bearing number 612094 was not opened by complainant Vimal Malhotra or his wife Anu Malhotra (as per FSL report & testimony of complainant), and same was opened by accused Rajeev Arya by forging signatures of complainant and his wife upon the same, another question which requires determination is as to who has withdrawn the amount from the said Saving Bank account. In this regard, prosecution has placed on record withdrawal forms Ex. PF-PQ dated 30.04.2004 and 01.05.2005. As per the FSL report all the said documents are duly filled in hand writing of Rajeev Arya.
34. Further, as per the FSL report, signatures of Vimal Malhotra were found present in two withdrawal forms in Ex. PE and Ex. PF, however, same goes to corroborate the version of complainant that accused Rajeev Arya used to obtain blank signed withdrawl form from him, which were subsequently misused by him.
35. As such, testimony of complainant that he has not got opened any SB account or permitted withdrawal of any money from the same, is duly corroborated by the FSL report so placed on record. Further, considering that signatures of Rajeev Arya is available on FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 34 of 44 both the documents and are duly matched with admitted signature of Rajeev Arya goes to show that both the documents were presented by Rajeev Arya for opening of SB account of complainant and withdrawal of amount from the same.
36. In light of the discussion made above:
a) That complainant in his testimony have specifically stated that Rajeev Arya was his authorized agent to look after the work of Post Office.
b) That it is stated by complainant that accused Rajeev Arya used to obtained his signatures on blank signed forms.
c) That nothing contradictory, with regard to the above said averment, has come forth during the cross-examination of complainant Vimal Malhotra.
d) That complainant has further stated that he never got opened any SB account, nor has directed to close his MIS accounts or to transfer the same amount from MIS account to SB account or to withdraw the said amount from SB account.
e) That averments so made by the complainant is duly supported by the FSL report, showing that all the said documents are in hand writing of and bears signatures of Rajeev Arya.
f) Accused Rajeev Arya, never denied that fact that he knew complainant or was working for complainant as agent (for post office work) or that he used to visit house of complainant and obtained documents for him.
g) Accused Rajeev Arya gave evasive replies in his statement u/s FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 35 of 44 313 Cr.P.C and failed to explain the complete circumstances leading to present case against him.
h) No evidence was brought forth by accused Rajeev Arya in order to put his defence or to rebut the case of prosecution.
i) Nothing is placed on record by accused Rajeev Arya to show that accused has motive to falsely implicate him in the present case;
The only conclusion which can be brought forth is that accused Rajeev Arya has forged the documents Account opening form (to open SB account no. 612094) and further mis-used the withdrawal forms signed by the complainant to transfer the amount from MIS account (of the complainant and Anu Malhotra) to SB account and thereafter withdrawing the amount from the same.
37. In view of the same, since it is proved beyond reasonable doubt by prosecution that accused Rajeev Arya, being authorized agent of the complainant and bound by law to protect the interest of complainant, opened fake saving bank account of the complainant by forging the signatures of complainant and his wife Anu Malhotra and further by misusing the withdrawal slips (duly signed) and handed over to accused by complainant by transferring the amount from MIS accounts of the complainant into said SB account (which was opened by accused by forging signatures of complainant over the same) and withdrawing the amount from the same in cash, accused Rajeev Arya is convicted for the offence u/s 418/467/409 IPC.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 36 of 44
38. It is pertinent to state in here that accused Rajeev Arya is also charged for the offence of criminal conspiracy u/s 120-B IPC, since it is stated that accused has committed above said offence in conspiracy with his wife Sarika Arya and post office officials R.S. Bawa, D.K. Popli and Vijay Kumar. As such, with regard to offence u/s 120 B IPC against accused Rajeev Arya, can be considered only after considering role of other accused persons in the present case.
Accused Sarika Arya
39. With regards to accused Sarika Arya, it is alleged that:
a. She is wife of accused Rajeev Arya.
b. She was working as RD account agent in Post Office.
c. RD account opened by complainant was through accused
Sarika Arya.
40. Accused Sarika Arya, in her statement u/s 313 Cr.P.C denied all the allegations so levelled against her and further stated she never visited the house of complainant and was falsely implicated in the present case.
41. As discussed above, accused Sarika Arya is charged by Ld. Predecessor Court for the offence u/s 418 IPC r/w sec. 120-B IPC. As such, before proceeding further with accusations against FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 37 of 44 accused Sarika Arya, this court deems it appropriate to discuss in here law with regards to criminal conspiracy. For the same, I may gainfully refer to the observations made by Hon'ble Apex Court in Baldev Singh v. State of Punjab, (2009) 6 SCC 564,
20. In K.R. Purushothaman v. State of Kerala [(2005) 12 SCC 631 : (2006) 1 SCC (Cri) 686] this Court held:
(SCC pp. 636-38, paras 11 & 13) "11. Section 120-A IPC defines 'criminal conspiracy'.
According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or
(ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G. Barsay v. State of Bombay [AIR 1961 SC 1762 : (1962) 2 SCR 195] Subba Rao, J., speaking for the Court has said: (AIR p. 1778, para 31) '31. ... The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.' ***
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 38 of 44 which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement."
42. Accused Sarika Arya is wife of accused Rajeev Arya & is further working as RD account agent in Post office. Further, in the discussions made qua accused Rajeev Arya, it is held that accused Rajeev Arya has committed offences punishable u/s 418/467/409 IPC.
43. As such, the question which is required to be determined is, whether there is sufficient evidence brought on record by prosecution against accused Sarika Arya, so as to held her liable for the offences she is charged for.
44. It is pertinent to state in here that complainant in his entire complaint has no where stated name of Sarika Arya, nor it is stated anywhere that accused Sarika Arya ever visited house of the complainant or she got any document signed from the complainant or received any money from the complainant.
45. As such, it was incumbent upon prosecution to lead cogent evidence to show that accused Sarika Arya was involved in FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 39 of 44 conspiracy with Rajeev Arya in order to cheat complainant, beside the fact that she is wife of Rajeev Arya and was working as RD account agent in Post Office.
46. It is pertinent to state in here that name of document i.e. SB account opening form does not bear signature of accused Sarika Arya or was proved to be in hand-writing of accused Sarika Arya. No cash or any amount is stated to have been recovered from possession of accused Sarika Arya. Further nothing is alleged regarding the said RD account got opened through accused Sarika Arya.
47. As such, there is no cogent evidence on record which can show that accused Sarika Arya was part of conspiracy with accused Rajeev Arya. Furthermore, since complainant never alleged that he was induced by accused Sarika Arya in any manner, offence of cheating cannot be said to have made out. In view of the same, prosecution has failed to prove that there was any meeting of mind between accused Rajeev Arya and Sarika Arya to cheat the complainant. In view of the same, accused Sarika Arya stands acquitted for the offencess she is charged for.
Accused R. S. Bawa & Vijay Kumar
48. Prosecution has further filed charge sheet against 3 post office officials namely R.S. Bawa, D.K. Popli and Vijay Kumar. Since, as stated above that accused D.K. Popli has expired during the trial on 18.10.2021 and proceedings qua him are already abated, thus FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 40 of 44 court shall proceed with the discussion regard to accused R.S Bawa and Vijay Kumar.
49. It is alleged against accused RS Bawa that, while opening the forged SB account no. 612094 in the name of the complainant, same was signed by APM RS Bawa and while opening the said account, neither any photograph was taken nor the address or signature were verified. Further, no introducer was taken at the time of opening of the saving account.
Further, with regards to accused Vijay Kumar, it is stated that clerk Vijay Kumar who is known to Rajeev Arya, got open the saving account of Vimal Malhotra and Anu Malhotra by using forge signature and further withdraw an amount of Rs. 3,98,400/- from the said account by forging the signature of the complainant. It is further stated that Vijay Kumar does not verify the signature of the complainant and further hand over the said amount to the accused Rajeev Arya in cash instead of cheque as per the settled rule. Further, the said withdrawal slip bears the initials of Vijay Kumar.
50. As discussed above, accused R.S. Bawa and Vijay Kumar were charged for the offence punishable u/s 409/120-B IPC, since accused persons being officials of post office and having dominion over the bank accounts of the complainant open forged saving account in the name of complainant Vimal Malhotra and his wife Anu Malhotra and allowed pre mature close of MIS account of complainant and Anu Malhotra and further permitted transfer the amount of 3,98,400/- from the account of complainant and his wife, FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 41 of 44 and allow the accused Rajeev Arya to withdraw the said amount.
51. Prosecution in order to prove the same has examined one Sh. Dinesh Chand Sharma as PW4 who was posted as Assistant Superintendent, Post Office, Delhi, first Sub-Division, Delhi, East Division, with Headquarter at Patparganj, in the year 2004.
Prosecution has further examined one Sh. Suresh Dutt Tyugi PW5 (Senior Post Master at Krishna Nagar Head office as on 01.07.2004), Sh. Roop Chand PW5 (deputy Post Master in Treasury Branch, Krishna Nagar Post Office, Delhi, from 2003 to 2008) and Sh. J. K. M. Tripathi, PW7 (PRO, Krishna Nagar Post Office).
52. It is pertinent to state in here that, apart from witness Dinesh Chand Sharma, all the other witnesses did not supported the case of prosecution and further denied giving any statement u/s 161 Cr.P.C to the IO. From the testimonies of PW-5 to PW-7, nothing incriminating has been brought forth qua accused R.S. Bawa and Vijay Kumar (or D.K. Popli, since expired).
53. With regards to evidence of Sh. Dinesh Chand Sharma, who deposed as PW-4, it is pertinent to state in here that the report so filed by PW4 D. C. Sharma, against the accused in his preliminary inquiry was set aside in appeal by Sh. J. P. Rajor at the time of final inquiry and it was held that allegations against the accused R.S. Bawa are not proved. Furthermore, Sh J.P. Rajor stepped into witness box as DW-1 and proved his file report as Ex.DW1/B with regard to R. S. Bawa. Further during the course of cross examination, it is sated by FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 42 of 44 the witness that as per the rule no. 23 an account in post office can be opened through messenger. Relevant portion of the cross examination is being reproduced as under:
"...Q. It is put to you that abovesaid Rule no.23 provided that if a person wants to open any account in post office there is no need to remain present there in person and he can open the account through Messenger ?
A. Yes."
54. As discussed above, it is for the prosecution to prove beyond reasonable doubts that accused R.S. Bawa and Vijay Kumar were in conspiracy with accused Rajeev Arya and further committed criminal breach of trust. Since, none of the witness so produced by the prosecution deposed against the accused R.S. Bawa and Vijay Kumar and nothing substantial is placed on record by the prosecution to prove that there is meeting of mind of the accused persons, accused R.S. Bawa and Vijay Kumar cannot be convicted merely on the basis of conjuncture and surmises or for the reasons that accused persons might have made some lapses in performing their official duty.
55. In view of the discussion made above, accused R.S. Bawa and Vijay Kumar stands acquitted for the offences they are charged for.
56. Furthermore, since there is nothing brought on record that accused Sarika Arya, Vijay Kumar, R.S. Bawa entered into conspiracy with accused Rajeev Arya in order to cheat the complainant, accused Rajeev Arya Stands acquitted for the offence u/s 120 B IPC.
FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 43 of 44 In view of the discussion made above accused Sarika Arya, Vijay Kumar and R. S. Bawa stands acquitted for the offences they are charged for.
Further, accused Rajeev Arya stands acquitted for the offence u/s 120 B IPC and stands convicted for the offence punishable u/s 418/467/409 IPC.
Announced in the Open Court (ANUBHAV JAIN)
on dated 14th October, 2023 ACMM/SHD/KKD
DELHI/14.10.2023
Present judgment consisted of 44-pages and each page bears my signatures.
(ANUBHAV JAIN) ACMM/SHD/KKD DELHI/14.10.2023 FIR no. 376/2004 PS Anand Vihar State vs. Rajeev Arya & ors. Page no. 44 of 44