Delhi District Court
State vs . Balbir . on 4 March, 2020
State vs. Balbir .
IN THE COURT OF MS SHEFALI SHARMA : ACMM01 ( CENTRAL)
TIS HAZARI CCOURT : DELHI
State vs. Balbir
FIR NO. : 256/2009
U/S : 420/468/471 IPC
PS : Paharganj
JUDGMENT
a) Sl. No. of the case : 291666/16
b) Date of institution of the case : 4.6.2013
c) Date of commission of offence : In June 2008
d) Name of the complainant : Sh. Ramji Lal
e) Name & address of the : Balbir Singh
accused S/o Saguva
R/o E9 Hospital Qrs. JLN Marg
Rouse Avenue New Delhi.
f) Offence charged with : 420/471 IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 26.2.2020
i) Final order : Convicted.
j) Date of Judgment : 4.3.2020
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, the case of prosecution is that somewhere in June 2008 accused while working as Sweeper at LNJP Hospital New Delhi with employee code no. 222. forged a 'No Objection Certificate' purportedly issued on 10.6.2008 on behalf of the hospital Sh. Ram Ji Lal Dy Controller FIR No. 256/2009 PS Paharganj 1 of 16 State vs. Balbir .
of account LNJP bearing false signatures and submitted this 'No Objection Certificate' with Maa Jhandewalan Urban Thirft & Credit society having its office within the jurisdiction of PS Paharganj . Accused had submitted 'No Objection Certificate' and made a false representation that his department has no objection in case loan is granted to him and the society believing upon the inducement /false representation made by him, advanced a loan of Rs. 70,000/ to accused which accused failed to repay . It is further the case of prosecution that somewhere in June 2008 accused while workign as sweeper at LNJP hospital New Delhi with employee code no. 2223 accused used a forged 'No Objection Certificate' as genuine and submitted that said certificate with Maa Jhadewalan Urban Thrift & Credit Society for obtaining loan of Rs. 70,000/ . On these allegations, accused has been sent to face trial for offences punishable u/s 420/471 IPC.
2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C.
was filed on behalf of the IO and the accused were consequently summoned. A formal charge U/sec. 420/471 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, seven witnesses have been examined on behalf of the prosecution.
4. PW1 Ram Ji Lal deposed that on 23.6.2008 was Directotrate of Audit Delhi Secretarit as Audit officer and he had joined Lok Nayak Hospital as account officer, that on 1.7.2008 he was appointed as DDO of the FIR No. 256/2009 PS Paharganj 2 of 16 State vs. Balbir .
aforesaid hospital and one person from Maa Jhandewala Society came to him and he inquired him as to why the payment of Balbir regarding his loan has not been made, that he replied that person that had had never issued any NOC in favour of Balbir, that Balbir was working as sweeper / nursing orderly in the aforesaid hospital, that he had also replied that person to show the relevant documents of loan upon which the loan was issued to accused Balbir, that in January 2009 one person namely Mr Singhal from the society came to his office alongwtih all relevant documents regarding loan given to accused Balbir, that one copy of NOC issued in favour of Balbir was shown to him by Mr Singhal and he denied that no such NOC has even been issued by him in favour of accused , that Mr Singhal has also informed him that the aforesaid relevant documents alongwith NOC has already been sent to his office through speed post letter was found at our office, that he opened that letter and relevant documents alongwith NOC issued in favour of accused were found, that NOC was found to be fake and accused had prepared the said NOC after forging his signatures upon it, that he had informed this fact to Addl. Medical Superintendent and Mrs. S Batra Medical Superintendent , he had also given this information in writing to their senior officer for necessary action against accused balbir. He further deposed that on 15.10.2019 IO of this case came to his office who recorded his statement Ex PW 1/A , IO had also taken his specimen signatures Ex PW 1/B colly (running into five pages) bearing signature on each page marked as S1, S2 , S3 , S4 and S5 . The witness correctly identified accused and no objection certificate from judicial file which is marked X1. He was not cross examined by accused despite opportunity FIR No. 256/2009 PS Paharganj 3 of 16 State vs. Balbir .
given.
5. PW2 Sh. Manoj Kumar deposed that on 15.10.2009 he was posted as Asstt. Account Officer at LNJP hospital, that IO of this case came to him and demanded some relevant documents pertaining to complainant of this case namely Ram Ji Lal and he handed over him three attested copies of documents which are placed on judicial file, the original record of the office order no. F.6.(26) /88IAC Part IV /Audit 155258 dt. 23.6.2008 (running into one page) has been brought by Sh. Anil Kumar UDC Lok Nayak Jai Parkash Hospital, that the order 23.6.2008 is correctly identified the same, that the photocopy of the order dt. 23.6.2008 is Ex PW 2/A (OSR) , the original record letter no. F.1 (27) /ACII /LNH/2008/226063 dt. 1.7.2008 alongwith the original specimen signature of complainant Sh. Ram Ji Lal are correctly identified by the witness. The photocopy of order dt. 1.7.2008 the copy of specimen signature already on record which is compared with the original record produced by Sh. Anil Kumar UDC LNJP hospital is found on the same, that the photocopy of order dt. 1.7.2008 and copy of specimen signature is Ex PW 2/A , that the handed over the photocopy of these documents to the IO who had recorded his statement in this regard.
During his cross examination by ld defence counsel, he deposed that he had only handed over the these documents to the police, that he had heard about the case but he does not know anything personally about this case except the aforesaid contents.
FIR No. 256/2009 PS Paharganj 4 of 16
State vs. Balbir .
6. PW3 Devki Nandan deposed that he know Mr P.L Singhal who was secretary in Maa Jhandewala Corporative Urban Thrift and credit society at 145 Ist Floor DDA office complex cycle market , Jhandewala Extension Phase 1 New Delhi till his death in 2012 as per his information, that he was also employee in the abovesaid credit society and he had seen the signature on many occasions and he can identify his signatures if shown to him, that the documents written on behalf of Mr P.L Singhal secretary vide reference number MJCOUT&CSL/1331 /2009 /2787 dt. 24.10.2009 Ex PW 3/A , that he know accused in the present case had taken some loan and Mr P.L Singhal had written Ex PW 3/A to the police official on their demand of documents which were supplied with this letter, that since the accused was member of credit society in which he know that the accused , that in the present case, the credit society had sanctioned the loan to the accused on submitting of NOC from his employer which was found to be forged later as the accused was not returning the loan amount as per schedule paying of installment and the present case is related to this matter , that photocopy of NOC which was submitted by accused at the time of applying of loan is mark 3/1.
During his cross examination by ld defence counsel, he deposed that he personally does not know the guarantor for the loan amount given to accused Balbir by his credit society. That he had not personal knowledge about the payment of installment by accused if deducted from his salary every month, that he cannot say that all the due amount to be paid by the accused was already deducted from his salary at the time of making complaint against the accused. He further deposed that it is correct that FIR No. 256/2009 PS Paharganj 5 of 16 State vs. Balbir .
Bhim Singh is the member of their society and he had not any personal knowledge about Bhim Singh if he had stood guarantor against the loan to the accused, that he had not knowledge if the credit society has recovered the amount from two guarantors namely Sat Parkash and Mahipal who were also employees of LNJP Hospital and stood guarantor for Balbir against the loan involve in the present case. He further deposed that he cannot say Bhim Singh was also working in the same office where the accused Balbir used to work. He denied the suggestion that Bhim Singh had submitted the NOC for the accused as he was working in the same office of the complainant Ramji Lal. He further denied the suggestion that he had no personal knowledge about the amount of the loan given to the accused or he was deposing falsely.
7. PW4 ASI Suresh Kumar was the duty officer. He deposed that on 15.10.2009 from 9:00am to 5:00pm at around 3:20 pm SI Rupesh Khatri handed over him one registration of FIR, that on the basis of same he registered FIR Ex PW 4/A , that he also made endorement on rukka Ex PW 4/B , that he had issued certificate 65 B Indian Evidence Act Ex PW 4/C . He was not cross examined by accused despite opportunity given.
8. PW5 HC Ravinder Singh deposed that on 20.10.2010 he handed over one sealed envelope vide RC no. 86/21 by MHC(M) PS Paharganj for taking it to the FSL Rohini, that he went to FSL with said sealed envelope and deposited the same vide file no. FSL2010/D 4628 dt. 20.10.2010 at FSL. He was not cross examined by accused despite opportunity given.
FIR No. 256/2009 PS Paharganj 6 of 16
State vs. Balbir .
9. PW 6 Inspector Rupesh Khatri deposed that on 15.10.2009 he went to Lok Nayak Hospital for the inquiry of the complaint, that he met with the victim Ram Ji Lal and recorded his statement Ex PW 1/A and he came back to the PS and discussed the same with the SHO concerned and he prepared rukka Ex PW 4/B and FIR was registered on the basis of same, that he again went to the hospital and he obtained the specimen signatures of the complainant over there and recorded supplementary statement. He further deposed that he also obtained two documents of drawing and disbursing officer Ex PW 2/B and also obtained one transfer order of complaint Ex PW 2/A , that he recorded the statement of Assistant Account officer namely Manoj Kumar, that he obtained documents pertaining to the loan drawn by Balbir for Maa Jhandewala Cooperative Urban Thrift and Credit society Ltd through his secretary P.L Singhal which is Ex PW 3/A , that he also seized NOC original submitted by Balbir to the society vide seizure memo Ex PW 6/A and recorded statement of P.L Singhal , that he sent the specimen signature and questioned documents to the FSL for examination through Ct Ravinder vide RC no. 36/21 dt. 20.10.2010 Ex PW 6/B and acknowledgment receipt Ex PW 6/C , that he recorded statement of witnesses , that he got transferred from the PS , case file was handed over to the MHC(R) and challan was filed by second IO.
During his cross examination by ld defence counsel , he did not remember whether he asked from accused about his qualification, that he cannot say whether accused can read and write English, that he examined one surety namely Bheem and Karamvir, that he did not examine Satya FIR No. 256/2009 PS Paharganj 7 of 16 State vs. Balbir .
Parkash and Mahipal, that he cannot say who fill the loan application form. Balbir had caused to be filled the NOC from someone but he cannot say from whom he caused to be filled the same, that he did not seize envelope of speed post of forgery documents from society. That he obtained the posting order of complainant ,however he did not investigate about the posting rules, that he cannot say whether posting rules are confidential. Stamp mentioned on the NOC was not recovered, that as per the FSL report, that signature was not related to complainant Ramji Lal ,however he cannot say whether these signatures had done by accused Balbir or he caused to be done from someone else or he was deposing falsely.
10. PW7 SI Jagroop deposed that on 15.3.2012 he received file for further investigation of the present case and he inquired about the result of FSL, that he obtained the NOC of loan obtained by the accused Maa Jhandewalwa and Thrift Society , he prepared the challan and filed in the court. He was not cross examined by accused despite opportunity given.
11. On conclusion of PE , Statement of accused u/s 313 CrPC was recorded wherein all the incriminating evidence appearing against him was put . Accused stated that he has been falsely implicated. Accused chose not to lead any defence evidence.
12. I have heard the rival submissions and carefully perused the record.
FIR No. 256/2009 PS Paharganj 8 of 16
State vs. Balbir .
13. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
14. At this stage, it is relevant to case law "International Advance Research Center for Power Metallurgy and New Material (Arci.) and others Vs. Nimra Cerglass Technics (P) Ltd. & Anr.", 2015 XAD (S.C.) 129 which reads as follows: "13..... The essential ingredient to attract Section 420 IPC are (I) cheating; (I) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducements. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.."
11.Distinction between breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement. If it is establish that the intention of the accused was dishonest at the very time when he made a promise and entered into transaction with the complainant to part with the money, then the liability is criminal and accused is guilty of offence u/s. 420 IPC, however if it is FIR No. 256/2009 PS Paharganj 9 of 16 State vs. Balbir .
established that the representation made by the accused is merely complied with than it is merely merely breach of contract.
15. It has been held in landmark judgment of Hon'ble Supreme Court of India Mohd Ibrahim and ors. Vs State of Bihar and Anr , AIR SC (SUPP ) 347 ::
"..........The essential ingredients of the offence of "cheating"
are as follows : (1) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for th purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration............."
16. Section 471 IPC provides punishment for a person who fraudulently or dishonestly uses as genuine any document or any electronic FIR No. 256/2009 PS Paharganj 10 of 16 State vs. Balbir .
record which he knows or has reason to believe to be a forged document. It further provides that, in case, it is proved that a person has knowingly used a forged document as genuine, then, he shall be punished in the same manner as if he had forged such document. Thus, as required under most of the offences punishable under Indian Penal Code, there are two essential ingredients to commit the offence punishable under Section 471 IPC. The first ingredient is the actus part which means that a person must have used a forged document as genuine and he must have done so fraudulently or dishonestly. The second ingredient, which constitutes mens rea, is that the person using the forged document as genuine should either know or has reasons to believe that the document is forged. It is only when these two ingredients have been proved that it can be concluded that offence under Section 471 IPC has been committed.
17. In the present case, the testimony of PW1 Sh. Ramji Lal is cogent and convincing against the present accused regarding the alleged offence. In my considered view, PW1 is a truthful witness and, therefore, his testimony inspires confidence of this Court and can be acted upon. It has been observed by the Hon'ble Apex Court in the matter of Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19 "....Even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that FIR No. 256/2009 PS Paharganj 11 of 16 State vs. Balbir .
witnesses have to be weighed and not counted since quality matters.
18. From the testimony of PW 1 Sh. Ram Ji Lal, it has been clearly established that on 1.7.2008 he was appointed as DDO at Lok Nayak Hospital and one person from Maa Jhandewala Society came and enquired regarding non payment of loan taken by the accused Balbir . He replied that one NOC by his name was purported to be issued in favour of the accused and the said witness categorically deposed that the said NOC Ex PW 6/A is forged and fabricated document since his signatures on the said document had been forged as he had never issued any NOC in favour of any of accused. He further deposed that he informed this fact to Addl. Medical Superintendent (Admn) Mrs. S. Batra Medical. The Medical Superintendent had given this information to their senior officer for taking necessary action against the accused as he had fabricated the NOC and forged the signatures and induced Maa Jhandewala Society to disburse loan to him. The said witness despite opportunity given had not been cross examined by the accused. Thus his testimony remains unrebutted and unimpeached.
19. Further PW 3 categorically proved "the original record of the office order no. F.6.(26) /88IAC Part IV /Audit 155258 dt. 23.6.2008 (running into one page) had been brought by Sh. Anil Kumar UDC Lok Nayak Jai Parkash Hospital, that the order 23.6.2008 is correctly identified the same, that the photocopy of the order dt. 23.6.2008 is Ex PW 2/A (OSR) , the original record letter no. F.1 (27) /ACII /LNH/2008/226063 dt. 1.7.2008 alongwith the original specimen signature of complainant Sh. Ram Ji Lal FIR No. 256/2009 PS Paharganj 12 of 16 State vs. Balbir .
are correctly identified by the witness. The photocopy of order dt. 1.7.2008 the copy of specimen signature already on record which is compared with the original record produced by Sh. Anil Kumar UDC LNJP hospital is found on the same, that the photocopy of order dt. 1.7.2008 and copy of specimen signature is Ex PW 2/A". Thus, factum of taking loan by the accused gets duly proved by the testimony of PW1 as well as PW3 and they corroborate the testimony of the IO who entered into witness box as PW6.
20. PW6 Inspector Rupesh Khatri proved the loan document Ex PW 3/A which goes to show that document pertaining to loan drawn by accused Balbir from Maa Jhandewala Copoperative Urban Thrift and Credit Society Ltd through his Secretary P.L Singhal had been disbursed . During the arguments in fact the accused could not produce any cogent defence to rebutt that the loan had not been disbursed to him. The admission/membership form dt. 16.5.2008 also bears the photographs as well as signatures on the affidavit and even ID card , electricity bill, pay slip which are personal document of the accused had been annexed, which goes to show that accused had taken the loan from said Maa Jhandewala Society.
21. PW 6 further deposed that he had obtained some documents pertaining to loan and sent to FSL for examination . FSL report clearly shows that questioned signatures on the NOC dt. 10.6.2018 were found different from the model and design of the signatures of Sh. Ramji Lal FIR No. 256/2009 PS Paharganj 13 of 16 State vs. Balbir .
marked S1 to S5. Thus, the said report is corroborates testimony of PW 1 Ramji Lal who categorically deposed that he had only signed on NOC and was not cross examined by the accused despite due opportunity. The burden of proving that the said questioned signatures of Ram ji Lal had been forged was duly discharged by the prosecution. As stated above the NOC had been deposited alongwith loan documents which also includes personal documents i.e Voter ID card, salary slip which are ideally to be possession of accused himself. Although the other PW 3 and PW 6 have categorically deposed that accused had obtained the loan by furnishing the said NOC .
22. Ld. Counsel of the accused has vehemently argued that an envelope containing the loan documents was not seized by the IO but the same is not material evidence, and if not seized could not be detrimental to the case of the prosecution since the loan document is already proved as Ex PW 3/A . Further ld counsel for accused had argued that the stamp paper upon which the membership of accused had executed is forged . The onus lies upon the accused to prove the same but not an iota oral or documentary evidence has been adduced in this regard.
23. Ld defence counsel tried to contend that there are material contradictions in the testimonies of the prosecution witnesses which rendered them to unbelievable and untrustworthy. I have carefully gone through the testimonies of the prosecution witnesses but have not been able to find any material contradiction in their testimonies. Their FIR No. 256/2009 PS Paharganj 14 of 16 State vs. Balbir .
testimonies have been consistent and remained unshaken despite the lengthy crossexamination. Although, I conclude that no material contradiction has emerged in the testimony of any prosecution witness but at this stage I can discuss the well settled proposition of law in this regard. Only material contradiction affect the case of the prosecution and not the normal discrepancies. In State of Rajasthan Vs. Kalki (1981) 2 SCC 752 the Hon'ble Supreme Court was pleased to held that "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancies may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so". It is clear from the record that no material discrepancy has come on the record which can affect the case of the prosecution. I accordingly reject the aforesaid contention of the Ld. Counsel for the accused.
24. The testimony of other prosecution witnesses is in consonance with prosecution case and therefore accused Balbir deserves to be convicted in the instant case for offences u/s 420/471 IPC.
25. To summarize, accused Balbir stands convicted for FIR No. 256/2009 PS Paharganj 15 of 16 State vs. Balbir .
commission of offences u/s 420/471 IPC. Let the parties be heard on point of sentence. Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2020.03.06 15:34:05 +0530 Announced in open Court (SHEFALI SHARMA) on 4.3.2020 ACMM01, Central District, Tis Hazari Courts, Delhi It is certified that this judgement contains sixteen (16) pages and each page bears my signatures.
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