Delhi District Court
State vs 1) Suresh Sehgal on 11 October, 2010
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJII, NORTH, DELHI.
SESSIONS CASE NO: 34/2007
Computer I. D. No. 02401R0679512007
FIR No: 03/07
P.S. RMD
U/S:306/420/467/471/120BIPC
DATE OF INSTITUTION: 11.07.2007
DATE ON WHICH ARGUMENTS HEARD
AND JUDGMENT RESERVED : 06.10.2010
DATE ON WHICH JUDGMENT DELIVERED: 11. 10.2010
STATE Vs 1) Suresh Sehgal
S/o Late Sh. Roshan Lal
R/o C2, Golden Park, Shiv Puri,
Delhi (Convicted)
2) Shashi Bhushan
S/o Sh. Dharam Pal Sharma
R/o House no. 15/137, Geeta
Colony, Delhi 110031 (Acquitted)
3) Shiv Kumar Rohilla
S/o Sh. Mam Chand
R/o House no. 7, Vikas Puri,
Kabirpur, Sonipat, Haryana.
(Acquitted)
APPEARANCE:
Ms. Neelam Narang, Ld. Addl. Public Prosecutor for the
2
State
Mr. Rajesh Bhatia, Advocate for the convict Suresh Sehgal
13 .10. 2010
ORDER ON SENTENCE
1. Heard on the point of sentence and perused the record. It
has been urged by Mr. Rajesh Bhatia, Ld. Counsel for convict Suresh
Sehgal that his client is about 49 years of age and he is the sole
bread earner of his family having a wife and three children: one
daughter aged about 16 years and two sons aged about 19 and 8
years respectively. It is pointed out that convict has already remained
in Judicial Custody for a total period of 12 months and 15 days. It is
also urged that he has been regularly appearing in the trial and he
has not misused the liberty of the bail granted to him. It is also
submitted that the convict did not derive any pecuniary gain from the
sale of the said Santro Car in question which was taken on loan from
M/s ABN Amro Bank. It is also submitted that the convict has been
suffering with hyper tension and cervical and has been in regular
medical treatment from Govind Ballabh Pant Hospital, Delhi and lastly
it is submitted that he is not a previous convict nor any criminal case
is pending against the convict.
2. Per contra, Ms. Neelam Narang, Ld. Addl. Public Prosecutor
for the State has vehemently urged that the convict does not deserve any
leniency in as much as he has committed cheating or fraud upon his
close friend and was instrumental in bringing about his death. Ld.
Addl. Public Prosecutor for the State has also urged that heavy find
should be imposed upon the convict and out of the said fine
compensation be also awarded to the legal heirs particularly the wife
3
of the deceased.
3. In the case of B. G. Goswami v. Delhi Administration,
(1974) 3 SCC 85, AIR 1973 SC 1457, on the issue of sentencing
policy , the following observations were made by their Lordships:
"Now the question of sentence is always a difficult ques-
tion, requiring as it does, proper adjustment and balancing
of various considerations which weigh with a judicial mind
in determining its appropriate quantum in a given case.
The main purpose of the sentence broadly stated is that
the accused must realise that he has committed an act
which is not only harmful to the society of which he forms
an integral part but is also harmful to his own future, both
as an individual and as a member of the society. Punish-
ment is designed to protect society by deterring potential
offenders as also by preventing the guilty party from re-
peating the offence; it is also designed to reform the of-
fender and re-claim him as a law abiding citizen for the
good of the society as a whole. Reformatory, deterrent
and punitive aspects of punishment thus play their due
part in judicial thinking while determining this question. In
modern civilized societies, however, reformatory aspect is
being given somewhat greater importance. Too lenient as
well as too harsh sentences both lose their efficacious-
ness. One does not deter and the other may frustrate
thereby making the offender a hardened criminal".
4. In another case Shivu v. R. G. High Court of Karnataka,
AIR 2007 SC (Supp) 556 it was observed as under:-
The principle of proportion between crime and pun-
ishment is a principle of just desert that serves as
the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is
4
hardly less familiar or less important than the princi-
ple that only the guilty ought to be punished. In-
deed, the requirement that punishment not be dis-
proportionately great, which is a corollary of just
desert, is dictated by the same principles that does
not allow punishment of the innocent for any pun-
ishment in excess of what is deserved for the crimi-
nal conduct is punishment without guilt. Proportion
between crime and punishment is a goal respected
in principle, and in spite of errant notions, it remains
a strong influence in the determination of sen-
tences. Anything less than a penalty of greatest
severity for any serious crime is thought to be a
measure of toleration that is unwarranted and un-
wise. But in fact quite apart from those considera-
tions that make punishment unjustifiable when it is
out of proportion to the crime, uniformly dispropor-
tionate punishment has some very undesirable
practical consequences.
5. This Court in the judgement dated 11.10.2010 has
explained the manner in which the convict Suresh Sehgal committed
several acts of forgery in a very planned and calculated manner and
thereby committed cheating upon his close friend. The acts
committed by the convict disclosed his state of mind, shrewdness and
a complete defiance not only to the norms of law but also acceptable
behaviour in the society. It was the convict who brought the situation
to stage where the deceased had a sense of hopelessness about his
existence and took the safe route to commit suicide. Though, the
convict is not being held guilty u/s 306 of IPC, the fact of the matter is
that morally speaking he was at fault all the time.
6. Having regard to the nature of offences and facts and
5
circumstances of the case, I sentence the convict Suresh Sehgal S/o
Late Sh. Roshan Lal to undergo rigorous imprisonment for a period of
three years and also to pay a fine of Rs.50,000/- and in default to
further undergo rigorous imprisonment for a period of six months u/s
420 of I.P.C.
7. I further sentence the convict Suresh Sehgal S/o Late Sh.
Roshan Lal to undergo rigorous imprisonment for a period of two
years and also to pay a fine of Rs.25,000/- and in default to further
undergo rigorous imprisonment for a period of three months u/s 465
of I.P.C.
8. I further sentence the convict Suresh Sehgal S/o Late Sh.
Roshan Lal to undergo rigorous imprisonment for a period of three
years and also to pay a fine of Rs.50,000/- and in default to further
undergo rigorous imprisonment for a period of six months u/s 468 of
I.P.C.
9. I further sentence the convict Suresh Sehgal S/o Late Sh.
Roshan Lal to undergo rigorous imprisonment for a period of two
years and also to pay a fine of Rs.25,000/- and in default to further
undergo rigorous imprisonment for a period of three months u/s 471
of I.P.C.
10.All the sentences shall run concurrently and the period in custody
already undergone by the convict shall be set off as per Section 428
of Cr.P.C.
11.It is further directed that out of the fine realized from the convict, a
sum of Rs.1,25,000/- as compensation be paid to wife of the
deceased Smt. Veena Joshi as per Section 357 Cr.P.C.
6
12.At this stage, an application has been moved on behalf of convict
for suspension of sentence u/s 389(3) of Cr.P.C. The same is
opposed by the Ld. Addl. Public Prosecutor for the State. Heard. The
convict is not shown to be suffering from any serious ailment.
Though, the convict has been on bail, at the same time having regard
to the nature of the offences and the facts and circumstances of the
case particularly for the fact that by committing forgery, convict
brought about such circumstances which forced the deceased to end
his life, I am not inclined to grant bail to the convict. The same is
dismissed. The convicts has been supplied copy of the judgment
dated 11.10.2010 as well as the order on sentence passed today i.e
13.10.2010 free of costs. File be consigned to record room.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY: ON 13.10.2010. ASJ-II, NORTH DISTRICT,
DELHI.
7
IN THE COURT OF SH. DHARMESH SHARMA,
ASJII, NORTH, DELHI.
SESSIONS CASE NO: 34/2007
Computer I. D. No. 02401R0679512007
FIR No: 03/07
P.S. RMD
U/S:306/420/467/471/120BIPC
DATE OF INSTITUTION: 11.07.2007
DATE ON WHICH ARGUMENTS HEARD
AND JUDGMENT RESERVED : 06.10.2010
DATE ON WHICH JUDGMENT DELIVERED: 11. 10.2010
STATE Vs 1) Suresh Sehgal
S/o Late Sh. Roshan Lal
R/o C2, Golden Park, Shiv Puri,
Delhi
2) Shashi Bhushan
S/o Sh. Dharam Pal Sharma
R/o House no. 15/137, Geeta
Colony, Delhi 110031
3) Shiv Kumar Rohilla
S/o Sh. Mam Chand
R/o House no. 7, Vikas Puri,
Kabirpur, Sonipat, Haryana.
APPEARANCE:
Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor for the
8
State
Mr. Rajesh Bhatia, Advocate for the accused Suresh Sehgal
Mr. S. K. Saha, Advocate for the accused Shiv Kumar Rohilla
Mr. Adarsh Saini, Advocate for the accused Shashi Bhushan
11 .10. 2010
JUDGMENT:
1. Accused persons namely Suresh Sehgal S/o Late Sh. Roshan Lal, Shiv Kumar Rohilla S/o Sh. Mam Chand and Shashi Bhushan S/o sh. Dharam Pal Sharma have been arraigned for trial by the prosecution on the allegations that accused Suresh Kumar Sehgal in criminal conspiracy with accused Shashi Bhushan got opened an account in the name of deceased Vimal Prakash Joshi in UTI Bank, Swastaya Vihar, Branch, Delhi in pursuance whereof accused Shashi Bhushan introduced the account interalia giving wrong residential and work addresses; and that the accused Suresh Sehgal in conspiracy with accused Shiv Kumar Rohilla filed a false verification report in regard to the address of the deceased Vimal Prakash Joshi and thereby on the basis of documents containing forged signatures of deceased Vimal Prakash Joshi accused Suresh Sehgal got financed a Santro Car on a loan from ABN Amro Bank, Swastaya Vihar, Delhi, without knowledge of deceased Vimal Prakash Joshi ; and that when the Bank persisted with recovery of loan amount accused Suresh Sehgal did not repay the loan despite 9 promises made to deceased Vimal Prakash Joshi and rather threatened him with death or death to his family members as a result of which Suresh Sehgal abated commission of suicide by deceased Vimal Prakash Joshi on 21.12.2006.
2. The case of the prosecution is that on 21.12.2006 at about 7:30p.m DD no. 18 was lodged at Police Post Railway Shahdara Ex.PW 20/A on receiving a railway memo to the effect that driver of GD 10/EMU had informed that one dead body was lying near KM 7/2 7/4 on railway tracks on the northern line belt. The DD was handed over to SI Ajay Pratap (PW 20) who reached the spot shown in the site plan Ex.PW 20/G along with the Ct. Harender no. 342/DRP (Not examined) where they found dead body of a male with his head crushed and from the personal Jama talashi of the deceased two suicide notes in Hindi were recovered from the right side pocket of the trouser which were seized vide Fird Jamatalashi Ex.PW 20/B whcih are Ex.PW 5/C and PW 5/D.
3. The suicide note Ex.PW 5/C translated in English read to the effect that "I am Vimal Prakash R/o B4, Bharat Apartments, Delhi110095 residing in Dilshad Colony and I am going to kill myself since Suresh Sehgal has cheated me. I had given some documents to Suresh Sehgal to obtain a loan which papers have 10 been misutilized by Suresh Sehgal to get a car loan and now the bank has been tormenting me and Suresh has been threatening to kill me and my children and Suresh be considered as responsible for my death".
4. Further Suicide Note Ex.PW 5/D is also identical except for the fact that it elaborates that "Suresh took a loan in my name without my consent on the basis of certain documents and when Suresh was confronted he promised that he would repay all the installments but he did not repay any installments and now the bank has been tormenting me and accused Suresh Sehgal is threatening to kill me, my wife and children and therefore, I am killing myself and Suresh Sehgal be regarded as responsible for my death".
5. SI Ajay Pratap prepared inquest report Ex.PW 20/C wherein public witnesses Kanhaya and Subhash in statement Ex. PW 20/D and PW 20/E informed that the deceased Vimal Prakash Joshi had jumped in front of a speeding train. The family members of the deceased were in the meanwhile informed on the mobile no. indicated/written in the suicide notes and the dead body was identified by Deepak Joshi (PW10) son of the deceased whose statement Ex.PW 10/A was recorded. The gist of which is that "his father Vimal Prakash Joshi was unwell for the last six months and on medical rest and in fact under lot of mental distress for about four 11 years; that his father had been given some documents to his friend Suresh Sehgal to procure some loan at the time of marriage of his sister Anju Sharma but the same was not availed since the rate of interest was very high and the said documents were manipulated by Suresh Sehgal on the basis of which he had obtained a car loan and this fact came to notice of his father when he received a court notice from ABN Amro Bank; and that Suresh Sehgal promised several times that he would repay the same by paying all the installments but he did not keep his promise and the conduct of the Suresh Sehgal forced my father to commit suicide".
6. During the course of investigation by SI Ajay Pratap (PW20, it came out that a loan application dated 15.03.2002 was submitted in the name of deceased Vimal Prakash Joshi through Pelicon Fin Lease , office at 2979 Ranjeet Nagar, New Delhi whereby five security cheques each in the sum of Rs.10,670/ Ex.PW 11/B1 to B5 drawn on UTI Swathya Vihar, Delhi vide account no. 055010100033646 purportedly signed by Vimal Prakash Joshi were issued and a Hyundai Santro Car no. DL 2CW0629 was financed which was delivered to accused Suresh Sehgal on the basis of Authority Letter Ex.P23 purportedly executed by deceased Vimal Prakash Joshi. During the investigation it was also found that for non payment of car loan M/s ABN Amro Bank filed a Civil Suit No. 140/03 which was decided on 01.07.2003 by the court of Dr. 12 Naipal Singh, the then Ld. ADJ, Delhi and the suit was decreed in favour of the bank ex parte and the execution application was filed in the court of Smt. Neena Krishna Bansal, Ld. ASJ, Delhi and on notice objections were filed by deceased Vimal Prakash Joshi which were dismissed vide order dated 15.12.2006. During the investigation IO seized the relevant documents from the UTI bank (later renamed as Axis Bank) and also from ABN Amro Bank and during the course of investigation it was ascertained that account no. 055010100033646 in UTI Bank was opened in which accused Shashi Bhusahn had given a false introduction in favour of the account holder i.e deceased Vimal Prakash Joshi and accused Shiv Kumar Rohilla at the time of obtaining the car loan had given a false verification report regarding the residential address of the deceased.
7. After completion of investigation, police report / charge sheet was initially filed against the accused Suresh Sehgal on 11.07.2007 and the investigation continued and later supplementary charge sheet was filed against the accused Shiv Kumar Rohilla and Shahi Bhushan.
CHARGE
8. Needless to state that accused Suresh Sehgal S/o Late Sh. Roshan Lal was charged for entering into a criminal conspiracy 13 with coaccused Shashi Bhushan for opening an amount in the name of Vimal Prakash Joshi in UTI bank and by forging documents obtaining a car loan from ABN Bank in the name of Vimal Prakash Joshi and forging documents in conspiracy with coaccused Shiv Kumar Rohilla to get the delivery of the car and was slapped with commission of offence u/s 120B read with section 420/467/468/471 of IPC.
9. Accused Suresh Sehgal S/o Late Sh. Roshan Lal was also charged on the count that by doing such acts as aforesaid he abated commission of suicide by deceased Vimal Prakash Joshi and thereby committed an offence u/s 306 of IPC.
10. So far as accused Shiv Kumar Rohilla S/o Sh. Mam Chand and Shashi Bhushan S/o Sh. Dharam Pal Sharma are concerned, they were also charged for entering into a criminal conspiracy with coaccused Suresh Sehgal and committing offences u/s 120B read with Section 420 of IPC. All the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
11. The prosecution in order to prove its case examined as many as 35 witnesses. The Main witnesses for the prosecution 14 were of course PW 5 Smt. Veena Joshi wife of deceased Vimal Prakash Joshi besides son of the deceased namely Deepak Joshi (PW10) and daughter Ms. Alka (PW15). I shall dwell on their evidences later on in my judgment.
12. In the category of Bank Witnesses PW1 was Ganesh Dutt, Manager Axis Bank (earlier UTI Bank). He deposed about seizure of the Account Opening form and other related documents in the name of Vimal Prakash Joshi which are Ex. P1 to P10 vide seizure memo Ex.PW 1/A; PW 2 was Ms. Deepali an Executive from Axis Bank . She also deposed about the seizure of documents vide memo Ex.PW 1/A. Another witness from Axis bank PW 23 Pankaj Kumar, Manager (Operation). He also deposed seizure of documents Ex.P 1 to P10 consequent to the request letter by IO vide seizure memo Ex.PW 23/A and he also deposed that he handed over documents concerning M/s Safe Hand Network Pvt. Ltd, a concern in which accused Shashi Bhushan was one of the Director, marked X1 to X23 for identification which were seized by IO vide memo Ex.PW 23/B.
13. From ABN Amro Bank were examined PW 11 Suchi Kwatra, Manager (Collection) He deposed that he had handed over five cheques Ex.PW 11/B1 to B5, photocopy of loan repayment 15 receipt Ex.PW 11/C, photocopy of verification report Ex.PW 11/D to IO SI Ajay Pratap Singh which were seized vide memo Ex.PW 11/A. These were the documents that were submitted at the time of obtaining the car loan in the name of Vimal Prakash Joshi. PW 12 was Vipin Khullar, Manager,(Collection). He deposed about three notices issued to Vimal Prakash Joshi Ex.PW 12/X4 (collectively) besides authority letter mark Ex.PW 12/X1, power of attorney and authorized signatures of Sapna Mehra and Sachin Kwatra Ex.PW 12/X2 who signed the car loan agreement, carbon copy of receipt no. 3244 dated 28.06.2003 marked Ex.PW 12/X3 which were seized vide memo Ex.PW 12/A.
14. From the Factoring House i.e Agency which did the verification work in regard to loan application in the name of the deceased Vimal Prakash Joshi were examined PW 27 Sanjay Chawla. He deposed that accused Shiv Kumar Rohilla was working as a Field Officer in the company who verified the residential address of Vimal Prakash Joshi. This was done at the behest of their client M/s ABN Amro Bank. Another witness was Satish Kapoor (PW 31) he was working as Direct Sales Associate with ABN Amro bank who deposed that the car loan was sanctioned in the name of deceased Vimal Prakash Joshi for a sum of Rs. 3,07000/ through sub broker Chander Bhushan Sharma who was paid an amount of 16 Rs. 9210/ as commission. PW 33 was Devender Kumar Srihan. He was the Head of Accounts & Administration in the Factoring House. He deposed that the verification in regard to the car loan agreement in the name of Vimal Prakash Joshi was done by accused Shiv Kumar Rohilla and various documents in this regard which are Ex.PW 33/B to D that were seized vide memo Ex.PW 33/A.
15. From the MG Hyundai Jhandewalan were examined PW 13 Harjeet Singh Sr. Manger and PW 14 Vipin Sharma. They deposed about the Authority Letter Ex.P23 and receipt Ex.P24 on the basis of which the delivery of Santro car no. DL2CW 0629 was made over to the accused Suresh Sehgal vide memo Ex.PW13/A. PW 17 was N. K. Paliwal, Chief Manager from State Bank of Bikaner & Jaipur, who at the relevant time was posted as the Chief manager at Krishna Nagar, Delhi. He deposed providing the admitted hand writing and signatures of Suresh Sehgal who was a customer of the bank to the IO; PW 24 was Sheela Rani, mother of the accused Suresh Sehgal. She deposed that shop no. 11/88A Geeta Colony was her property where her son Rajiv Sehgal was running a mobile repair shop. This is the same address which was written in the account opening form of deceased Vimal Prakash Joshi Ex.P1. PW25 was Rajiv Sehgal brother of the accused Suresh Sehgal who 17 deposed that he had been running a shop of mobile sale and repair at 11/88A Ground Floor, Geeta Colony, Delhi. PW 26 was Jitender Kapoor. He deposed that he had taken the shop no.11/88A Geeta Colony, Delhi on rent from Smt. Sheela Rani sometimes in the year 2004 and left the shop in the year 2008. PW 8 was Mukesh Bhahiraya and PW 9 Mahavir Prasad Yadav were from Transport Department Delhi who deposed providing the documents concerning the registration of Santro DL 2CW 0629 that are Ex.P11 to P22 vide memo Ex.PW 8/A to the IO. PW 6 was Inderesh Kumar Verma, Manager, Kashmere Gate, Delhi and PW 7 Mr. V. S. Senger, Sorting Assistant, was also from the same department. This department was one where deceased Vimal Prakash Joshi was employed. These witnesses were deposed about seizure of certain documents by the police which contained admitting hand writing and signatures of deceased Vimal Prakash Joshi in their office. PW32 was Manish Kumar, Asstt. Manager from G. E. Money, Gurgaon, Haryana, who produced the agreement entered into between ABN Amro Bank and Pelican Fine Lease in regard to the buying of the Santro Car on hire purchase basis and handing over the documents to IO Ex.PW 32/A and PW 32/B.
16. In the category of medical and forensic witnesses the prosecution examined PW 16 Dr. Meghali Kelkar, Jr. Demonstrator, 18 from GTB Hospital, Delhi who conducted the postmortem on the body of the deceased Vimal Prakash Joshi; PW 19 Mr. Deepak SSO documents, FSL Rohini, Delhi. He deposed about the examination of the questioned documents on which I would reflect later on in my judgment.
17. The rest of the witnesses were police witnesses and formal witnesses . PW3 was Ct. Ziley Singh. He was associated in the investigation on 05.02.2009 with IO SI Ajay Pratap Singh. PW 4 was B. S. Rawat , Record Room Sessions, Tis Hazari Courts, Delhi. He produced the record in regard to suit no. 140/03 decided on 01.07.2003 by Sh. Naipal Singh, Ld. ADJ, Delhi filed by M/s ABN Amro Bank against deceased Vimal Prakash Joshi; PW 18 was HC Ishwar. He was Duty Officer at PS Railway Main, Delhi RMD who registered the present FIR Ex.PW 8/A and proved his endorsement on the rukka Ex.PW 8/B; PW 20 was SI Ajay Pratap Singh IO; PW 21 was Ct. Parvesh who recorded the DD no. 18 Ex.PW 20/A on 21.12.2007 at 7:30p.m; PW 22 was Inspector Kapil Dev who was Investigating Officer in this case after transfer of SI Ajay Pratap on 26.04.2007. PW 28 was Ct. Jashwat Singh. He was associated in the investigation on 05.01.2008 on which accused Shiv Kumar Rohilla was arrested ; PW 29 was Ct. Mohd. Asif . He was involved in the investigation when on 01.10.2007 accused Shashi Bhushan 19 was arrested; PW 30 was Ct. Ashok Kumar. He deposed that he was posted at RMD and deposed taking the case property from MHC(M) and deposited the same with FSL, Rohini, Delhi. PW 34 was SI Rajinder Dubay. He deposed being associated in the investigation and during which time specimen signatures of accused Shashi Bhushan were taken on sheets which are marked S1 to S6 and marked Ex.PW 34/A1 to A6. PW 35 was Inspector Ashok Kumar, SHO PS Old Delhi Mains and IO at the conclusive stage of the case. The court also examined Chander Bhushan Sharma as court witness who was the subbroker of Pelican Fine Lease Company Ltd and was instrumental in the processing of the document concerning the car loan on which I would dwell later on in my judgment.
STATEMENT OF ACCUSED
18. On the close of the prosecution evidence, accused persons were examined as per section 313 Cr.P.C. On putting the incriminating evidence, the accused Suresh Sehgal denied that he had manipulated or fabricated any document for loan by deceased Vimal Prakash Joshi. He denied taking any loan at all. However, he admitted that at the time of taking delivery of the car he had accompanied the deceased Vimal Prakash Joshi since deceased did not know driving and he had given his own to drive away the car 20 from the seller. Accused Shashi Bhushan and accused Shiv Kumar Rohilla denied the prosecution case and stated that they have been falsely implicated in this case. The accused Suresh Sehgal only chose to lead defence evidence by producing the certified copy of the execution application and the objection there upon filed by deceased Vimal Prakash Joshi which are marked Ex. DX1 and DX2 respectively.
ARGUMENTS:
19. I have given my thoughtful consideration to the submissions made by Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor for the State and Mr. Rajesh Bhatia, Ld. Counsel for the accused Suresh Sehgal, Mr. S. K. Saha, Ld. Counsel for the accused Shiv Kumar Rohilla and Mr. Adarsh Saini, Ld. counsel for the accused Shashi Bhushan. I have also perused the oral and documentary evidence on the record of the case. COMMISSION OF SUCIDE :
20. At the outset, there could be no dispute that the deceased Vimal Prakash Joshi committed suicide. IO PW2 Ajay Pratap prepared the inquest papers Ex. PW20/C at the spot which reveals that the deadbody was found lying near at Northern Line Railway Tracks near K.M. Pole no. 7/4. The statements of two eye 21 witnesses namely Kanhiya Ex. PW20/D and Subhash Ex. PW20/E who were passerby were recorded by the IO who stated that soon after the incident a crowd of people had gathered at the spot and everybody was saying that the deceased had deliberately jumped in front of a speeding train and was hit resulting in his death. The said evidence falls in the realm of res gestae which is admissible in evidence. It is also in evidence that from the personal jamatalashi of the deceased Ex. PW20/B, the suicide notes Ex. PW5/C and PW5/D, the contents of which have been described above, were recovered. PW5 Smt. Veena Joshi, wife of the deceased categorically stated that the suicide notes were in the handwriting of her husband and she also identified the signatures of her husband at point Q1 and Q2 in the suicide notes. Lastly, the postmortem report Ex. PW16/A reveals that as many as 12 external injuries were found on the body of the deceased. The injury no. 1 was in the nature of crush injuries involving head and facial bones with skull cap and underline brain matter missing with multiple fractures of facial bone and base of skull. There was a crush injury involving bones, muscles of left leg with multiple fracture of both bones of legs proluditing wound present on the left lower leg besides fractures of left forearm. The other injuries were in the nature of abrasion and lacerated wounds. The cause of death was shock due to ante - mortem cranio cerebral damage due to blunt force impact. 22 There is no much merit in the submissions of Mr. Bhatia, Ld. Counsel for the accused Suresh Sehgal that the nature of injuries were not such which could have been sustained on an impact from a running train. Though, no part of the body was amputated, it is apparent that the impact of the hit by a running train was so massive that it caused the instantaneous death of the deceased. APPRECIATION OF EVIDENCE INTO THE CAUSE OF DEATH.
21. The real issue that needs to be addressed is what were the reasons that compelled the deceased to end his life in the manner that he did ; and whether or not the accused persons had any role to play in the same ? For that to answer, the contents of the suicide note Ex. PW5/C and Ex. PW5/D have already been referred above. It is pertinent to mention here that IO during the investigation collected the specimen hand writings and signatures of the deceased available with his department from PW6 Indresh Kumar and PW7 V. S. Singh. The material collected along with suicide notes were sent to the FSL and as per report Ex. PW19/A, the signatures at point Q2 in the suicide note Ex.PW5/C and Q1 in Ex. PW5/D were found to have been written by the same person. The background of the case leading to the suicide have been explained by PW5 Smt. Veena Joshi wife of the deceased. It would be expedient to refer to her evidence in toto.
23
22. PW5 Smt. Veena Joshi deposed that her husband was working as a Sorting Assistant at Delhi Railway Mail Services ; that about 45 years prior to the incident, her husband was in financial crises as he had to repay some loan taken at the time of marriage of their daughter in December, 2001 ; that accused Suresh Sehgal met her husband and offered to arrange some loan for him ; that as demanded by accused Suresh Sehgal, her husband gave him copies of Ration Card, Payslip, Office Identity Card and his photograph ; that her husband needed Rs.60,000/ at that time ; that accused took the signatures of her husband on some papers including some loan application form with the promise to arrange the loan in about 810 days. She deposed that later her husband did not take the loan as the rate of interest was quoted on the higher side and her husband called upon accused Suresh Sehgal to return his documents ; that the accused promised to return the documents but after 12 days, he stated that the documents along with photograph had been submitted with the bank along with loan application and the same could not be taken back. She deposed that they reconciled to the fact that loan could not be sanctioned.
23. She then deposed that after about 67 months, a person came from M/s ABN Amro Bank at their house and stated that he 24 had come to collect the installments towards a car loan which had not been paid; that they told that person that they had not taken any car loan or personal loan ; that they confronted the accused Suresh Sehgal who revealed that he had taken a car loan in the name of her husband and assured that he would repay the installments and they need not worry. She also deposed that a complaint was lodged with the P.S. Anand Vihar where accused was called who told them that he had sold the car to a third party who had agreed to pay the installments but did not fulfill the promise and accused assured that he would continue to pay the installments and they need not worry. She then deposed that after sometime they got a notice from the Court that the ABN Amro Bank had filed a suit against them and this time her husband went to the bank and inspected the files and found that somebody had forged his signatures on the basis of which a car loan was obtained. She also deposed that when accused Suresh Sehgal was confronted, he gave a cheque of Rs.80,000/ in the name of ABN Amro Bank to her husband which was proved by her in her statement Ex. PW5/B and she also deposed that the accused gave a Shapath Patra (Affidavit) dt. 27.10.05 giving an undertaking that it was his liability to pay the auto loan and he would cooperate with her husband in future. This affidavit was also produced by her in the evidence which is Ex. PW5/A. The production of Shapath Patra (Affidavit) Ex. PW5/A and the cheque Ex. PW5/B for the first 25 time in evidence of PW5 Smt. Veena Joshi was objected to by Ld. Counsel for accused Suresh Sehgal.
24. Though the said affidavit Ex. PW5/A and the cheque Ex. PW5/B were not filed along with the chargesheet, I do not see as to why the same cannot be taken into consideration. The copies of the same were supplied to the accused at the time of their production in evidence and it is interesting to note that the issuance of cheque as also the execution of affidavit were not even denied in the crossexamination of PW5 or for that matter in the statement u/s 313 Cr.P.C by accused Suresh Sehgal. Perusal of the contents of Affidavit PW5/A indicates that accused Suresh Sehgal in his own handwriting and signatures admitted that he had taken a car loan to buy a Santro Car no. DL 2CW 0629 in the name of deceased Vimal Prakash Joshi without paying anything to the deceased. The contents further read that the Santro car was sold through one Narinder Sharma s/o Narain Singh on his guarantee to one Rakesh Kumar s/o Sant Ram r/o Sonepat Haryana on 7.6.2002 and that the said persons did not repay the installments contrary to their promise. It further reads that accused Suresh Sehgal had paid three installments each for Rs.10,670/ and as per final settlement with the bank he further paid Rs.20,000/ in cash. The accused also stated that in this entire episode, Vimal Prakash Joshi was not to be 26 blamed and that he would cooperate with Vimal Prakash Joshi. In fact, it also comes out in the crossexamination of PW5 that accused Suresh Sehgal lodged a complaint with SHO, P.S. Anand Vihar marked X/A dt. 12.12.2002. The contents of which are also similar as in the affidavit dt. 27.10.05 Ex. PW5/A.
25. It is pertinent to mention here that PW10 Deepak Joshi, son of the deceased corroborated the evidence that his father had given some papers to accused Suresh Sehgal for availing personal loan but the loan was not taken due to high rate of interest ; and that he also corroborated the evidence that his father did not open any account in UTI Bank nor got a car financed from M/sABN Amro Bank ; and that accused Suresh Sehgal in conspiracy with some employees of M/s Amro Bank had availed the car loan without knowledge of his father. He also deposed that when his father confronted accused Suresh Sehgal, he promised to repay the loan but at a later stage he went back on his promise. Both PW5 Veena Joshi and PW10 Deepak Joshi deposed that accused Suresh Sehgal also threatened to kill deceased Vimal Prakash Joshi and harm his family in case the matter of repayment of loan is persisted with him.
26. To sum up, the evidence of PW5 Veena Joshi and her 27 son PW10 Deepak Joshi besides suicide notes Ex. PW5/C and PW5/D coupled with the affidavit of the accused Suresh Sehgal Ex.PW5/A lead to the inference that the car loan from M/s ABN Amro Bank to finance the purchase of Santro Car was taken without the knowledge and consent of the deceased Vimal Prakash Joshi and the deceased Vimal Prakash Joshi confronted a situation where the bank officials persisted for repayment of the loan from him. THE DOCUMENTATION : ACCOUNT WITH UTI (AXIS) BANK
27. It is in the evidence of PW1 and PW2 besides IO PW20 SI Ajay Pratap that during the course of investigation, the Account Opening Form with UTI Bank Swasthya Vihar (Axis Bank) were seized Ex. P1 besides the introduction form Ex. P9 and other documents. Documents Ex. P1 bears the signatures of Vimal Prakash Joshi at point Q1, Q3 to Q6. The account was opened on 8.3.2002 in the name of deceased Vimal Prakash Joshi bearing no. 33646. The Account Opening Form is also Ex. PW29/E. There are two vital facts that emerge from the said document Ex. P1 (also Ex. PW29/E). The Account Opening Form was sent to FSL and as per report Ex. PW19/A, an opinion was given that the signatures of Vimal Prakash Joshi at Q1, Q3 to Q6 did not tally with the specimen signatures of deceased V.P. Joshi, which of course were collected from his department through PW6 and PW7. The second 28 is that in the document Ex. P1 (also Ex. PW29/E), the residential address of Vimal Prakash is mentioned as 11/88A, Ground Floor, Near Kanchan Studio, Geeta Colony, Delhi31. It has come in the evidence of PW5 Smt. Veena Joshi and also admitted fact by the accused persons that all along the deceased had been residing at B4, Bharat Apartments, Dilshad Colony, Delhi. Further, it has come in the evidence of PW24, Sheela Rani and PW25 Rajiv Sehgal besides PW26 Jitender Kapoor that it was PW25 Rajiv Sehgal who has been running a mobile repair shop from the said premises at 11/88A, Ground Floor, Near Kanchan Studio, Geeta Colony, Delhi31 who incidentally happens to be the real brother of accused Suresh Sehgal.
28. Another observation that needs to be made that though the Account Opening Form were accompanied with photocopy of identity card Ex. P6 and Pay Slip Ex. P7 of the deceased, it did not indicate his residential address. Another observation is apt that after opening of the account, the UTI bank appears to have written a letter to the deceased Ex.P5, congratulating him about opening an account with the bank and the same was addressed to M/s Shri Laxmi House, D355/107, Main Vikas Marg, Laxmi Nagar, Delhi92 and it is in evidence that the deceased was not running any business from the said premises and was rather working as a Sorting Assistant with Ministry of Telecom, Department of Post, 29 GDK Sorting House, Connaught Place, New Delhi.
29. As regards the introducer of the account, Ex.P9 indicates that accused Shashi Bhushan appears to have signed as a Director of M/s Safe Hand Network Marketing Pvt. Ltd. at Sri Laxmi House, D355/107, Main Vikas Marg, Laxmi Nagar, Delhi 110092 the same address where letter Ex.P5 was sent by the Bank. The IO during the investigation also seized the account opening form of M/s Safe Hand Network Pvt. Ltd. Ex.P10 also Ex.PW 29/D which of the two Directors, bear the photograph of accused Shashi Bhushan. The signatures of accused Shashi Bhushan on the account opening form at point Q33 to Q41 along with the documents Ex. P9 and Ex.P10 were sent to the FSL and the same as per specimen signatures of accused S21 to S26 which are Ex.PW 34/A1 to A6 were found to have been made by the same person.
30. The inference is inevitable that a bank account was opened with UTI Bank (which later converted its name to Axis Bank), Swastya vihar, Delhi in the name of Vimal Prakash Joshi by supplying wrong residential as well as business address or address of the place of occupation in a deliberate manner and the FSL report Ex.PW 19/A is uncontroverted that the signatures of Vimal Prakash Joshi on the account opening form at point Q1 , Q3 to Q 6 in 30 Ex.P1 were not genuine and probably forged. It is no relief to the accused Suresh Sehgal that the FSL report also did not give an opinion that the pattern of signatures forged were similar as the handwriting of the accused. There is no suggestion to PW5 or for that matter PW10 that accused Shashi Bhushan had any prior acquaintance with deceased Vimal Prakash Joshi so as to introduce the deceased facilitating opening of the bank account in question. The addresses that were supplied in the account in opening form had a nexus with the brother of the accused Suresh Sehgal. In fact form no. 60 Ex.P8 was also filled up which contained wrong address of the account opener i.e the deceased Vimal Prakash Joshi. During the investigation IO also seized vide memo Ex.PW 11/A five cheques each in the sum of Rs.10,670/ Ex.PW 11/B1 to B5 that purportedly bore the signatures of the Vimal Prakash at point Q7 to Q16 issued against the account no. 33646 opened with UTI Bank. The same were examined by the hand writing expert and as per report Ex.PW 19/A it was observed that the signatures did not tally with the specimen signatures of deceased Vimal Prakash Joshi marked A1 to A30.
31. It is pertinent to mention that PW1 and PW 2 stated that personal presence of the customer is not required for opening a bank account but verification is done about the address 31 telephonically or otherwise. Obviously, when the address was wrong and having no nexus with Vimal Prakash Joshi, any verification if done was not authentic and it appears that the bank proceeded with the matter of the opening of the account in a routine manner and necessary precautions were not adhered to. DOCUMENTATION: LOAN FROM ABN AMRO BANK
32. That brings us to the documentation of loan agreement with M/s ABN Amro Bank, Swastya Vihar, Delhi. The loan documents along with the stamp paper and declaration form besides promissory note purportedly bearing the signatures of Vimal Prakash Joshi at point Q27 to Q36 were examined and as per the FSL report Ex.PW 19/A the signatures were not found genuine. Further, the Authority Letter Ex.P23 purportedly executed by the deceased Vimal Prakash Joshi also casts a doubt since his signatures at point Q 39 were also not found to be genuine. On the other hand, the signatures of accused Suresh Sehgal on the authority letter at point Q38 were tallied with the specimen as S11 to S20 and were found genuine.
33. It is pertinent to mention here that accused Suresh Sehgal admits that he had taken the delivery of the Santro Car but his defence is that the deceased Vimal Prakash Joshi did not know driving and , therefore, he had gone along with the deceased in 32 order to take delivery and submitted his driving licence. The only point that was raised by Mr. Rajesh Bhatia, Ld. Counsel for the accused Suresh Sehgal is that in the auto loan documents the correct address of the borrower B4 Bharat Apartment, Dilshad Colony was given. However, that does not cut much ice for the reason that the cheques Ex.PW 11/B1 to B5 each in the sum of Rs. 10,670/ issued as security have been found to be forged with the signatures of deceased Vimal Prakash Joshi. It is here pertinent to mention the evidence of court Witness Chander Bhushan Sharma. He deposed that he was working as subbroker of Pelicon Fin Lease Company and the documents for processing the car loan were submitted to him by accused Suresh Sehgal which was forwarded by him to his Company i.e M/s Pelicon Finlease which in turn forwarded the documents to M/s ABN Amro Bank. He deposed that after verification by the bank, the company was informed that the car loan has been approved. This witness categorically stated that the deceased Vimal Prakash Joshi never met him nor he made any personal inquiry from him. He deposed that the application form PW 4/A1 to A17 for obtaining the car loan were submitted by accused Suresh Sehgal. The only things that comes out in his cross examination is that the loan was sanctioned as per the M/s ABN Bank after routine verification of the address of the borrower. It is here that the role of coaccused Shiv Kumar Rohilla comes into light. 33 It appears that there was an agreement between ABN Amro Bank and the Factoring House dated 01.01.2000 Ex.PW 29/H1 to H14 whereby the Factoring House was supposed to conduct the verification of the borrowers. PW 27 Sanjay Chawla, Manager of the Factoring House besides PW33 Devender Kumar Srihan both deposed that Shiv Kumar Rohilla was Field Officer / Agent who conducted the verification which document is marked X dated 04.03.2002. PW 27 Sanjay Chawla and PW 33 Devender Kuamr Srihan deposed that the information regarding the borrower i.e deceased Vimal Prakash Joshi was given on a pager of accused Shiv Kumar Rohilla who physically verified the address of the borrower besides telephonic communication. Mr. Shah, Ld. Counsel for the accused Shiv Kumar Rohilla urged that the verification report marked X as well as PW 11/D indicate that his client had visited the residence of deceased Vimal Prakash Joshi at B4, Bharat Apartments, Dilshad Colony, Delhi and he had given a detailed report about the name of the wife, land line telephone number, the land mark near the place of residence and also the available movable properties in the nature of a scooter belonging to deceased Vimal Prakash Joshi. It was also pointed out that PW33 Devender Kumar Srihan deposed that after the accused Shiv Kumar Rohilla was arrested, he had taken the IO along with him straight to the building where flat of the deceased Vimal Prakash Joshi was 34 located. Well, the verification report marked A Ex.PW 11/D wrongly mentions the name of the wife of the deceased as Smt. Meena Joshi in stead of Smt. Veena Joshi. The report does not indicate who was the member in the family of the deceased who met him and how the same was verified. While it can be said that the verification was done in a routine manner, it is doubtful if any member of the deceased was apprised about the purpose of such verification. PW 5 Smt. Veena Joshi and PW 10 Deepak Joshi were not given any suggestion that the car loan was sanctioned after due verification. Mere fact that PW10 Deepak Joshi was working in the Factoring House at some point of time for two months does not imply that he could be aware of such verification particularly when it is not clear what was the precise period when he was working in the Factoring House.
34. Much was argued that Civil Suit no. 140/03 was filed and notice thereof was served on the deceased Vimal Prakash Joshi who deliberately did not put appearance before the court. Perusal of the record shows that suit for recovery of Rs. 3,33,527.99 with interest at the rate of 10% was filed by ABN Amro Bank under order XXXVII CPC. The notice thereof appears to have been received by deceased Vimal Prakash Joshi on 14.06.2003 but no appearance was filed and consequently the court of Dr. Naipal Singh, Ld. ADJ, 35 Delhi decreed the suit ex parte vide judgment dated 01.07.2003. It is also pointed out that the bank filed an execution application on 12.04.2005 in which objections were filed by Vimal Prakash Joshi on 27.10.2005 wherein stand was taken that he had been defrauded by accused Suresh Sehgal but the objections were dismissed by Smt. Neena Krishna Bansal, Ld. ADJ, Delhi vide order dated 15.12.2006. It was urged that in view of the fact that objections were dismissed by the competent civil court, it does not lie in the mouth,PW5 and PW 10 or for that matter the prosecution to claim that any fraud was played by the accused Suresh Sehgal. This plea is not legally sustainable since the decision of a civil court is not binding on Criminal Court except where the decision operates in rem as in the case of a probate. Reference in this can be made to decision in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Administration), 2009 (5) SSC 228. This court can not mince words in indicating that the Banks in this case do not come out clean in the entire episode and the Bank witnesses have tried to shield their Banks in regard to the irregularities committed in the present transaction. It is manifest that the manner in which the loan was sanctioned left much to be desired.
CONCLUSIONS:
35. The position that emerges from the factual and 36 circumstantial evidence on the record are as under:
i). That the deceased Vimal Prakash Joshi was in need of some money to repay the loan taken at the time of marriage of his daughter in December, 2001 and he had some discussion with accused Suresh Sehgal who was given some documents signed or otherwise to procure a loan but the loan was not taken for higher rate of interest demanded;
ii). That the documents given by the deceased Vimal Prakash Joshi to accused Suresh Sehgal were not returned
iii). That bank account was opened with UTI (Axis) Bank on 08.03.2002 and the Account Opening Form Ex. P1 read visavis FSL report clearly indicate that it did not bear the genuine signatures of deceased Vimal Prakash Joshi and the inference is that the signatures of deceased Vimal Prakash Joshi were forged.
iv). That at the time of opening of the account, co accused Shashi Bhushan introduced the account opener i.e Vimal Prakash Joshi as per documents Ex.P9 and P10 which did not bear the correct address residential address as well as office of the deceased Vimal Prakash Joshi.
v). That accused Suresh Sehgal processed the auto loan documents dated 15.04.2002 Ex.PW 4/A1 to A7 and the FSL report indicates that it did not bear the genuine signatures of deceased Vimal Prakash Joshi.
vi) That the address of the deceased Vimal Prakash Joshi was verified by coaccused Shiv Kumar Rohilla but there is a doubt whether the deceased and / or his family members were apprised the purpose of verification;
vii) That the delivery of the Santro car was taken by accused Suresh Sehgal bearing forged signatures of deceased Vimal Prakash Joshi on Authority Letter Ex.P 37 23 brought out by the FSL report Ex.PW 19/A;
viii) That as per complaint with the police marked XA dated 12.12.2002 lodged by accused Suresh Sehgal affidavit dated 27.10.2005 Ex.PW 5/A and cheque for Rs. 80,000/ dated 21.09.2005 Ex.PW 5/B, the accused Suresh Sehgal had taken the car loan without knowledge and consent of deceased Vimal Prakash Joshi so much so that he had also sold the car thereby appropriating the sale proceed to himself; ix) the accused Suresh Sehgal sold the car and appropriated the sale proceeds to himself:
x) That when the deceased Vimal Prakash Joshi found that a Civil Suit has been instituted against him he approached the accused Suresh Sehgal who promised to repay the installments but he did not fulfill his promise and objections in the execution application filed by the deceased were dismissed on 15.12.2006.
xi) That the deceased Vimal Prakash Joshi committed suicide on 21.12.2006 at about 7:30p.m leaving two suicide notes Ex.PW 5/C and PW 5/D blaming accused Suresh Sehgal in forcing him to end his life.
THE LAW ON CONSPIRACY
36. In the case of State (N. C. T. of Delhi) v. Navjot Sandhu"2005 CRI. L. J. 3950 " the law on conspiracy was discussed in detail and their lordships extensively quoted the observations in In the case of State v. Nalini [1999 (5) SCC 253], where S.S.M. Quadri, J, after a survey of case law made the following pertinent observations (at paragraph 662) :
"In reaching the stage of meeting of minds, two or more persons share information about doing an ille- gal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or 38 all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowl- edge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such in- tention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pur- suance of the agreement the conspirators commit of- fences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
The theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. Those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-par- ticipant conspirators cannot be found guilty of the of- fence or offences committed by the other conspira- tors. There is hardly any scope for the application of the principle of agency in order to find the conspira- tors guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by ex-tension of a common law principle. (Para 12) A distinction was maintained between the con- spiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the conspiracy, a rule of evidence is enacted in S. 10 of Evidence Act based on the principle of agency. S. 10 of the Evidence Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condi- tion prescribed in the opening part of the section. Thus, the evidence which is in the nature of hearsay is made admissible on the principle that there is mutual 39 agency amongst the conspirators. Whether or not the conspirators will be liable for substantive offences oth- er than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, in the case of S. 34, IPC, the construc- tive liability for the crime is specifically fastened on each of those who participate in the crime in further- ance of the common intention. But S. 120-B does not convey that idea.
In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against preju- dice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evi- dence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. v. Falcone (109 F. 2d,579) was referred to: "This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders." At para- graph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspira- cy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows :
"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly con- sents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
37. It was further observed in the cited case that:
One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take 40 care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict."
38.In the light of the said proposition of law, coming to the present case, I am afraid there is no direct or circumstantial evidence on the record to suggest that there was any agreement or meeting of mind as between accused Suresh Sehgal and accused Shashi Bhushan to commit cheating upon the deceased. At the cost of repetition, the only evidence against the accused Shashi Bhushan is that he introduced the account of the deceased but it is doubtful if he was aware of the actual designs of the accused Suresh Sehgal in committing cheating upon the deceased. It is but obvious that the accused Shashi Bhushan had a business acquaintance with the accused Suresh Sehgal and it is probable that he bonafidely believed that he was introducing a rightful person for having a bank account at the behest of accused Suresh Sehgal. The thing about the wrong address of the account holder in the account opening form was just a casual or passive attitude. There is no evidence if the accused Shashi Bhushan derived any unlawful gain out of the whole transaction. There is no evidence that he had any role in the issuance of cheques and/or in the applying for the car loan. Similar is the case with accused Shiv Kumar Rohilla. Once it is shown that he had done his duties in the nature of verifying the address of the deceased for the purposes of procurement of loan, whether full proof or half heatedly, his culpability is ruled out. Again, in his case also there is no evidence of meeting of mind or an agreement to do an unlawful act or a lawful act in an unlawful manner. There is no evidence to suggest that he was conscious of the ulterior motives of the deceased. No evidence is led that he had any prior acquaintance with the accused Suresh Sehgal. 41 There is no evidence that he had any role to play in the forging of the signatures on the application form nor he had any role in the disposal of the car and appropriating the sale proceeds. If the contrary is assumed, then even the court witness Chander Bhushan Sharma played a dubious role not to speak of the irregularities committed by the Banks.
39. Therefore,I hold that the prosecution has not been able to prove the guilt of the accused Shashi Bhushan and Shiv Kumar Rohilla beyond reasonable doubt.
ABETMENT OF SUICIDE
40. Section 306 of the I.P.C. Provides as under:
Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
41. Section 107 of the I.P.C defines abetment as under:
Abetment of a thing - A person abets the doing of a thing, who First Instigates any person to do that thing; or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and and in order to the doing of that thing; or Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing.42
42. Mr. Rajesh Bhatia, Ld. Counsel for the accused Suresh Sehgal vehemently urged that there is no evidence that his client instigated the deceased to commit suicide; that no evidence is led that his client coxed, goaded, urged, provoked, incited or encouraged the deceased to commit suicide. He pointed out that the deceased Vimal Prakash Joshi was probably under mental turmoil since he was making repayment of house loan and was hard up with cash besides being involved in a criminal case in his Department. In his submissions he referred to decisions in Ramesh Chander Sibbal v. State, 2009 (111) DRJ 694; Sonu v. State, 167 (2010) DLT, 812; Sandy @ Ved Prakash v. State, 167 (2010) DLT 341; Ajit Singh v. State, 2009 (V) AD (Delhi) 123; Neeraj Gupta v. State, 132 (2006) DLT 137; Gangula Mohan Reddy v. State of Andhra Pradesh , AIR 2010 SC 327; Ashok Kumar v. State, 2009 (VII) AD (Delhi) 63 and Amalendu Paul @ Zhantu v. State of West Bengal, AIR 2010 SC 512.
43. Per Contra, Mr. K. M. Rana, Ld. counsel for the complainant relied on decision in Didigam Bhikshapathi v. State of Andhara Pradesh, 2008 (1) RCR, Criminal 209;
44. A deception played by a close trusted friend is very very painful. Accused Suresh Sehgal and the deceased were close 43 friends and deceased must have been under great mental and psychological trauma when he found that the accused had belied his trust and have brought about such consequences where he was on the verge of financial ruins. The objections were dismissed on 15.12.2006 and there was looming large the possibility of a kurki as commonly said in Hindi i.e., of the impending attachment of his households goods and the consequent loss of face in the family as well the society. If we step into his shoes we could visualize that he had reached a stage of hopelessness and the solution looked to be to end his life. The accused Suresh Sehgal was indeed responsible for bringing about such disdainful situation in the life of the deceased.
45. All the same, though the acts committed by the accused Suresh Sehgal and his overall conduct are really diabolic, it falls short of fixing his culpability u/s 306 of I.P.C. The answer to the aforesaid question can be found in the following observations of Supreme Court in the decision reported as Chitresh Kumar Chopra v. State, VI (2009) SLT 584=III (2009) DLT (Crl.) 1011 (SC)=IV (2009) CCR 1 (SC)=162 (2009) DLT (SC)=(2009) 11 SCALE 24:
Thus, to constitute "instigation" a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction"(See Concise Oxford English Dictionary); "to keep 44 irritating or annoying somebody until he reacts" (See Oxford Advanced Learner's Dictionary7th Edition). Similarly, "urge" means to advice or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person.
Therefore, a person who instigates another has to "goad" or "urge for ward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar's case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that : (I) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self protection of an escapism form intolerable self".
46. In the decision reported as Gangula Mohan Reddy v. 45 State of A. P. I (2010) CCR 143 (SC)=2010 (1) SCALE 1, the Supreme Court observed as under:
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."
47. Hence applying the said proposition of law to the present case, at the cost of repetition, though the accused Suresh Sehgal cannot escape the blame for deriving the deceased Vimal Prakash Joshi to commit suicide, mere harassment or bad conduct or belying the trust of the deceased would not constitute such facts which would bring out an intention to instigate the deceased Vimal Prakash Joshi to commit suicide. Therefore, I do not find that the prosecution has been able to prove that the accused is guilty of abatement of suicide by the deceased Vimal Prakash Joshi.
48. There is no evidence that the accused Suresh Sehgal had the intention to provoke, urge or encourage the deceased to 46 commit suicide while acting in the manner noted above. Further, the mere fact that the deceased in the suicide notes Ex.PW 5/A and Ex.PW 5/B blamed the accused Suresh Sehgal for his death is also not sufficient to hold the accused guilty of abetment to suicide. Reference can be had to decision in Sandy @ Ved Prakash v. State (Supra), wherein the decision was of gang raped and the prosecutrix came back to her house, consumed poison leaving behind a note that the accused persons were responsible for her death and it was held that the note itself was not sufficient to hold that the accused persons intended to instigate the deceased to commit suicide.
FINAL ORDER:
49. In view of the discussion above, particularly the reasons enumerated in Para No. 35 of this judgment, I have no hesitation in holding that the accused Suresh Sehgal committed forgery cheating. The Account Opening Form Ex. P1 was forged with the signatures of the deceased Vimal Prakash Joshi. Five security cheques each in the sum of Rs.10,670/ Ex.PW 11/B1 to B5 were also forged and the last nail in the case against him is the forgery of the Authority Letter Ex.P23 whereby the delivery of the Santro Car no. DL 2CW0629 was obtained. Much was argued by Mr. Rajesh Bhatia, Ld. Counsel for the accused Suresh Sehgal that the Santro car in 47 this case was not recovered. Well, that hardly makes a difference. The evidence on the record clearly indicates that the car was sold by the accused Suresh Sehgal and he appropriated the sale proceed to himself. The forgery was done with the object of cheating the deceased Vimal Prakash Joshi. The accused entertained dishonest intention as he used the forged documents as genuine thereby deriving unlawful gain for himself and causing wrongful loss to the deceased Vimal Prakash Joshi.
50. I, therefore, hold the accused Suresh Sehgal is held not guilty in so far as the offence u/s 306 of I.P.C. is concerned. However, he is held guilty of offences u/s 420/465/469/471 of IPC. Let he be heard on the Point of Sentence on 13.10.2010.
50. So far as accused persons namely Shiv Kumar Rohilla S/o Sh. Mam Chand and Shashi Bhushan S/o Sh. Dharam Pal Sharma are concerned, they are acquitted of all the charges framed against them. Their Personal Bond are cancelled and Sureties are Discharged.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA)
COURT TODAY i.e 11. 10.2010 ASJII / NORTH, DELHI
48