Delhi District Court
State vs . Rohtash Kanwar & Hari Narayan on 8 July, 2023
1
IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District
Patiala House Courts : New Delhi.
State Vs. Rohtash Kanwar & Hari Narayan
FIR No.532/1991
P.S. : Connaught Place
Under Section :380, 420, 468, 471, 34 of IPC
ID number of the case : 58785/2016 DLND020166812016
Date of commission of : 08.07.1991
offence
Date of institution of the : 19.11.1997
case
Name of the complainant : Mohd. Afzal Khan, O/o Faisal Travels, B7,
Vandana Building, 11 Tolstoy Marg,
Connaught Place, New Delhi.
Name of accused and : (1) Hari Narayan, S/o Shri Hari Dutt, R/o
address Village & Post Office Kanheti, P.S. Baldi
Rai, District Sultan Pur, UttarPradesh.
(Already Discharged)
(2) Rohtash Kanwar, S/o Shri Chander Bhan,
R/o RZ68, Indira Park, Uttam Nagar, New
Delhi110059.
(Acquitted in all offences and convicted for
the offence punishable under Section 468 of
IPC only).
Offence complained of or : Under Sections : 380, 420, 468, 471 & 34 of
proved the Indian Penal Code, 1860.
FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 1/33
2
Plea of the accused : Pleaded not guilty
Final order : Acquitted in all offences.
Convicted for the offence punishable under
Section 468 of IPC Only
Date of judgment : 08.07.2023.
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.It has been rightly said that the wheels of justice grind slow, but grind fine. The present case was instituted in 1991. During the course of investigation, coaccused Radhey Shyam was declared as an absconder on 01.02.1992. Upon filing of charge sheet, the present accused, namely, Rohtash Kanwar was also declared as an absconder on 20.07.2001. The accused was apprehended in 2016 and thereafter, the trial of this case came back on track.
2. By this judgment, I shall decide the case of the prosecution filed against accused Rohtash Kanwar.
3. As per the prosecution version, on 08.07.1991 accused Radhey Shyam while working in the travelling agency/office of complainant Mohd. Afjal Khan faisal, prepared duplicate key of the drawer of the complainant and stole two cheques bearing Nos.663962 & 663957 of Punjab & Sindh Bank, Janpath, New Delhi. Subsequently, in furtherance of their dishonest intention to cheat complainant, accused FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 2/33 3 Radhey Shyam @ Hari Narayan along with his associate, namely, Rohtash Kanwar (present accused) forged the said cheques and fraudulently and dishonestly used the same as genuine, knowing or having reason to believe the same to be forged cheques, got encashed an amount of Rs.65,000/ from the account of complainant by presenting the cheque bearing No. 663962 at Punjab & Sindh Bank, 48, Janpath, Connaught Place, New Delhi.
4. Thereafter, on 10.07.1991 at about 4:00 p.m. complainant received a call from the bank inquiring about his inability to withdraw the amount of Rs.24,000/ despite issuance of token for cash withdrawal. Upon inquiry, complainant came to know that someone had presented the cheque of Rs.24,000/ for encashment and after taking the token had fled away from the Bank. Complainant also came to know that on 08.07.1991, an amount of Rs.65,000/ was also withdrawn from his account through cheque bearing his signatures. Since, accused Hari Narayan did not come to the office of complainant, it raised a suspicion and thereafter, complainant lodged an FIR alleging therein that the accused persons, namely, Radhey Shyam @ Hari Narayan and Rohtash Kanwar have committed an offence punishable under Section 380, 420, 468, 471 read with Section 34 of the Indian Penal Code, 1860.
5. Upon conclusion of investigation, charge sheet was filed by the I.O. on 19.11.1997 against Rohtash Kanwar. It may be noted that in the main charge sheet, accused Radhey Shyam and Hari Narayan were FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 3/33 4 placed in the list of not charge sheeted persons. (For the sake of clarity, it may be noted that the complainant/PW4 Mohd. Afzal Khan deposed during his examination dated 30.07.2022 that Radhey Shyam was the employee who had conspired with Rohtash Kanwar and there was no person by the name of Hari Narayan. For the continuity of reading and documentary evidence on record, accused Radhey Shyam is referred in this judgment as Radhey Shyam @ Hari Narayan).
6. After registration of case, accused Rohtash Kanwar absconded and was declared proclaimed offender vide order dated 20.07.2001. Though, accused Hari Narayan was declared proclaimed offender vide order dated 01.02.1992 (without arrest).
7. Subsequently, on 01.06.2016 accused Rohtash Kanwar was arrested by the officials of Crime Branch, Chanakya Puri and remanded to judicial custody by the concerned Court. Thereafter, he was enlarged on bail. Subsequently, supplementary charge sheet was filed against accused Hari Narayan. After hearing arguments on the point of charge, Court came to the conclusion that evidence on record is sufficient qua accused Rohtash Kanwar only. Accordingly, accused Hari Narayan was discharged vide order dated 19.05.2018.
8. Subsequently, charges under Section 174A IPC & Sections 380, 420, 468, 471 read with Section 34 of IPC were framed against accused Rohtash Kanwar to which he pleaded not guilty and claimed FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 4/33 5 trial.
9. During the period in which the accused was absconding, prosecution evidence was recorded in absence of the accused under Section 299 Cr.PC. In the evidence under Section 299 Cr.PC, Head Constable Devender Singh, complainant, Shri V.K. Khanna, Principal Scientific Officer, CFSL and Inspector Satya Prakash were examined.
10. Upon apprehension of the accused, certain witnesses were recalled and prosecution evidence was conducted. To prove its case, the prosecution has examined five witnesses. Since, PW SubInspector Ajeet Singh had expired, his name was dropped from the list of witnesses vide order dated 05.08.2022. Vide same order, PW Satya Prakash was also dropped from further examination as his whereabouts were unknown. Vide order dated 09.02.2023, PW Kultar (since expired on 27.03.2021) and S.I. Kedar Yadav (witness in supplementary charge sheet against accused Hari Narayan only) were also dropped.
11. During evidence under Section 299 Cr.PC, four witnesses were examined and upon apprehension of the accused, three of them, namely, complainant, H.C. Devender Singh and Shri V.K. Khanna were recalled for crossexamination. The other witnesse, Inspector Satya Prakash could not be recalled. H.C. Devender Singh had deposed that on 16.07.1991, he was posted at P.S. Connaught Place and was a part of the team which had arrested Rohtash Kanwar. He further deposed that FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 5/33 6 personal search memo prepared at that time bears his signatures. He further deposed that during search conducted at the residence of the accused at his instance, an amount of Rs.25,000/ was recovered.
12. During his testimony recorded on 07.04.2007, Inspector Satya Prakash deposed that on 13.07.1991, the investigation of this case was handed over to him. He further deposed that a copy of the FIR and original rukka was given to him by the duty officer. He further deposed that during investigation, the complainant raised suspicion on Rohtash Kanwar, Hari Narayan and Radhey Shyam. He further deposed that on 16.07.1991, he had arrested accused Rohtash Kanwar and prepared the personal search memo (old Ex. PW1/A). He further deposed that on pointing out by the accused, Rs.25,000/ (100x200, 50x100) were recovered from a room and the said currency notes were kept by accused Rohtash Kanwar in a T.V. Box and the same were taken into possession vide memo (old Ex. PW1/D). The pointing out memo of accused was prepared by him which is (old Ex. PW1/C). He further deposed that he took the original cheque in question into possession vide seizure memo Ex. PW4/A. He further deposed that he took the specimen handwriting of accused Rohtash as well as of complainant and had sent the cheque in question along with specimen handwriting to FSL for comparison and had also obtained the report from FSL. He further deposed that he had recorded the statements of the witnesses, completed the investigation and filed the challan in the Court.
FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 6/33 713. Thereafter, Assistant SubInspector Dinesh Kumar, No. 449/Crime, Posted at IGIS, Crime Branch, Dwarka, New Delhi was examined as PW1 on 29.09.2018. He deposed on oath that on 21.05.2016, he was posted at ISC, Crime Branch, Chanakya Puri, New Delhi. On that day, secret informer came in the office and informed regarding accused Rohtash, who was proclaimed offender in case FIR No. 532/1991, P.S. Connaught Place, New Delhi. He had informed that accused Rohtash was coming to meet his friend at Rajiv Chowk Metro Station at about 5:30 p.m. Thereafter, he shared this information with SubInspector Sandeep who subsequently gave this information to his senior officer Inspector P.C. Yadav. Thereafter, as per direction of Inspector P.C. Yadav, SubInspector Sandeep constituted a raiding team including himself, SubInspector Manoj, Head Constable Kanwar Pal, Head Constable Sant Raj, Head Constable Kartar, Constable Sandeep, Constable Deepak, Constable Rajesh & Constable Om Prakash. Thereafter, they took private Swift Dzire and Santro Car and reached at the spot between 5:15 p.m. to 5:20 p.m. When they reached at the spot, SubInspector Sandeep requested some public persons to join the investigation but they refused to join the same citing some personal reasons. Thereafter, SubInspector Sandeep instructed all members of raiding party to take their position. He along with SubInspector Sandeep and secret informer stayed at the spot and at about 5:30 p.m. one person came from Rajiv Chowk Metro Station Gate No. 3. Secret Informer indicated towards the said person stating that he is the absconder in the present case. The said person/absconder came near a tree and stood FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 7/33 8 there. After sometime another person also came at the same place. Secret Informer informed that another who came later is friend of accused and also a proclaimed offender in the present case. Upon indication of secret informer, SubInspector Sandeep indicated all the raiding team and he along with Constable Rajesh and other police staff apprehended both the accused persons. During inquiry, they came to know names of accused persons as Rohtash Kumar and Hari Narayan. On inquiry from Police Station Connaught Place, New Delhi they came to know that both accused persons were proclaimed offender in case FIR No. 532/1991. Thereafter, he arrested both the accused persons vide arrest memos Ex. PW1/A and Ex. PW1/B, both bearing his signatures at point A respectively. Subsequently, he conducted personal search of both the accused persons vide personal search memos Ex. PW1/C and Ex. PW 1/D, both bearing his signatures at point A respectively. Thereafter, he recorded disclosure statements of both the accused persons vide memos Ex. PW1/E and Ex. PW1/F, both bearing his signatures at point A respectively. Thereafter, on 01.06.2016, he prepared the kalandra under Section 41.1 (c) of Cr.PC against both the accused persons and filed the same in the concerned Court.
14. Despite opportunity, PW1 Assistant SubInspector Dinesh Kumar was not crossexamined by Ld. Counsel for accused.
15. Head Constable Devender Singh (now Assistant Sub Inspector), No. 3032D/Traffic, Posted at Kamla Market Circle, Delhi FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 8/33 9 was examined as PW2. He deposed on oath that on 16.07.1991, he was posted as Constable at Police Station Connaught Place. On that day, accused Rohtash was arrested and personally searched by the I.O. vide memos already Ex. PW1/A and Ex. PW1/B, both bearing his signatures at point A respectively. Thereafter, disclosure statement of accused Rohtash was recorded by the I.O. Accused Rohtash narrated his residential address as T513F15H3, West Baljeet Nagar, from where Rs.25,000/ (Two bundles of Rs.100/ and one bundle of Rs.50/) were got recovered by the accused from one TV Box. Meanwhile, pointing out memo, already Ex. PW1/C, bearing his signature at point A, was prepared by the I.O. After that I.O. also prepared seizure memo, already Ex. PW1/D, bearing his signature at point A and seized the aforesaid amount. Thereafter, his statement was recorded by the I.O. PW2 correctly identified accused Rohtash in the Court. He also identified currency notes worth Rs.25,000/, already Ex. P2, P3 and P4 respectively.
16. During his crossexamination PW2 SubInspector Devender Singh deposed that he had not made departure entry, however, the same might have been made by the I.O. He further deposed that they visited residence of accused in a TSR, however, he did not remember its registration number. He further deposed that in his presence statement of TSR Driver was not recorded by the I.O. However, I.O. has recorded his statement on the same day. He did not recollect whether I.O. had recorded this fact that they had visited the house of accused in a TSR. He FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 9/33 10 also could not recollect as to how many persons were present in the house of accused. He did not know accused Radhey Shyam and where he stayed. He further deposed that interrogation of accused was done in his presence. He further deposed that the locality was densely populated and I.O. had requested public persons to join the investigation but they refused to join the same. He was not aware whether I.O. had recorded description of public persons. He also did not recollect if I.O. had called any respectable member of the locality to join the investigation. He also did not recollect as to how many floors were there in the house of accused. He even did not remember the time when they left the Police Station, however, it was in afternoon. He could not say whether I.O. had prepared the inventory of currency notes. He also did not know whether the I.O. had verified from the Bank if the currency notes were the same which were issued to the bearer of the cheque. He was not aware if I.O. had recorded statement of any Bank official. He also did not remember the time taken by them at the house of the accused. He further deposed that they returned to Police Station in some other TSR, however, he did not remember registration number of the same. He further deposed that neither I.O. prepared the site plan nor took photographs of the currency notes in his presence. PW2 did not remember make of the TV in the house of accused. He did not recollect the route taken by them to reach the house of accused. He further deposed that houses were situated on both sides of the road. He did not know whether there was any Chaupal or Community Center in the vicinity. PW2 denied the suggestion that he did not join the investigation in the present case or that he did not visit FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 10/33 11 address of the accused and arrested the accused or that accused had been falsely implicated in the present case or that the case property was planted upon him or that all the documents were prepared in the Police Station or that he has deposed falsely.
17. Assistant SubInspector Anil Kumar, No. 317/PCR, Posted at Model Town Line, New Delhi was examined as PW3. He deposed on oath that on 31.05.2016, he was posted as Head Constable at Police Station Connaught Place, New Delhi. On that day, he was working as duty officer from 04:00 p.m. to 12:00 midnight. He further deposed that on that day, Head Constable Dinesh Kumar gave him telephonic information regarding arrest of accused Rohtash and Hari Narayan under Section 41.1 (c) Cr.PC vide D.D. No. 21 dated 31.05.2016, Crime Branch, Chanakya Puri. The said information was reduced into writing vide D.D. No.48A dated 31.05.2016, P.S. Connaught Place, which is Ex. PW3/A (OSR).
18. Despite opportunity, PW3 Assistant SubInspector Anil Kumar was not crossexamined by Ld. Counsel for accused persons.
19. Mohd. Afzal Khan, S/o Late Hamidullah Khan, R/o C43, 3rd Floor, Jangpura Extension, New Delhi110014 was examined as PW
4. He deposed on oath that he had been running a travelling agency at B 7, Vandana Building, 11, Tolstoy Marg, Connaught Place, New Delhi since 1984. He further deposed that on 08.07.1991 Hari Narayan was FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 11/33 12 working in his office as Peon who had prepared duplicate key of his drawer and stolen two cheque leaves from the drawer of agency. He further deposed that at present he did not remember the cheque number of both the cheques but it was of Punjab & Sindh Bank. PW4 further deposed that on 10.07.1991 at around 4:00 p.m., he received a call from Punjab & Sindh Bank, Janpath Branch, New Delhi and bank official asked him why he has not withdrawn Rs.24,000/ despite taking the token. Thereafter, he got surprised and immediately rushed to the bank where he was informed that someone had withdrawn Rs.65,000/ from his account by presenting stolen cheque. The bank official further informed him that someone had presented the cheque of Rs.24,000/ and after taking the token he had fled away from the Bank. Thereafter, PW4 Mohd. Afzal Khan informed the bank officials that he had not presented the cheque in the Bank on 08.07.1991 and 10.07.1991 and had also not withdrawn Rs.65,000/ or Rs.24,000/ respectively. He further deposed that the bank officials had shown his signatures on the alleged cheques and after seeing signatures he had denied the same. He further deposed that after 10.07.1991, accused Hari Narayan had not come to his travel agency, therefore, upon suspicion, he had lodged FIR against Hari Narayan, Rohtash and one RB. His complaint is Ex. PW2/A, bearing his signatures at point A. He further deposed that at present he did not remember the exact date but Rs.25,000/ in the denomination of Rs.100/ were recovered from the house of accused Rohtash. Police had also prepared personal search memo of accused Rohtash Kanwar, already Ex. PW1/A, bearing his signature at point B, his disclosure statement, FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 12/33 13 already Ex. PW1/B, bearing his signature at point B. The seizure memo of recovered currency notes in the denomination of Rs.100/ total amounting to Rs.25,000/ is already Ex. PW1/D, bearing his signature at point B. He further deposed that he did not remember the exact date but police had taken his specimen signatures on some pages.
20. MHC (M), Police Station Connaught Place, New Delhi also produced register No. 19 wherein at serial No.1383, description of deposit of alleged case property was mentioned, photocopy of which is Ex. P1. MHC (M) also produced currency notes in the denomination of Rs.50/ & Rs.100/ in two unsealed bundles, total amounting to Rs.25,000/. PW4 correctly identified the currency notes and bundles of currency notes were exhibited as Ex. P2, Ex. P3 and Ex. P4 respectively. PW4 also correctly identified accused Rohtash Kanwar in the Court.
21. During his crossexamination PW4 Mohd. Afzal Khan deposed that he had not given any document to police officials about his travel agency but could produce the same. He further deposed that he had not given list of employees to Police who had been working in his travel agency at that time. He further deposed that he had informed to the police that one person by the name of Hari Narayan was working in his office. By showing Ex. PW2/A, PW4 was asked to point out as to where this fact is mentioned in the document. After carefully going through Ex. PW2/A, PW4 deposed that it was not Hari Narayan but it FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 13/33 14 was Radhey Shyam. He further deposed that address of Radhey Shyam was available with him and he had given the same to Police. He volunteered that Police had caught Radhey Shyam and he had taken them to the house of accused. He again deposed that Radhey Shyam could not be arrested. He affirmed that the averments made by him qua accused Hari Narayan were wrong. He further deposed that Police did not recover the alleged duplicate keys. He further deposed that he had not seen the duplicate keys nor could he produce the said duplicate keys. He also could not produce register of his employees for the year 1984. He affirmed that he had come to know from the bank officials about cheques. The cheques were taken to the Bank by accused Rohtash. He again deposed that he had not seen accused Rohtash taking cheques to the bank. He could not say as to who had called him from the Bank. He did not know serial numbers of the cheques. He further deposed that he had not taken any legal action against accused Radhey Shyam nor did he initiated any recovery proceedings or departmental inquiry against accused Radhey Shyam. He further deposed that he had seen accused Radhey Shyam for the last time on 10.07.1991. Again said on 12.07.1991. He further deposed that on 12.07.1991 some friend of Radhey Shyam had taken them to his house/Jhuggi situated at Rajender Nagar but he did not remember its address. He further deposed that accused Rohtash was also residing in a Jhuggi at Rajender Nagar which was only single floor. He further deposed that police did not join any public person in the investigation. No one was present in Jhuggi nor any respectable person was called by the I.O. from the locality to join the FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 14/33 15 investigation. He could not say on which date they had gone to the Jhuggis. He further deposed that they had gone there in their private vehicles belonging to his brotherinlaw but his statement was not taken by the police. Thereafter, on 13.07.1991, he lodged the complaint. He further deposed that there is no person by the name of Hari Narayan, rather it was Radhey Shyam. He further deposed that Hari Narayan has no relationship with this case and he had named him out of confusion. He further deposed that Ex. PW2/A was written by him in his office. He further deposed that he had not stated to the Police that Radhey Shyam was the tenant of Rohtash. PW4 confronted with Ex. PW2/A from point A to A1, where it was so recorded.
22. PW4 further deposed that he had received a call from the Bank officials on 10.07.1991 and on the same day he had visited the Bank and met the Bank officials. He did not remember which Bank official had met him. He could not say which cheque was shown to him. He further deposed that he had not taken any legal action against the Bank till date. He further deposed that he has not seen any person by the name of RB. He volunteered that accused persons had told him about RB. He further deposed that complaint was written by him through one Advocate whose name he did not remember. He denied the suggestion that the complaint was written by him at the instance of police officials. He further denied the suggestion that accused Rohtash has no relationship with the offence. He further denied the suggestion that entire paper work was done in Police Station and that he had lodged a false FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 15/33 16 complaint in connivance with the local Police. He did not recollect whether he had given any bank statement to the Police. He denied the suggestion that he was called to the Bank or that they had informed him about the cheques. He further denied the suggestion that there was any person by the name of Radhey Shyam in his office. He further deposed that Police had taken him to the house of accused at Rajender Nagar and from there the recovery in the matter was made. He further denied the suggestion that recovery has been planted upon accused. He further denied the suggestion that his signatures were taken by the Police on blank papers and same had been manipulated by the Police. He further denied the suggestion that he has deposed falsely or that he is an interested witness.
23. Shri V.K. Khanna, S/o Late R.D. Khanna, R/o 270B, PocketII, Mayur Vihar, PhaseI, Delhi110091 appeared as PW5. He deposed on oath that he was working as Principal Scientific Officer and Head at Document Division, CFSL, CBI since 1996 till 2007. He further deposed that he was working as Senior Scientific Officer, GradeII i.e. as an expert since November, 1973 in CFSL, CBI, New Delhi. He further deposed that up till now he has given reports in about 2300 cases involving more than one lacs of exhibits in various kind from various agencies such as Delhi Police, CBI etc. and had appeared as an expert in about 1400 Courts throughout India. He further deposed that in this case, certain documents were submitted for examination as well as report by the SHO, P.S. Connaught Place, New Delhi vide memo FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 16/33 17 No.2291/SHO/CP dated 23.03.1992 and further material vide memo No. 876/SHO/CP dated 29.08.1992. He further deposed that he has examined documents of this case carefully with scientific aids and the following opinion had been arrived at:
(1) Opinion No. 1 : The question English writings and signatures are mark Q1 to Q5, which is already Ex.PW3/A and now Ex.PW5/A, on front and back could not be connected with the specimen English writings and signatures marked as S4 to S6. Due to the reasons given in detail in my report which is already Ex.PW3/B and now Ex.PW5/B, which consists of three pages and bear my signatures on every page at point AA.
Opinion No. 2: Handwriting evidence points to the writer of the specimen English writings marked S1, S2, S7 & S8 being the person responsible for writing the questioned English writings Mark Q1 and Q2, both on document Ex. PW5/A due the reason given in my detailed report Ex. PW5/B.
24. During his crossexamination PW5 deposed that the questioned signatures Marked Q3, Q4 & Q5 on the cheque Ex. PW 5/A were not written by the Complainant Afzal Khan. However, as the above questioned signatures are the forged signatures in which the alleged accused has tried to copy the model of the standard signatures and so there is no question of coming his own handwriting habits. So, no opinion was given as sufficient characteristics were not found having similarity with the accused's general handwriting. Therefore, no specific FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 17/33 18 opinion was given to connect the accused's general handwriting with the handwriting Marked Q3, Q4 & Q5.
25. PW5 during his crossexamination affirmed that three signatures on the back side of Ex. PW5/A were not marked for verification to department by the investigating agency. He further affirmed that that he had given a wrong opinion at the instance of the investigating officer. He further deposed that it is a standard practice that only sealed samples/documents are received in CFSL, CBI for examination by the staff. He further affirmed that he had not mentioned about the seal in his report dated 30.09.1992 Ex.PW5/B. He volunteered that it was not mentioned as he did not not receive the Dak and it was being received by the staff. He further affirmed that he had not annexed the working notes with his report. He volunteered that the detailed opinion was given on the basis of working notes and in general practice they do not annex the working notes with such report. He further affirmed that he had not mentioned the specific tools used for comparing the handwriting in the present case. However, he had written that he had concluded to this opinion through scientific aids, otherwise the report would be infinity. He further affirmed that he had not annexed the photographs of enlarging the handwriting during examination of the questioned documents.
26. A question was put to PW5 that there is nothing on record to substantiate his opinion to which he answered that he is an expert and FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 18/33 19 his report is based on his experience as well as the reasons given in the report. He denied the suggestion that he has prepared a false report at the instance of the police. He further denied the suggestion that he has deposed falsely.
27. After completion of evidence of all the PWs, P.E. was closed.
28. Statement of accused was recorded under Section 218 read with Section 313 of Cr.PC on 31.03.2023, wherein the accused stated that nothing was recovered from his possession or at his instance and the alleged recovery is manipulated as the currency notes do not pertain to the period in which the alleged incident had taken place. He further stated that the currency notes are of recent origin and could not have been in circulation at that point of time. He further stated that no notice or summons were ever served upon him and his non appearance was not deliberate. He further stated that he has been falsely implicated in this case and the real culprit Radhey Shyam was deliberately not arrested by the police.
29. Thereafter, the matter was fixed for final arguments.
30. Final arguments were advanced by Ld. APP on behalf of State as well as by Ld. Counsel for accused.
FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 19/33 2031. Ld. APP for the State submitted that the prosecution has proved its case beyond reasonable doubt and all the witnesses have invariably supported the case of the prosecution.
32. Per contra, it is submitted by Ld. Counsel for accused that the story of the prosecution, especially the testimony of the complainant, suffers from material inconsistencies and the case has not been proved beyond reasonable doubt. He further submitted that the prosecution has failed to prove any relation of the accused with the alleged act. He further submitted that the testimony of the complainant was not worthy of acceptance as he has failed to corroborate even material particulars of the case.
33. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. The case of the prosecution, in brief, is that the accused persons conspired and committed the theft of two cheques from drawer of the complainant in his office and presented one of the cheques bearing No. 663962 drawn on Punjab & Sindh Bank, for payment after forging his signatures on the cheque and after tempering with other material particulars on the cheque, thereby committed the offences of cheating by deceiving the bank and inducing delivery of Rs.65,000/, forgery for the purpose of said cheating and use of forged document as genuine.
FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 20/33 2134. The subsequent allegation pertains to the offence under Section 174A IPC owing to the declaration of the accused as proclaimed offender.
35. Before proceeding, I may reproduce Section 420 of the Indian Penal Code for ready reference, which reads thus:
420. Cheating and dishonestly inducing delivery of property.
-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
36. Section 420 IPC culminates two elements of cheating and delivery of property as a result of deception followed by inducement in a dishonest manner. Whereas, the latter element is fairly clear, the former derives its meaning from Section 415 IPC, which reads thus:
415. Cheating. Whoever, by deceiving any person, fraudu lently or dishonestly induces the person so deceived to de liver any property to any person, or to consent that any per son shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 21/33 2237. I may now briefly lay down the ingredients required for proving the offence under question. For bringing home the charge under Section 420 of IPC, it is essential that -
(a) The accused deceives any person by doing any act including a false representation;
(b) The deception results in dishonest or fraudulent inducement of any person to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security.
38. I may also note the ingredients required for proving the offence under Section 380 IPC which can be listed as follows:
(i) Moving a property with the intention of dishonestly taking it out of the possession of a person without his consent, which results into theft;
(ii) Theft must be committed in any building which is used as human dwelling or for the custody of property.
39. For proving the offence under Section 468 and 471 of IPC, the basic ingredient is of forgery as provided under Section 463 of IPC. It may be noted that forgery is making of any false document with the intent to cause damage or injury to any person or to support any claim or title or to cause any person to part with property etc. The essential FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 22/33 23 ingredient of forgery is making of a false document which is defined in Section 464 of IPC. In Mohd. Ibrahim Vs. State of Bihar, 2009 (8) SCC 751, Section 464 of IPC was explained by the Hon'ble Supreme Court and was divided into three categories. The relevant para may be reproduced as :
"14.An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or
(c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."
40. In addition to the above, Section 468 penalizes forgery with an intention to use the forged document for the purpose of cheating and Section 471 penalizes dishonest or fraudulent use of any forged document as genuine despite knowing or having reason to believe that it was forged.
41. Coming to the evidence led on behalf of the prosecution, it FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 23/33 24 is the foremost requirement of criminal law that the prosecution must establish three essential attributes - actus reus, mens rea and causal link between the crime and accused on trial. The actus reus required in this case is of deception (for the offence under Section 420), moving of property in order to take it out of possession, (for the offence under Section 380), making of false document/cheque and forgery thereof for the purpose of cheating (for the offence under Section 468), use of the said forged document as genuine (for the offence under Section 471). So far as the mens rea is concerned, all the offences in question primarily require a dishonest or fraudulent intention.
42. Three witnesses of the prosecution are police witnesses, one is the complainant and the remaining witness is an expert witness for proving the CFSL report. The police witnesses have primarily deposed regarding the registration of FIR, arrest of the accused, preparation of personal search memo, recording of disclosure statement etc. Inspector Satya Prakash/I.O. has categorically deposed that the original cheque in question was seized by him vide seizure memo Ex. PW4/A from the concerned Bank and the seizure was witnessed by Shri Kultar Singh, Manager, Punjab & Sindh Bank. He further deposed that the said cheque was sent for examination by CFSL after marking the questioned handwriting/signatures on the cheque and after obtaining specimen handwriting/signatures from the accused as well as the complainant. At the outset, I may note that the I.O. could not be recalled after apprehension of the accused. However, the same may not come in the FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 24/33 25 way of accepting his testimony recorded under Section 299 Cr.PC. The provision under Section 299 Cr.PC is an exception to the general rule under Section 273 Cr.PC that evidence has to be recorded in the presence of the accused. The exception is meant to take care of situations wherein, the accused is absconding. The legislative intent behind the provision is to ensure that trial and judicial process must not suffer due to the sole reason of absence of the accused. It is meant to ensure that the prosecution witnesses arr examined in a timely manner and non appearance of the accused may not cause a situation wherein the Court is unable to secure appearance of the the witnesses due to old age, death or un traceability. In this case, Inspector Satya Prakash/I.O. could not be recalled as he was untraceable. Understandably, he was recalled after a period of almost 15 years as the accused was absconding in the interim period. No doubt, the exception under Section 299 Cr.PC must be treated as an exception in a strict sense and must be resorted to only upon due satisfaction of the Court that the accused is absconding. The law in this regard is fairly settled by the Hon'ble Supreme Court in Jayendra Vishnu Thakur Vs. State of Maharashtra, 2009 (7) SCC 104. Notably, upon due satisfaction, the Court vide order dated 20.07.2001, had recorded that the accused was absconding and only upon judicial satisfaction in that regard, the matter was fixed for recording of evidence under Section 299 Cr.PC. I may also note that the testimony of I.O./Inspector Satya Prakash was deferred on 07.04.2007. However, the adjournment was only for want of case property and the testimony was otherwise complete in all respects along with exhibition of all the FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 25/33 26 relevant documents. Even otherwise, since the accused was absent on the said date, and no crossexamination was to be conducted, I am of the opinion that the testimony is admissible in law and can certainly be relied upon. The inability to recall the said witness at a later stage, shall not come in the way of accepting his testimony as his whereabouts could not be traced later. In such circumstances, the fault on the part of the accused do not appear at the time of evidence, cannot be construed to be beneficial for the accused. The testimony, as per Section 299 Cr.PC could be proved and accepted.
43. On an analysis of the prosecution evidence, I am of the view that certain material aspects could not be proved by the prosecution so far as the offences under Section 380 & 420 are concerned. For instance, the prosecution has failed to prove that the cheques in question were actually taken out of the drawer by accused Rohtash Kanwar. The keys of the drawer have not been recovered and there is no witness on record to testify that the accused was seen taking the cheques out of the drawer. The act of moving a property in order to take it out of possession of a person is an essential ingredient. Thus, the prosecution has failed to prove the actus reus required for offence under Section 380 IPC. As regards Section 420 IPC, it is essential to prove that deception was practiced by the accused and that the said deception resulted in inducement. It is equally essential to prove that as a result of the said inducement, property was delivered to the accused by the person who was so induced. In this case, bank witness Shri Kultar Singh could not be FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 26/33 27 examined as he had expired. There is no other witness on record to testify regarding the presence of the accused in the bank or to testify that the cheque in question was presented for encashment at the bank by the accused. In absence of this fact, it cannot be concluded that the accused had deceived the bank by presenting the cheque in question. Having said that, I may note that the entire case of the prosecution regarding Section 420 of IPC is based on deception by presenting the cheque to the bank for the purpose of encshment. It may also be noted that the prosecution has also failed to prove that it was the accused who had received Rs.65,000/ from the bank. In such circumstances, the charge under Section 420 of IPC cannot be sustained.
44. I may now come to the offences under Sections 468 & 471 of IPC. As already discussed above, the said offences mandatorily require forgery by making of false documents for the purpose of cheating and usage thereof as genuine. The false document in this case is the cheque in question. As per the allegation, forgery pertains to the amount mentioned in the cheque in words (Q1), amount mentioned in the cheque in numerical (Q2), signatures of the complainant on the cheque (Q3 & Q4), signature of the complainant at the back of the cheque (Q
5). As per the ingredients, a false document can be made by alteration or tampering of a document. The alterations/tampering relating to the amount mentioned in the cheque (both in words and numerical) and signatures on the cheque squarely fall within the definition under Section 464 of IPC. So far as the actus reus is concerned, it is clear that material FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 27/33 28 particulars in the cheque were altered for the purpose of encashment of the amount in question. What remains to be seen is whether there is a link of causation between the accused and the alleged tampering. The cheque in question was seized vide seizure memo Ex. PW4/A by I.O./Inspector Satya Prakash and was sent to FSL by him. Even if the Bank Manager could not be examined, it is duly proved that the cheque was seized from the bank and was sent to FSL. So far as the connection of the accused with the cheque is concerned, PW5 Shri V.K. Khanna is a material witness on this point. He has proved his report/expert opinion Ex. PW5/B dated 30.09.1992. The first opinion in the said report is with respect to the matching of signatures of complainant (S4 to S6) with the questioned writings/signatures (Q1 to Q5). As per the report, they were not found to be matching. Thus, it is clear that the writings/signatures on the cheque did not belong to the complainant. The second opinion pertains to the examination of whether specimen writings belonging to the accused (S1, S2, S7 & S8) matched with the questioned writings (Q1 & Q2). As per this opinion, no fundamental difference was found in the questioned writings and specimen writings of the accused. Thus, the writing of the accused was found to be matching with the questioned writing on the cheque i.e. amount in words and amount in numerical. It is thus, clear that the amount was filled by accused Rohtash Kanwar in his own handwriting. So far as the forged signatures of the complainant are concerned, the material on record is insufficient to form a view.
FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 28/33 2945. I may also note that the report of scientific examination by an expert is considered to be an opinion. The weight to be attached to such report has to be seen in the peculiar facts and circumstances of each case. During crossexamination of PW5, various questions were put to the witness regarding the absence of his working notes or the specific tools which were used by him for comparison in this case. PW5 specifically deposed that the detailed opinion was given by him on the basis of working notes and in general practice, the said notes are not annexed with the report which is submitted to the Court. He further deposed that he did not annex the photographs of enlargement of handwriting along with his report. In my view, the questions put to the witness during crossexamination, fail to put a dent on the credibility of the witness or on the admissibility of his report. The opinion given by PW5 is a detailed opinion, wherein individual alphabets have been carefully extracted and compared with the mode and manner in which the said alphabets were written by the accused. Upon consideration of the scientific report and the testimony of PW5, it can safely be concluded that the alleged writings on the cheque belonged to the accused. The said writings were in the form of alterations/tampering of a valuable document which was used for the purpose of deception and inducement of the bank. The amount in question was delivered on the strength of this forged document/cheque.
46. During the crossexamination of complainant/PW4, various FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 29/33 30 questions were put to him to impeach his credibility. The complainant was specifically questioned with respect to the correct identity of Hari Narayan or Radhey Shyam. In the original complaint, the complainant had mentioned the accused to be Radhey Shyam and later it was stated to be Hari Narayan. The original complaint Ex. PW2/A reveals that Radhey Shyam was Peon of the complainant and was stated to be the main culprit as he was missing from the date of incident. However, the original complaint also records the name of the present accused Rohtash as a suspect. The accused is stated to be an employee of some Post Office and landlord of Radhey Shyam. In such circumstances, it cannot be said that Rohtash Kanwar was made an accused as an after thought as he was in the list of suspects of the complainant right from the beginning. Furthermore, the main charge sheet was filed against him on the basis of the confirmation given by CFSL. Various questions were also put regarding the details of arrest of the accused, specifically regarding the journey which was undertaken by the police team for apprehending the accused.
47. I have carefully gone through the entire record including evidence, and I am of the opinion that the inconsistencies pointed out by the accused are, at best, minor inconsistencies and are not sufficient for demolishing the entire case of the prosecution with respect to the offences under Section 468 & 471 of IPC. The forgery was committed for the purpose of cheating. Further, the forged cheque was presented as FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 30/33 31 genuine despite knowledge that it was a forged document. So far as Section 468 is concerned, the prosecution has successfully proved that the accused has committed forgery in the form of alterations/tampering of amount (both in words and in numerical) in the cheque in question. It is also beyond doubt that the forgery was committed for the purpose of cheating as the cheque was actually presented to the bank and payment was received. Although, it is not clear as to who had approached the bank for the purpose of cheating and for taking delivery of money, it is fairly clear that forgery was committed by the accused. It may be noted that for proving the offence under Section 468 of IPC, what is essential is that the accused had committed forgery and that the said forgery was committed for the purpose of cheating. Whether or not actual cheating was committed by the accused is, immaterial. What is essential is that the purpose of forgery must be cheating. In view of the above discussion, the prosecution has proved that the accused had committed the offence punishable under Section 468 IPC, beyond reasonable doubt.
48. Although, the prosecution has proved that the cheque was presented as genuine at the bank, however, the prosecution has failed to prove that it was presented by the accused. Section 471 IPC uses the word 'whoever uses as genuine', which indicate that liability can be imputed only upon that person who uses the forged document as genuine. In this case, it has not been proved that the use was made by the accused. In such circumstances, charge under Section 471 IPC cannot be FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 31/33 32 sustained.
49. So far as the offence under Section 174A of IPC is concerned, I may note at the outset that the said offence was incorporated in IPC in 2005. Prior to that, non appearance in response to a proclamation was not a penal offence. The accused in this case was declared as an absconder on 20.07.2001 and at that point of time, non appearance was not punishable by a separate offence. Article 20 of the Constitution declares it to be a fundamental right that no person can be punished for the commission of an ex post facto offence. Thus, charge under Section 174A IPC cannot be sustained.
50. Ld. Counsel for the accused has raised certain contentions regarding the absence of public witnesses by conducting essential procedures during investigation. So far as the requirement of public witnesses is concerned, the legal position, as settled, is that as a matter of prudence, the investigating officers must look for independent witnesses to corroborate the factum of commission of offence. The absence of any independent witnesses may not per se vitiate the entire case of the prosecution if the same can be duly explained.
51. The underlying theme behind the law of evidence is the judicial satisfaction of the Court. There is no rigid rule of law that shuns the testimonies of police officials or even interested witnesses, however, FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 32/33 33 the evidence on record must inspire confidence of the Court and inconsistencies must be explained to the satisfaction of the Court. Wherever judicial conscience requires due corroboration of the evidence and it is not forthcoming, the burden of proof on the prosecution falls short of a complete discharge.
52. On a broad analysis of the case, I see a consistent story which has not been put to a doubt on the basis of legally admissible evidence, and which inspires the confidence of the Court. I may note that minor contradictions, inconsistencies, exaggerations or embellishments could not constitute a credible foundation for rejecting an otherwise coherent case set up by the prosecution. The law is fairly settled that the Court looks for quality of evidence and not the quantity thereof.
53. In view of the aforesaid discussion, I am of the considered view that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt under Section 468 IPC. The prosecution has failed to prove its case against the accused for the commission of offences under Section 174A, 380, 420, 471 read with Section 34 of IPC. Accordingly, accused Rohtash Kanwar stands convicted for the commission of offence under Section 468 of IPC. Though, he is acquitted on all other charges.
54. Let the accused be heard on the point of sentence.
YASHDEEP Digitally signed by
YASHDEEP CHAHAL
CHAHAL Date: 2023.07.08 04:07:47
+0530
Dictated directly into the computer (YASHDEEP CHAHAL)
and announced in the open Court, M.M.01 : New Delhi District
th
On 8 July, 2023. Patiala House Courts : New Delhi.
FIR No.532/1991 State Vs. Rohtash Kumar & Another Page No. 33/33