Delhi District Court
State vs Piyush Aggarwal on 9 July, 2024
State Vs. Piyush Aggarwal
FIR No. 625/2006
PS Shalimar Bagh
Cr. Case No. 538358/2016
IN COURT OF JUDICIAL MAGISTRATE FIRST CLASS-07,
NORTH-WEST, DISTRICT ROHINI COURTS, DELHI.
Presided over by: Ms. Ritika Kansal, DJS.
Cr. Case No. : 538358/2016
Case ID No. : DLNW02-000711-2008
FIR no. : 625/2006
Police Station : Shalimar Bagh
Section(s) : 468/471 of Indian Penal Code, 1860
In The Matter of :
STATE
Vs
PIYUSH AGGARWAL
S/o Late Sh. R.K. Aggarwal
R/o House No. 157E, Pkt-IV,
Mayur Vihar, Phase-1,
Delhi, ...Accused
1. Name of Complainant HC Dharampal
2. Name of Accused Piyush Aggarwal
3. Offence complained of Section 468/471 IPC
4. Date of Incident Unknown
5. Date of Institution of case 26.07.2008
6. Plea of Accused Not Guilty
7. Date of Reserving Order 01.11.2023
8. Date of Pronouncement 09.07.2024
9. Final Order Conviction
Page 1 of 42
State Vs. Piyush Aggarwal
FIR No. 625/2006
PS Shalimar Bagh
Cr. Case No. 538358/2016
FACTUAL BACKGROUND:
1. Pithily put, accused has been alleged of committing forgery by making alteration in a bill/invoice no. 304 with intention to cheat Delhi Police, North- West (N-W) and to secure financial benefit for himself.
2. According to prosecution's case, on 31.07.2006, Sub-Inspector (SI) Ram Chander contacted a company to repair a fax machine in the Assistant Commissioner of Police (ACP)'s Office. A company representative inspected the machine, issued a receipt and took away the machine for repairs. The machine was returned on 03.08.2006 after repair and, a receipt is again issued along-with an invoice no. 304 for Rs. 350/-, labelled as "repair & service charges". Head Constable (HC) Dharampal, who is deputed at ACP office, made a xerox copy of the said invoice and hand over the original invoice and its carbon copy to SI Ram Chander. SI Ram Chander then got both the original invoice and the carbon copy verified from the ACP, Rohini and returned the same to the company's representative. On 11.08.2006, accused namely Piyush visited the Deputy Commissioner of Police (DCP) office, N-W seeking payment and submits the invoice along-with its carbon copy. The invoice was flagged for lacking proper verification and was sent back to the ACP's office. At the ACP's office, HC Dharampal noticed discrepancies between the xerox copy of the invoice and the submitted invoice. Upon comparison, he found that the original invoice has been altered to include an additional charge of Rs. 5,000/-. The discrepancy was reported to higher police officials, leading to registration of FIR against the accused. During investigation, accused was arrested, interrogated and his specimen handwriting and initials were obtained. The allegedly forged bill, its carbon copy, the xerox copy along-with samples are sent to Forensic Sciences Laboratory (FSL). The FSL report concluded that the handwriting and initials on the alleged forged bill matched those of the accused and indicated that additions Page 2 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 were made after the initial preparation of bill. On culmination of investigation, charge-sheet under section 173 of Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C".) was filed against accused u/sections 468/471 of Indian Penal Code, 1860 (hereinafter referred to as "IPC").
3. The allegations have been refuted by the accused who is pleading innocence and has alleged that he has been falsely implicated in the present case to avoid payment of his pending bills. It has been contended by the defence that the initial invoice no. 304 was for Rs. 5350/- and not for Rs. 350/-.
AT THE STAGE OF TRIAL:
4. Accused was summoned to face trial. In compliance of section 207 of Cr.P.C., he was supplied with a copy of the charge-sheet. On the basis of material on record, vide order dt. 31.07.2009, charges were framed against the accused for forgery and thereafter using forged the invoice no.304 with intention to cheat the police department i.e. for offences punishable u/sections 468/471 of IPC. Accused pleaded his innocence and the trial commenced.
5. Before trial, the prosecution cited total 11 witnesses. However, only 9 of such witnesses have been examined during trial. PW SI Ram Chander was dropped from the list of witnesses vide order dt. 27/08/2019 considering his medical condition. The prosecution evidence was closed vide order dt. 01.03.2023. The witnesses examined during trial and documents relied upon by prosecution to bring home the guilt of the accused as followings:
ORAL EVIDENCE PW-1 :- ASI Surender Pal (Duty Officer) Page 3 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 PW-2 :- HC Dharampal (Complainant.) PW-3 :- Ct. Raminder (Case Property Carrier to FSL) PW-4 :- Ct. Vishal (Rukka Carrier & Arrest Witness) PW-5 :- Deepa Verma, Deputy Director, FSL (Expert Witness) PW-6 :- Inspector Yashpal (Second Investigating Officer) PW-7 :- Retd. Inspector Gulab Chand Sharma (then HAG, DCP, N-W) PW-8 :- Satender Dhull (Third Investigating Officer) PW-9 :- Inspector Anil Kumar Pandey (First Investigating Officer) DOCUMENTARY EVIDENCE
1. Ex. PW-1/A (OSR) Copy of FIR
2. Ex. PW-1/B(OSR) Endorsement on Rukka
3. Ex. PW-1/C Complaint/Tehrir
4. Ex. PW-2/A Original Submitted Bill No. 304 (alleged forged bill)
5. Mark "A" Carbon Copy of Ex.PW2/A
6. Mark both "B" & Xerox Copy of Bill No. 304 (undated and unverified) "Z"
7. Ex. PW-1/D Arrest Memo of Accused
8. Ex. PW-1/E Personal Search Memo of Accused
9. Ex. PW-1/F Disclosure of Accused
10. Ex. PW-1/G-L Specimen Handwriting of Accused
11. Ex. PW-1/M-O Specimen Initial of Accused
12. Mark "X" Copy of Receipt dt. 31.07.2006
13. Ex. PW-2/D1 Copy of Receipt dt. 03.08.2006
14. Ex. PW-5/A FSL Report dt. 16.05.2008
15. Ex. PW-5/B FSL Report dt. 14.07.2008 Page 4 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016
16. Ex. PW-7/A Note No. 72108/GENL. (I).NWD dt. 11.08.2006 (hereinafter referred to as "Dak from DCP office")
17. Ex. PW-9/A Reference Letter No. 154 dt. 19.08.2006 (hereinafter also referred to as "Ref. Letter") DOCUMENS PRODUCED BY ACCUSED
1. Ex. PW-2/D1(OSR) Copy of Invoice No. 1491 (undated)
2. Ex. PW-2/D2(OSR) Copy of Invoice No. 1345.
6. The accused had been given an opportunity to explain the incriminating facts and circumstances against him in the present case and his statement u/section 313 Cr.P.C. was recorded separately. During his statement, he acknowledged that the invoice in question was prepared by him in his own handwriting but refuted the allegations of forgery by asserting that original invoice no. 304 was of Rs. 5350/-. He was given opportunity to lead evidence, but he had chosen to not adduce positive evidence in his favour. Accordingly, the defence evidence was closed vide order dt. 24.04.2023. Final arguments were addressed by Ld. APP for the state and by Sh. Dinesh Chaudhary, Ld. Counsel for the accused. Written submission were also filed on behalf of the accused.
TESTIMONIES OF WITNESSES:
7. Before proceeding further, it would be apt to briefly glance through testimonies of prosecution witnesses.
8. ASI Surinder Pal has been examined as PW-1. He is a formal witness, posted as duty officer, received rukka from SI Anil Kumar on 23.08.06 through Ct. Vishal and registered the FIR in question. The witness was not cross-
examined by accused despite the opportunity.
Page 5 of 42State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016
9. Head Constable Dharam Pal has been examined as PW-2. He is the star witness of prosecution. He testified that he was posted at ACP's office, Sub- Division, Rohini as Head Constable and was working at diary dispatch section. He recounted that SI Ram Chander made a call from his number 26328528 to Toshiba Fax Machine M/s HCL Infinet Ltd., located at 261, Okhla Industrial Estate, Phase 3, New Delhi, regarding a malfunctioning fax machine. On 31/07/2006, company technicians arrived to repair the fax machine. They took the machine for repair. One slip was handed over to PW-2, and he was asked to sign on that slip. On 03.08.2006, the company technicians returned to ACP's office, re-installed the fax machine and issued another slip, on which PW-2 signed. They also handed over a bill, which was already prepared by them in the name of DCP Northwest, Ashok Vihar, Delhi. On the said bill, repair and service charges of ₹350 was mentioned. A revenue ticket was also pasted on the bill. PW- 2 prepared a xerox copy of the bill Marked as "B" before it was handed over to SI Ram Chander for ACP's verification. After ACP's verification, the bill was returned to the technician. On 11.08.2006, a parcel was received by post No. 72108/Gen. (I) NWD dt. 11.08.2006, containing two pages of bill/ invoice no. 304 dated 04/07/2006 (i.e. an original and its carbon copy) which had already been verified by the ACP's office. It raised suspicion in PW-2's mind and prompted him to speak to SI Ram Chander. SI Ram Chander took out xerox copy of bill/invoice no. 304 from records and compared it with the submitted bill no. 304 (received from the DCP's office, wherein Rs. 5350/- was mentioned as total amount). In the xerox copy of the bill/invoice no. 304, amount was mentioned i.e. Rs. 350 only. In the bill/invoice received from the DCP's office, certain words were added i.e. "replacement and fresh KDI", "change of bush" for "Rs. ₹4700"
and "₹300" respectively, bringing the total expenditure to Rs. 5350/- including the initially mentioned Rs. 350/-. The matter was brought to the knowledge of the ACP, indicating that the additions were made in the invoice to cheat the police Page 6 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 department. On 23/08/2006, PW-2 was called at Pitampura Police-Post (PP), wherein his statement was recorded. On the same day, upon instructions of Investigating Officer (IO), Piyush Agarwal, the proprietor of P & L Services, arrived at the PP along with his father. The accused confessed to his guilt. Accused was arrested, personally searched and his disclosure statement was recorded. Accused's specimen signature and handwriting was taken. These proceedings were witnessed by PW-2 and he also signed as attesting witness. PW- 2 identified the accused during trial.
10. PW-2 underwent extensive cross-examination on four separate occasions. During his cross-examination, he was repeatedly questioned on same points. For clarity, his testimony has been organised into various sections:
10.1. Post and tenure: PW-2 testified that he was sole person was posted at diary dispatch seat in the ACP's office. He was deputed there in May 2006.
10.2. Unfamiliarity with the Accused: PW-2 stated that he had not seen or heard of the accused prior to 23.08.2006. He was unaware whether accused was proprietor of M/s P & L Services, who ran the said firm, or whether said firm provided services to the Delhi police offices including the ACP and DCP offices, North-West prior to 31.07.2006. He was unaware of whether, after receiving the alleged forged bill on 11.08.2006, accused was called at ACP's office or number of the times accused had visited their office prior to 31.07.2006. When questioned on the same point for the fourth time, PW-2 admitted to the suggestion that accused and his employees used to visit their office prior to 31.07.2006 for purpose of repairing the fax Machine, computer etc. To impeach his credibility, defence had produced two documents in form of copies of two invoices.
Photocopy of one invoice no. 1491 undated was exhibited as PW2/D1(OSR). When put to PW-2, he admitted his signatures on the same. Photocopy of invoice no. 1345 dt. 16.06.2005 was exhibited PW2/D2(OSR) but PW-2 stated that he Page 7 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 has no knowledge of the said invoice. The prosecution has raised objection with respect to mode of proof of these two documents. PW-2 was repeatedly asked about the name of the company contacted and name of company represented by the mechanics. He testified that he didn't know the person to whom SI Ram Chander had called or, whether the mechanics were from HCL or other company, or whether call was made to HCL or P & L Services or whether the number 011- 26328528 belongs to SI Ram Chander or HCL. He stated that since the receipt was from P & L Services, the mechanics likely belonged to that firm. He failed to disclose exact date and time of call but stated that it was made in his presence. He testified that the original bill no. 304 was handed over to him by two mechanics.
10.3. Repair of Machine and Documentation: PW-2 disclosed that the fax machine was handed over to the mechanics on 31.07.2006 at about 11:30 a.m., and that they had returned with the repaired machine on 03.08.2006 at about 01:30 p.m. PW-2 stated that the mechanics had given a receipt at the time of taking the machine, which he received but didn't not sign. PW-2 identified the receipt from record which was marked as "X". He didn't make any entry regarding handing over of the machine. The machine was not checked in his presence and SI Ram Chander had informed the mechanic about the defect in the fax machine. The fax machine after repair was handed over to PW-2. At the time of its re-installation, the fax machine was checked in his presence and in presence of SI Ram Chander in the ACP's office and it was found to be working properly. PW-2 admitted that at the time of handing over of fax machine to him after repairs, another receipt/Ex.PW-2/D1 was issued to him. PW-2 identified his signatures on the said receipt. The PW-2 was questioned about word "yes" mentioned in the column "spare used" on the receipt Ex.PW-2/D1, which he was present but also stated that it was crossed out when he saw it for the first time. He denied suggestion that the word "yes" was intentionally crossed by him or his Page 8 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 office to falsely implicate the accused in the present matter. He couldn't confirm whether any spare parts were used to repair the fax machine and leading to use of the word "yes" on the receipt/Ex.PW-2/D1. He testified further that the said receipt was returned under his signatures to the mechanics after being satisfied with the working of the fax machine. He testified that he had not called any employee from P & L Services to verify the factum of replacement of spare parts in the fax machine and he was not aware if any spare parts were replaced or not or if such verification was conducted ACP's office. He further admitted that as per record, no such verification has been done by their office. He denied the suggestion that lack of verification was due to replacement of spare parts.
10.4. Receipt of Original Bill no. 304 and its handling: PW-2 testified that the original bill no. 304 was handed over to him by two mechanics and he was not aware of who prepared the bill no. 304. He admitted the suggestion that as per portion of his own statement (i.e. point X1 to X2 in Ex.PW-1/C), bill no. 304 was prepared at his office at the time of handing over the fax machine to him. He denied that the words "replacement of fuser KDI", "change of Bush", "Above parts change in fax laser fax machine installed at ACP/Sub div Rohini Delhi"
were written at the same time as the words "repair and service charges". At one place, he admitted that the contents of the Ex.PW2/A appeared to have been written by same person with same pen, but when questioned again, he couldn't confirm this with certainty. He further testified that the bill was handed over to him in presence of SI Ram Chander. He denied the suggestion that the bill was raised on 03.08.20006 and was submitted in ACP's office on 04.08.2006. After verification from ACP's office, SI Ram Chander informed him that the bill had been returned but he (PW-2) was unaware to whom it was returned. No entry was made by him at the time of returning the bill to employees of P & L Services and no receipt was taken from them. He agreed with suggestion that no revenue stamp is required on a bill, if the amount it is less than ₹500.Page 9 of 42
State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 10.5. Preparation of Xerox Copy and its file: Ex.PW2/A was handed over to PW- 2 by an employee of P & L Services when returning the repaired fax machine. He handed it to SI Ram Chander for verification by the ACP. PW-2 retained a xerox copy, marked "Z," as he was newly deputed at the ACP's office and had received such a bill for the first time. He denied the suggestion that the xerox copy was prepared by him after concealing the contents of Ex.PW2/A with a paper. He testified that he did not bring any file in which he kept the photocopy of the bill and could not produce such a file. He denied not maintaining any such file. He admitted that no separate file was maintained at the ACP's office for retaining photocopies of bills, but later testified that a separate file was maintained for this purpose, although he had not brought it to court. He stated that he used to keep photos of bills received after 03.08.2006He testified that did not tell anyone in the office about keeping the photocopy of bill no. 304 but volunteered to add that SI Ram Chander had knowledge about it.
10.6. No Objections to Bill and DD entries: PW-2 initially stated that he didn't raise any objection to the bill no. 304 being undated and having gaps in the account column where was mentioned alphabetically but immediately corrected himself and stated that he had raised objection about bill no. 304 being undated. The Ex.PW2/A was received along-with copy on 11.08.2006 from DCP's office. He admitted that a letter Ex. PW7/A was received from DCP office, but denied that same was received on 17.08.2006. The said bill along-with other office Dak (correspondence) was handed over to SI Ram Chander. No entry was made at that time but at later stage on 17.08.2006 after the Dak was placed before the ACP. He further testified that entry is no longer available as same has been destroyed. The bill was returned for purpose of verification. From 11.08.2006 till 17.08.2006, no objection was raised in his presence by any official regarding the bill no. 304. He admitted that he had not filed any complaint in writing about suspected manipulation of bill no. 304, but verbally informed SI Ram Chander.Page 10 of 42
State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 10.7. Denial of Malicious Intent: PW-2 received a call from Pitampura PP at around 05:00 p.m. When he arrived at PP, IO/SI Anil was alone. Tehrir was written by SI Anil Pandey at about 06:00-06:30 p.m. on 23.08.2006 at PP. Accused had appeared at around 08:00 p.m. in the night accompanied by a person. PW-2 remained at the PP till 10 p.m. and Ct. Vishal was also present. He denied suggestions that accused wasn't interrogated in his presence or that his signatures were obtained on blank papers or that whether the accused has been falsely implicated with his help due to his pending bills, and frequent visits to the office to demand payments.
11. Constable Ravinder has been examined as PW-3. He is a formal witness. He testified that he was posted as constable at PS Shalimar Bagh on 14/5/2007. He had taken some exhibit/documents in a sealed envelope from the MHC(M). He went to the FSL, Rohini with the exhibits and the Road Certificate No. 224/21/07 and deposited the exhibit and documents. He returned to the police station along with the acknowledgement, and copy of Road Certificate and handed over the same to the MHC(M) PS Shalimar Bagh. This witness was not cross-examined by the defence despite opportunity.
12. SI Vishal Chaudhary has been examined as PW-4. He is the rukka carrier and arrest witness. He testified that on 23/8/2006, while he was on patrolling, he was called by the IO/SI Anil Pandey to the Police Post, Pitampura. Rukka was handed over to him for registration of FIR. He went to the PS Shalimar Bagh and after the registration of the FIR, he returned to PP and handed over the original rukka and the copy of the FIR to the IO/SI Anil. After sometime accused, Piyush Aggarwal had come to the PP. Accused was interrogated, arrest and personally searched in his presence. The disclosure statement of the accused was recorded in his presence. The sample handwriting and signatures of accused were also obtained on nine blank papers. HC Dharampal was also present and his statement Page 11 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 was also recorded. Thereafter the accused was taken to the police station and was kept in lock-up and statement of witness was recorded.
13. During his cross-examination, PW-4 was asked to disclose time of his arrival and departure at the PP, Pitampura and PS Shalimar Bagh. He testified that he received call from the IO/SI Anil at around 5:30 PM. At that time, he was 2-3 km away from PP Pitampura. He reached the PP at around 6:00 p.m. When he reached besides IO and he himself, 4-5 police officials were also present. No public person was present and accused was not present, at that time. Rukka was not written in his presence and therefore he couldn't confirm who wrote it. HC Dharampal was present. PW-4 reached at Police Station Shalimar Bagh along with the rukka at 7:00 PM. He remained there for around one hour and then returned with the rukka and the copy of FIR and reached at PP Pitampura at around 08:15-08:30 p.m. the accused arrived shortly thereafter, within 4-5 minutes accompanied by another person, identified as his father. Accused was interrogated for around 40/50 minutes. Accused was searched by the IO and not by him. He couldn't recall who had recorded the disclosure statement of the accused or who filled personal search memo. Disclosure statement was likely written at around 09:00-09:30 p.m. PW-4 denied suggestions that the signatures of accused were obtained on blank papers, or that disclosure statement of accused and his sample signature/handwriting were not recorded/obtained in his presence. He testified that the specimen from the accused were obtained in his presence at around 09:30 p.m., but he was not present during production of accused before the court. He testified that he is unaware if accused provided repair services for computer/fax machine to the ACP's office or Shalimar Bagh Police Station and, he had not seen the accused any time prior to 23/08/2006. He denied suggestions that accused was falsely implicated.Page 12 of 42
State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016
14. Ms. Deepa Verma, Deputy Director, FSL, Rohini has been examined as PW-5. She is handwriting expert. She compared the specimen handwriting and initials of accused (i.e. S1 to S-9) with the questioned document i.e. (PW2/A also marked X by FSL). The documents i.e. Ex.PW2/A, its carbon copy (Marked as "A" and also marked as "X1/2" by FSL) and xerox copy (marked as "Z" & "B"
also marked as "X1/1" by FSL) were also examined for any additions or alterations allegedly made after verification of the bill no. 304 by the ACP. She deposed about two reports prepared by her i.e. exhibited as Ex.PW-5/A and exhibited as Ex. PW-5/B. He testified that the sample handwriting in documents marked S1 to S6 tallied with handwriting on the questioned document. She further testified that the initials on the questioned document (separately marked Q2 and Q3) agreed with model and design of specimen initial of accused in documents marked S7 to S-9. She further deposed that the printed matter and the existing writings of xerox Copy i.e. X1/1 were superimposing in parts with corresponding writings and printed material of the original bill (Ex.PW2/A/Marked X).
15. During her cross-examination, PW-5 testified that on her examination revealed that writings marked Q1 on original Bill (i.e. Ex.PW2/A or Marked X by FSL) and S1 to S6 were written by the same person. Regarding the initials/short signatures marked as Q2 and Q3, she testified that it is not possible to have confirmed opinion regarding authorship. She further stated that it is not possible to express definite opinion whether X1 and X1/1 were prepared by one and the same document or otherwise. She also stated that there were some additional writings on document marked X (i.e. Ex.PW-2/A) and document marked X1/2 (carbon copy) in comparison to document marked X1/1. (xerox copy). She clarified that she had not expressed opinion about authorship of writings on xerox copy and that she can not state whether all the writings on alleged forged bill no. 304 had been written at the same time.
Page 13 of 42State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016
16. Inspector Yashpal has been examined as PW-6. He is a formal witness. He has sent certain documents regarding the present case to the FSL through Constable Raminder and thereafter he got transferred from the PS Shalimar Bagh and deposited the file with the MHC(R). Despite opportunity, the witness was not cross-examined by the defence.
17. Retired Inspector Gulab Chand has been examined as PW-7. He is important prosecution witness. He testified that in August 2006, he was posted as (HAG) Head Assistant General, Branch in the DCP's office, North-West, Ashok Vihar. As part of his job, he was required to supervise the bills raised by the different persons and to forward them to the concerned departments/branch after making a note on them. He confirmed that the accused Piyush used to repair fax machines for petty malfunctions and he was not annual maintenance contractor. After repairing fax machines, accused used to raise bills and send them to PW-7 for further proceedings, either directly or through concerned branch. He testified that the bill no. 304 dt. 04.07.2006 for ₹5350 i.e. Ex.PW-2/A and Mark A were presented to him by accused Piyush. The forwarding note/letter (Ex. PW-7/A) was marked to him for forwarding the bill in question to the concerned expenditure branch.
18. During his cross-examination, PW-7 testified that during his tenure, the accused visited their office for official purposes i.e. for his due bills as well as for repair of the office fax machine. He could not recall number of outstanding bills and clarified that accused had never informed him about any such bills. He stated that he had met the accused on 3-4 occasions and 2-3 times prior to 04/07/2006. However, he is unaware that firm namely P & L services belonged to accused. The payment of bills of North-West District was released from account's branch of DCP's office. DCP's office used to receive the bills raised by P and L services either through DAK from the concerned offices of the North-
Page 14 of 42State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 West District or sometimes directly from accused. PW-7 admitted that bills received in their office from other offices through DAK were sent after their due verification and, in case the bills were found to be not verified properly, same were returned to the concerned official for proper verification. Initially, PW-2 stated that the bill (Ex.PW-2/A) was received by their office for payment in the same form, and in the same breath added that the said bill was handed over by the accused himself. He admitted that bill already had the signature and stamp of ACP for verification. After receiving the bill (i.e. Ex. PW-2/A), it was handed over to ASI Dalel Singh/dealing clerk. The ASI Dalel found that the bill was not properly verified, and sent it back to the concerned ACP's office with the letter (Ex.PW- 7/A). The said letter was prepared by the ASI Dalel and was signed by PW-7. He stated that the purpose of returning the bill is clearly mentioned in the letter. PW- 7 testified that he did not find any discrepancy in the bill (Ex.PW-2/A), except that it required proper verification. He further testified that he had not received any complaint against the accused or his firm regarding manipulation in the bills. He couldn't recall whether the accused's firm was involved in repairing computers, CCTV cameras of North-West District or whether the accused used to raise bills regarding such repairs or that same were received by their office for payment.
19. SI Satender Dhul has been examined as PW-8. After, SI Anil Paney, he had investigated the matter further. He is more or less formal witness. He stated that he interrogated complainant, SI Gulab, asked the accused to join the investigation, recorded statement of SI Gulab, sent the exhibits to the FSL Rohini, obtained the results and prepared the chargesheet. During his cross- examination, PW-8 testified that he had not checked the fax machine in question to verify whether any Fuser kit was replaced or not. He clarified the reasons for not doing so by stating that the present case pertains to investigation of alleged forgery by accused. He admitted that the accused and his firm used to perform Page 15 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 petty repair work in various offices prior to the date of the incident. He denied suggestions that he deliberately withheld the complete facts or that charge-sheet was prepared under pressure from the concerned ACP or that bill was not manipulated.
20. Inspector Anil Kumar Pandey has been examined as PW-9. He is the first Investigating Officer in the present case. He testified that on 23/8/2006, he received a letter bearing Reference No. 154, dt.19/8/2006 from the SHO Shalimar Bagh for necessary action. After going through this reference, he called HC Dharampal from ACP's office, recorded his statement and prepared rukka. He testified about getting the FIR registered through Ct. Vishal, calling accused, interrogating him, about his arrest, personal search, recording his confessional statement and recording statement of witnesses. He further testified that he had obtained specimen signatures and handwriting of accused and recorded witness statements.
21. During his cross-examination, PW-9 testified that Ct. Vishal was present at the time of recording of the statement of HC Dharampal and that HC Dharampal was called at around 05:00-05:30 p.m. from the ACP's office. He remained at the police post till 11:00 p.m. He admitted that name of HC Dharampal is not mentioned in the Ref Letter (Ex. PW-9/A) but clarified that HC Dharampal was called because he was the dealing official in the ACP's office. He testified that along with the reference letter, original bill for ₹5350, photocopy of bill for Rs. 350 and other documents were attached. He admitted that name of accused Piyush is neither mentioned in the tehrir nor in the FIR. He could not recollect the landline number mentioned in tehrir or the person to whom it belonged. However, he further testified that he had made a call was at the landline number mentioned in the tehrir. On the telephone call, accused Piyush Aggarwal said that he was coming to police post. Accused arrived at police station with his Page 16 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 father at around 07:00/07:30 p.m. and he was called after registration of FIR. He was put up in lock-up 11:30 p.m. PW-9 testified that he is unable to recall whether HCL and accused are connected, that he had not investigated their relation. He has no recollection whether accused Piyush was running a firm in name and style of P & L Services or whether the accused used to provide repair and maintenance services to various police departments. He conceded that in the reference letter, it has been mentioned that P & L Services was contacted telephonically and all payment of bills of that firm should be stopped. The ACP's office didn't provide any document reflecting whether parts of fax machine as mentioned in the bill were replaced or not. PW-9 testified that he had not checked the fax machine to verify whether parts were replaced or not and also didn't make any enquiry from the ACP's office. He examined only HC Dharampal and Ct. Vishal but not SI Ram Chander. He denied suggestions that accused was interrogated in absence of HC Dharampal or that accused's signatures were obtained on blank papers or that his disclosure statement was falsely prepared or that the FIR against accused was registered following instructions from ACP's office as mentioned the reference letter/Ex. PW-9/A or that many of the accused's bill were pending with the police dept or that accused was continuously following up on his payments or that accused has been falsely implicated to escape liability. PW-9 clarified that that instructions in the reference letter were solely to inquire into the matter.
ARGUMENTS AND CONTENTIONS:
22. It is argued on behalf of accused that he has been falsely implicated to avoid payment of his pending bills. It is contented that there was a delay in the registration of FIR and no complaint or action was taken by the police department or by HC Dharampal from 11.08.20006 till 22.08.20006. It has been pointed out as per PW-9, he registered the FIR after recording statement of HC Dharampal and on receipt of Ref. Letter (Ex. PW-9/A) however, he himself had admitted that name of HC Dharampal was nowhere mentioned in the said Ref. Letter.
Page 17 of 42State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 Furthermore, the even the name of the accused wasn't mentioned in the complaint/tehrir/Ex. PW-1/C and that accused had not tried to escape after receiving call from the police station. Ld. Counsel contended that the testimony of PW-2 is not reliable as it is riddled with material inconsistencies. It is further argued that all the material PWs admitted that no verification of fax machine was conducted to find out whether any parts (as stated in allegedly forged bill) were replaced, which was crucial to prove the alleged forgery. It has been further argued that presence of Ct. Vishal at relevant time is doubtful and the PW-2 was planted as complainant only to falsely implicate the accused. As such, it has been prayed that accused is entitled to be acquitted since the prosecution has failed to meet its burden of proof.
23. Per contra, Ld. APP for the State has argued that prosecution has succeeded in establishing the guilt of the accused. It has been argued that inconsistencies as pointed out by the defence are not material and liable to rejected as minor and insignificant and do not undermine the prosecution case. It has been further argued that the prosecution has proved that the bill no. 304, after ACP's, was in accused's possession who himself submitted the bill in DCP office on 11.08.2006 seeking its payment. The FSL report has proved that writing on the submitted bill no. 304 matched with the specimen handwriting of accused. Accused himself admitted in his statement u/section 313 of Cr.P.C. that he prepared the bill no.
304. Thus, prosecution has been able to prove that accused is maker of bill no. 304 (Ex.PW-2/A). It has been argued that as per FSL report, there were additional writings were made on the bill no. 304 after its initial preparation, and thus prosecution has been able to prove that bill no. 304 was altered after it was verified by ACP. It has been further argued that accused had dishonest intention and therefore he prepared a bill no. 304 with significant space left blank so as to allow for later alterations for monetary gains. It has been further argued that mere delay in registration of FIR in present is not fatal, as the alleged offence was Page 18 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 discovered by authorities during internal verification by the police department and had occurred only on account of administrative delay. The matter was first brought to knowledge of ACP, then discussed with DCP, marked to SHO and thereafter to SI Anil Pandey. As such it has been argued that prosecution has successfully discharged its burden of proof and accordingly accused should be held guilty of the offences charged.
PRELIMINARY OBJECTION ON MODE OF PROOF:
24. Objection was raised by the Ld. APP for the State on the mode of proof with regards to two documents i.e. photocopies of two invoices Ex. PW2/D1 (OSR) and Ex. PW-2/D2 (OSR) produced by defence during cross-examination of PW-2 The objection was noted at time. From record, it appears that objection is left to be decided.
25. Before proceeding further, it is important to decide the objection and see what whether these two documents can be read in evidence or not. Objections can be broadly categorised as: a) Objections relating to mode of proof and; b) objection relating to admissibility. It is to be borne in mind that even if no objection is raised upon a document, it still needs to be proved as per rules of evidence. The question of weightage and probative value to be assigned to said document still remains to be decided on basis of other available material.
26. A fact can be proved both by ocular evidence or by documentary evidence but in either case, evidence must be the best evidence, i.e. in case of ocular evidence, it must be testimony of the person who has first-hand knowledge of the fact and in case of documentary evidence, it must be primary document. 1 However, a person is permitted to adduce secondary evidence of existence and contents of original document, if he/she can prove any of the circumstances 1 See section 59, 60, 64 of Indian Evidence Act,1872.Page 19 of 42
State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 falling within the ambit of section 65 of the Indian Evidence Act, 1872. The section is reproduced hereinafter for ready reference:
"65. Cases in which secondary evidence relating to documents may be given.--secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:-
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
Page 20 of 42State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
27. In case titled as ASHOK DULICHAND Vs. MADAHAVLAL DUBE & ANOTHER 1975 AIR 1748, appellate had challenged the election of the respondent inter-alia on the grounds that latter has got published and widely circulated one defamatory leaflet ex. P4 and Hon'ble Madhya Pradesh High court did not allow the appellate to file the photostat copy of the manuscript of leaflet P4. It is in this factual context, Hon'ble Supreme court held:
"In order to bring his case within the purview of clause (a) of section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the Page 21 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."
28. In case titled as J. YASHODA Vs. K. SHOBHA RANI (2007) 5 Supreme Court Cases 730 wherein, while deciding the question of exhibiting and admitting certain secondary documents, Hon'ble Supreme Court held:
"The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section."
29. In case titled as H. SIDDIQUI (D) BY LR Vs. A. RAMALINGAM (2011) 4 SCC 240, suit was filed by appellate for specific performance on the ground that respondent issued power of attorney (POA) in favour if his brother and agreement to sale were executed between him and POA. Hon'ble Supreme Court held:
"Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where Page 22 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law."
30. In light of the legal principles discussed above, the documents i.e. Ex. PW- 2/D2(OSR) and EX. PW-2/D2 (OSR) are admissible in evidence. Both these documents were produced on 02.11.2017 during further cross-examination of PW-2. Word term "OSR" signifies that the original was seen and returned. Thus, if a person had produced original document during trial, he can lead secondary evidence as per section 65(1)(b) of Indian Evidence Act, 1872.
LEGAL PROVISIONS:
31. Section 463 of IPC defines forgery. As per said definition, there are two main ingredients constituting the offences: - firstly, making a false document and; secondly, the intention. What constitutes making of a false document is further elaborated in section 464 of IPC and said section also talks about intention (dishonestly or fraudulently). As per the said section, a person is said to make a false document, if with the intention (i.e. either dishonestly or fraudulently), he does any of the following:
(a) Creates a document impersonating or under authority of someone else knowing that he is not so authorized, or;Page 23 of 42
State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016
(b) Makes material Alteration in a document after it has already been created, or;
(c) Causes a person to either execute a document or alter the document without his knowledge about the contents of such document.
32. Section 468 IPC prescribes punishment for an aggravated form of forgery i.e. when forgery is done with intention to cheat. Similarly, section 471 IPC prescribes punishment for using a forged document as genuine with the knowledge that the document is forged.
APPRECIATION OF EVIDENCE:
33. Three documents pivotal to the case has been produced by the prosecution coupled with testimony of PW-2 and PW-7, to establish the that accused had committed forgery. These documents are discussed as follows:
(a) First document is the original submitted Bill No. 304 dt. 04.07.2006 for Rs. 5350/- which is alleged to have been forged. This document was exhibited as Ex.PW-2/A during trial and was marked as "X" by FSL during examination. The writings on this document were divided into three parts and have been marked differently in two FSL reports. All the writing on this document has been collectively marked as Q1 for its comparison with specimen handwriting of accused, which was exhibited during trial as Ex.
PW1/G to Ex. PW1/L (and marked during FSL examination as S1 to S6). The two initials at the bottom of Ex.PW-2/A have been marked as Q2 and Q3 for its comparison with the sample initials of accused, which were exhibited during trial as Ex. PW1/M to Ex. PW1/O (and marked during FSL examination as S7 to S9). The handwriting on original submitted bill has been further bifurcated for comparison and have been separately marked both during trial and during FSL examination as following:
Page 24 of 42State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 I. The words "Replacement of fuser KDI" (written at the top of column DESCRIPTION and just above the alleged initial writing) have been marked X3 to X4 and the same words with addition of figure "4700" has been marked by FSL as A1.
II. The words "Change of Buser" (written just below the alleged initial writing) have been marked X5 to X6 during trial and the same words with addition of figure "300" have been marked by FSL as A2. III. The words "Above Parts change in fax laser fax machine installed at ACP/ Sub div Rohini Delhi" have been marked during trial as X7 to X8 and by FSL as A2.
IV. The figures "01" and "02" on the left most column, the words "five thousand" at bottom left of the document, first figure of "5350", word "pa..", second figure of "5350" at bottom right of document and date "04/07/2006", have been marked by FSL as A3 to A8 respectively. These weren't marked during trial. V. The alleged initial writing "Repair & service charges" have been marked during trial as X9 to X10 but not separately marked by FSL. VI. The alleged initial amount in words "Three Hundred and fifty only"
has not been marked separately at all.
(b) The second document is carbon copy of original bill/Ex. PW-2/A. Same has been marked as Mark "A" during trial and as Mark X1/2 by the FSL. The alleged corresponding additional writing on this document has been marked by FSL as "B1" to "B8".
(c) The third document is a xerox Copy which was allegedly retained by PW-2 have been marked as Mark "Z" during trial and it has been marked as Mark "X1/1" by FSL. The document is important because it has been allegedly prepared from the original bill no. 304 before it was altered and Page 25 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 before it was verified by the ACP. Noticeable feature of this document are as follows:
I. The document reflects name of firm "P & L Services" mentioned in its header with same particulars including address etc. in the same manner, at same position and font size as Ex.PW-2/A. II. It has same number of columns and rows with identical sizes and identical headings, such as invoice no, order no, order date, unit price etc. III. A somewhat washed/faded but significantly visible watermark, same as in Ex.PW2/A, is reflected on this document in the column/box with same heading DESCRIPTION. Watermark is positioned at same distance from others columns as in Ex. PW-2/A. No writing is visible on the watermark in the xerox copy. IV. The extreme left side of the document is relatively less visible, but on a closer scrutiny, it is possible to comprehend the same. V. The xerox copy bears same invoice number i.e., no. 304, but is undated and doesn't bear any visible stamp of ACP office. VI. In the largest column with heading DESCRIPTION only one line with four different words is mentioned as "Repair & service charges". Corresponding to this, in the quantity column "01", unit price as Rs. "350", amount as Rs. "350" is mentioned. VII. Towards the bottom left of this document, the bill amount is mentioned in words as "Three Hundred and fifty only" and in the corresponding column, three rows/boxes have been created. In two boxes the amount is mentioned as "350" each and the middle box is blank.
VIII. There is blank space in the box before and after the line "Repair & service charges". Similarly, there is blank space before the word Page 26 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 "three...". Similar and relative blank space is available before the figures "350" in both the boxes.
IX. One stamp is visible on the right bottom side of this document, which similarly placed as in Ex.PW-2/B and is positioned at similar distance and initials "R" is also visible.
X. The bill has been prepared in the name of "DCP(N-W), Ashok Vihar Delhi".
34. Some of the above peculiarities have also been noted during FSL examination as well. It has been reported in Ex.PW5/B, that the corresponding writings/signatures in red enclosed portion marked X, X1/1 and X1/2 superimpose over each other. It further noted that though nature of xerox copy marked X1/1 is poor, however it contains complete or partial nature of visible strokes with the existing writings in the red portion marked X (original) and X1/2(carbon copy). And no complete or visible strokes of writings in blue enclosed portions marked A1 to A8 and B1 to B8 are observed in the xerox Copy marked X1/1.
35. It is pertinent to underscore that during trial, defence never raised any objection with respect to mode of proof or admissibility of xerox copy of bill (Marked B); although its existence and creation was questioned. A suggestion was put to HC Dharampal that said document has been created by placing blank paper on the original bill no. 304 which according to defence was initially prepared for Rs 5350/- as not 350/-. This suggestion was denied. I have considered that argument and possibility but on careful scrutiny of both Ex.PW- 2/A and Xerox/Marked "B", it is evident that this suggestion is baseless and misleading. In Ex.PW-2/A, on the watermark of P & L Services, alleged additional writing i.e. words "of bush", "parts change in fax...machine installed at.../Sub/ div Rohini Delhi" have been written. If PW-2 or any other person in the police department had created the xerox copy (Marked "B") by concealing Page 27 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 the alleged additional writing, then the watermark on the xerox Copy would not be visible. It has not been the case of the defence that any blank letterhead or invoice of accused's firm was already in possession of police department or its officials nor that such document was stolen or otherwise obtained. No such suggestion was ever put to any of the PWs. All the peculiarities of xerox Copy (Marked "B") as observed above, read along-with with observations in FSL report (Ex.PW5/B) and visibility of water mark on xerox copy sufficiently establish the two facts i.e. before the bill no. 304 was handed over to ACP for verification, it was undated, the original amount was only Rs. 350/- under single heading "Repair & service charges", and that PW-2 had prepared a copy of that bill and retained the it on record.
36. Moving further, for the reasons mentioned below, this court is also of the view that a single carbon copy of bill no. 304 was prepared both at the time of creating initial original bill no. 304 for Rs. 350/- and at the time of alterations in said bill: -
a) As per the version projected by defence, the Ex.PW-2/A was prepared as it is by accused himself. Spare parts were replaced, therefore at the very outset, an invoice for Rs. 5350/- was raised and no additions or alteration have been made in bill subsequently. It has not been disputed by the accused during trial that carbon copy of said bill was prepared.
b) The PW-2 has not stated anything in his deposition about preparation or subsequent handing of carbon copy of bill no. 304 except that the carbon copy was received along-with Dak from DCP office (Ex.PW7/A).
Interestingly, no question has been asked from this witness or from any PW on this aspect during their cross-examination.
c) As per PW-7, the invoice/Ex.PW-2/A was handed over to him by accused himself. He had remained consistent both in his chief examination Page 28 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 as well as during his cross-examination. The Ex.PW-2/A was sent back to ACP's office for verification vide letter/Ex.PW7/A. Defence didn't challenge testimony of PW-7 at this stage or earlier. No suggestions were put to him that he was lying. Instead, his testimony has used by defence to argue that no forgery has been done by the accused and, that he had previously never faced any such allegations before and that his bills were pending with the police department and that he used to visit DCP office, North-West for that purpose. The defence had suggested that accused is a victim of a conspiracy, in pursuance of which a false record was created and HC Dharampal was planted as complainant. Thus, the testimony of PW-2-that that bill no. 304 for Rs. 350/- after verification from DCP office was returned to technician and that EX.PW-2/A along-with carbon copy and accompanied by Dak from DCP office/Ex.PW-7/A was received- believable and is found to be truthful.
37. The afore-said two conclusions drawn by this court are further fortified upon closer scrutiny of carbon copy marked "A" in alongside the original Ex. PW-2/A. If defence version is to be believed- that the bill/Ex.PW-2/A was prepared only once for Rs 5350/- by the accused himself in his own hand- then, the placement of the words and figures as reflected in Ex.PW-2/A should correspond precisely with their placement in its carbon copy (Marked "A"). In other words, when the words "repair & service charges", "three hundred fifty only" and figures "350" were written, the alleged additional writings i.e. marked A1 to A8" should have been written simultaneously. Consequently, the placement of the alleged additional words and figures in relation to alleged initial writing, their mutual distance and distance with side columns or rows should be idnetical both in the original and its carbon copy. Having said so, the court is aware that there remains a possibility overall placement of entire writing and words on Mark Page 29 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 "A" might slightly differ in one direction. However, this is not the case for the accused.
38. There are noticeable differences and similarities between the original bill/Ex. PW-2/A and its carbon copy/Marked "A" with respect to the placement of certain words and figures: -
a) From the careful perusal and comparison of the original bill with its carbon copy, it appears that the initial writing "DCP N-W Ashok Vihar Delhi", in both these documents is relatively placed at the same distance from the top/bottom and side lines of box. The same applies to the words "Repair & service charges" and corresponding figures "350" in two columns.
b) The date i.e. "4/7/06" which is alleged to have been written subsequently, is positioned above the dotted line on the original bill, but it is crossing the same dotted line on the carbon copy.
c) The vertical distance between the figures i.e. "4700" and "350" in "amount" column in the original bill and its carbon copy is different. On the original bill, the said distance is visibly more than in the carbon copy.
d) Similarly, the vertical distance is noticeable between figures "350"
and "300" in two columns named UNIT PRICE and AMOUNT in two documents. The vertical distance between these two figures is smaller in the original bill than in the carbon copy.
e) Similarly, the vertical distance between the figure "01" written against the initial writing and word "laser" (reflected in column QTY) is greater in the original than in the carbon copy.
f) Moving on, the placement of numeral "5" in the figure "5350" reflected twice in the rows/boxes namely "Total Sales" is considerably Page 30 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 different in the original bill than in carbon copy. The numeral "5" is above the bottom line of both the boxes in the original bill. Whereas, in the carbon copy, it is considerably below these lines. In contrast, the figure alleged initial figure "350" in the carbon copy doesn't reflect this considerable change in its positioning. Same has also been noticed by FSL in its report/Ex.PW-5/B
(g) Additionally, the relative spacing between the alleged initial words "three thousand and fifty only" and the alleged additional words "five thousand" indicates that the words "five thousand" are written in a cramped manner. If the original bill no. 304 had been for Rs. 5350/-, the words "five thousand" would have been written in same flow and consequently with same space between all the words as is visible between the words "three hundred and fifty only".
(h) Although subtle, but there is still significant difference noticeable in the ink color used to write the alleged additional writing marked A-1 to A8.
39. These difference and similarities might have occurred as the alleged original and alleged additional writing of Ex.PW-2/A might have been made on two different occasions, therefore making it difficult to replicate the exact positioning and spacing of words and figures. Had the Ex.PW-2/A was prepared only once, such difference as observed would have been less pronounced.
40. Coming to observations in FSL report, it has been reported in Ex.PW5/B that the location of stroke of letter "d" in the word "thousand" and the head stroke of letter "T" in word "Three" on carbon copy show slight shifted nature in comparison to the same characters in portion marked A4 in the original bill. It also gave opinion that writings marked A1 to A8 and B1 to B8 might have been added subsequently on the existing documents after preparing the Xerox Copy Page 31 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 marked X1/1 from the document marked X prior to insertion of writings marked A1 to A8.
41. It is trite that court is not bound to accept the observations and opinion of expert witness. But in the facts of case and in light of discussion above, this court doesn't find any reason to discard the finding in report Ex.PW-5/B. On the basis of above-discussion and material on record, this court has sufficient reasons to believe that the initially the bill no. 304 was only for Rs. 350/- which was altered subsequently and presented for payment before PW-7 for monetary gains. From the manner of preparation of the bill no. 304 as reflected from its xerox copy, it appears that space was deliberately left blank so that same can be filled later on.
42. The next issue which needs to be determined is the authorship of the forged bill. It is the case of the prosecution that the bill no. 304 was raised by company's technician after the fax machine was re-installed and its working was found to be satisfactory. It has been pointed out by the Ld. Defence Counsel that PW-2 during his testimony has stated that bill no. 304 was handed over to him which was already prepared in name of DCP, North-West; whereas in his previous statement (Ex.PW-1/C), PW-2 had stated that they (technicians) prepared the bill in name of DCP/NW at the same time. On careful consideration of material, to my mind, the inconsistency doesn't appear to be material. One has to be mindful that there is considerable time gap of about 8 years between the incident and examination of PW-2. It is unreasonable to expect him to recall each and every detail accurately. Further, the FSL report Ex.PW5/A, states that the handwriting on the Ex.PW2/A tallies with the sample handwriting of the accused. No suggestion was put to the PWs that sample handwriting doesn't belong to accused. Defence only suggested that signatures of the accused were obtained on blank papers, which was denied by all the PWs. The FSL report had examined the loops of individual letters, their ending strokes, connection with other letters. The report and the Page 32 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 documents have been carefully perused by this court. This court doesn't find any reason to doubt the finding in FSL's reports. Moreover, accused himself admitted (during his statement u/s 313 Cr.P.C.) that he prepared the entire document Ex.PW2/A in his own handwriting. Thus, prosecution has successfully established that the Ex.PW-2/A was prepared by accused.
43. It has been further argued that even though HC Dharampal had stated that he had not seen or heard of accused prior to registration of FIR but during his cross-examination, he himself admitted his signature on an Invoice no. 1491 (Ex.PW2/D1) which is dated 05.08.2005. It has been argued that this admission on his part indicates that he knew the accused prior to 23.08.2006 and was posted in ACP's office even prior to April 2006. I have considered the argument and same is found to be without any merit. Firstly, the document Ex. PW2/D1 is an undated document. Secondly, the PW-2 had only admitted his signatures on the same. No further question was put to him regarding date of its production, circumstances as to how it came before PW-2. Thus, without putting those questions to PW-2 and depriving him of the opportunity to furnish an explanation, it cannot be inferred that PW-2 was deployed in the ACP office at diary dispatch seat even in August 2005. Furthermore, by no stretch of imagination, it can be inferred only on basis of one invoice that accused was known to PW-2 prior to 23.08.2006. If that were true, PW-2 would have specifically named the accused and his firm in his previous statement (EX.PW-1/C). However, as admitted by accused himself, his name is not mentioned specifically, neither in the tehrir and nor in the FIR.
44. The defence has also highlighted that the xerox Copy (Marked "B"), was undated, the amount of bill is mentioned as "Three Thousand and ..." with significant gaps before the word "three". This bill was handed over to SI Ram Chander who further got it verified from ACP. Ld. Counsel has stressed that it is Page 33 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 unlikely that such incomplete and undated bill would be verified by ACP. This submission may appear compelling but lacks any substantive significance. It is widely known that the public offices in our country, particularly Police department, are overburdened and are working with limited resources. The police are responsible for only for investigations, but also for maintaining law and order, providing VIP security etc. Therefore, it is not difficult to imagine a situation where an undated bill was verified by the ACP due to administrative oversight. However, as already discussed above, the bill no. 304 was a document prepared by the accused. Thus, he is better positioned to explain as to why it was undated with significant space left blank.
45. It is also pointed out that during his cross-examination, PW-2 HC Dharampal himself admitted that word "yes" was mentioned against column "spare used" on a receipt. It has been further argued that HC Dharampal couldn't confirm whether spare parts were used or replaced in the machine or not. It has also been contended that no investigation was conducted by the IOs to verify whether spare parts have been used and replaced or not. I have considered this argument. As per Ex.PW2/D2, the document produced by accused himself, a note is mentioned "satisfactory report attached", which is missing from the invoice no.304. If the parts as alleged were indeed replaced and changed, nothing prevented the accused from obtaining this qua the invoice no. 304 when fax machine was brought back to the ACP's office for re-installation. However, as discussed above, accused made additions in the bill subsequently. Further, nothing stopped him from obtaining "job certificate" or "satisfactory report". From the record, the said noting was also found missing when the invoice no. 304 was presented before PW-7 for payment. The perusal of letter (Ex.PW-7/A) indicates that the bill was returned for want of "job certificate" with signatures and full designation of the officer. Thus, it was upon accused (who admittedly had provided services to police dept even prior to incident also), to collect that Page 34 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 certificate before presenting it to PW-7. Investigating Agency can not be faulted for not verifying the fax machine for "replacement of fuser and change of Bush". Furthermore, the word "yes" has no significance. Firstly, because the word was crossed out, as testified by PW-2. Since the police department didn't possess original receipt, it can not be determined when the word "yes" was written and whether it was crossed out later or whether it was written over the cross. Secondly, the term "spare parts" is vague as it doesn't specify which spare part was used. Similarly, it was accused, who chose to affix stamp on the bill no. 304 despite knowing that amount was lesser than 500/-, thus, it is upon him to furnish explanation and not PW-2.
46. Further, it has not been denied by the prosecution that there was delay in registration of FIR, but it has been argued that it is not fatal and has resulted from administrative delay. Thus, the question to be determined is whether the delay is fatal and has adversely affected the prosecution's case. A delay in registration of FIR is a significant aspect to be considered in criminal trials due to following reasons:
(a) Firstly, a delay can lead to suspicions that the complaint may have been an afterthought, giving the complainant time to fabricate or embellish the account of events. This can undermine the spontaneity and authenticity which are considered hallmarks of a truthful account.
(b) Secondly, delay can result in the loss of crucial evidence and the dimming of memory among witnesses, which can severely impair the investigation.
(c) The longer the delay, the greater the chance that the crime scene could be tampered with, or that witnesses could be influenced or intimidated.Page 35 of 42
State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016
47. Coming to the facts of the present case, some irregularity was noticed in the Ex.PW-2/A on 11.08.2006 by the DCP department, which had sent back the same to the ACP's office. It is not unknown when the concerned ACP become ware of the irregularity in the invoice. He has not been cited a witness. As per PW-2, after he noticed the additions in the bill, he informed SI Ram Chander who was working as SO of the ACP concerned. Unfortunately, SI Ram Chander couldn't be examined during trial due to his medical condition. Thus, there is dearth of material on record to draw any inferences as to why the matter remained pending before the ACP concerned till 18.06.2006. Moving on, the Ref. Letter/EX. PW-9/A reflects that the matter was discussed with the DCP concerned, after which it was sent to SHO Shalimar Bagh who marked it to IO/Anil on 23.08.2008. It has been suggested to PW-2 that in the meanwhile, accused was called to the ACP's office. However, no such suggestion was put to PW-9 or PW-7. Further, no suggestion was put to any of PWs that any ulterior motive was being fulfilled by keeping the matter pending. Accused in his statement recorded u/section 313 had not raised any such allegations. He had stated that many of his bills were pending for payment. However, he didn't provide any specific details of such bills and nor produced the same. No specific question was put to PW-2 or PW-7 regarding any specific unpaid bill. Thus, no ulterior or motive could be proved by the accused which would have compelled the police department to plant a witness, create a document i.e. Xerox Copy and to implicate accused. As noticed by defence, name of accused is also not mentioned. The Ref. letter and the tehrir only talks about the document Ex.PW2/A, its carbon copy and xerox Copy. Thus, delay in registration of FIR in the present case can not be terms as deliberate, intended to implicate accused.
48. It has been contended by the defence that PW-2 couldn't recall many details like date and time of call, person to whom call was made by SI Ram Chander, name of company represented by two technicians. PW-2 couldn't Page 36 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 produce any file for keeping photocopies of bill and he didn't raise any objection to bill being undated or gaps in space before the word "three". As discussed above, PW-2 was examined after 8 years of the incident. No reasonable person can be expected to be able to recalls the details as pointed out by the Ld. Defence Counsel. Further, it was repeatedly stated by PW-2 that he had informed about suspected forgery to SI Ram Chander as soon as it came to his notice. There is nothing unreasonable about the conduct of PW-2 simply because he didn't give a any complaint in writing. He had performed his duty by bringing the matter to the notice of his immediate superior i.e. SI Ram Chander. It was upon the ACP to decide whether to act upon that information or not. Further, PW-2's testimony cannot be doubted because he wasn't able to tell company name or because he didn't make a complaint in writing or because he didn't produce the file. The duty of the court is to sift the grain from the chaff. 2 Here it would be apt to refer to the observations of the Hon'ble Supreme Court is the case titled as BHAGWAN JAGANNATH MARKAD Vs. STATE OF MAHARASHTRA, (2016) 10 SCC
537. The relevant paragraph is reproduced hereinbelow for ready reference:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the 2 State of U.P. v. Anil Singh, 1988 Supp SCC 686. In the said case, Hon'ble Supreme Court made following observations in paragraph no. 17 which are reproduced hereinafter:
"It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."Page 37 of 42
State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted[18]".... A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."
49. Here, support can also be drawn from the observations of the Hon'ble Supreme Court in BIRBAL NATH Vs. STATE OF RAJASTHAN, 2023 SCC ONLINE SC 1396. In the said case, while appreciating the testimony of the wife of the deceased, it was observed by the Hon'ble Court that "...One cannot lose Page 38 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 sight of the fact that PW-2 Rami is an injured eye witness, and being the wife of the deceased her presence in their agricultural field on the fateful day is natural. Her statement in her examination in chief gives detail of the incident and the precise role assigned to each of the assailants. This witness was put to a lengthy cross examination by the defence. Some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands. In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a Court of Law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross examination of a witness may invariably result in contradictions. But these contradictions are not always sufficient to discredit a witness"..."22...Even assuming for the sake of argument that there is a difference in the two statements of PW-2 as she evidently does not disclose in her examination-in-chief that Jethnath was also working in the adjacent field and there was altercation between the two, this may discredit the witness only so far as the beginning of the incident; how it started. The fact that the incident happened is not in doubt. The offenders were the accused is also not in doubt. There is no doubt that the incident took place, which resulted in one death and grievous injuries to another. It may not have happened exactly as narrated by PW-2, yet for this discrepancy the entire testimony of PW2 cannot be discarded"
50. Furthermore, it has been settled by Hon'ble Supreme Court in catena of its judgements3 that faulty investigation is not a ground for acquittal. It was observed in one of such cases that "The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra 3 Also See Abdul Gani v. State of M.P., (1952) 1 SCC 253; Paras Yadav v. State of Bihar, (1999) 2 SCC 126; Ram Bali v. State of U.P., (2004) 10 SCC 598.
Page 39 of 42State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved."4 In yet another case5, Hon'ble Supreme court pondered upon effect of faulty investigation and observed that "Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective." Similarly,6 it was also observed that "In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice."
CONCLUSION:-
51. It is trite that in any criminal case, the initial burden to prove the guilty of accused is on prosecution. Prosecution bears a heavy burden and has to prove the guilty of accused beyond shadow of reasonable doubt. By reasonable doubt, it is not meant that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.7 The standard 4 Visveswaran v. State, (2003) 6 SCC 73 5 Karnel Singh v. State of M.P., (1995) 5 SCC 518 6 Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 7 State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86 Page 40 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. It has been further observed that "Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law."8 At this stage, I also find apt to refer to the observations of Justice V. R. Krishnaiyer in a judgement9. Same is reproduced herein below for ready reference:
"...While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes..."
52. In light of legal principles and facts discussed above, this court is of the opinion that prosecution has been able to establish the ingredients of the offences 468/471 and succeeded in proving that the accused prepared initial bill no. 304 only for Rs. 350/- and later on altered the same by making additions and also presented it to DCP's department for seeking payment of Rs. 5350/- for his 8 Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445 9 Inder Singh & Anr. V State (Delhi Administration) 1978 AIR 1091 Page 41 of 42 State Vs. Piyush Aggarwal FIR No. 625/2006 PS Shalimar Bagh Cr. Case No. 538358/2016 monetary gains and with intention to cheat the police department. Hence accused PIYUSH AGGARWAL S/o Late Sh. R. K. Aggarwal is hereby stands CONVICTED of the offences punishable u/section 468/471 of Indian Penal Code, 1860.
53. Copy of this judgement be given free of cost to the convict.
Pronounced in the open
Court on this 09.07.2024 (Ritika Kansal)
JMFC-07 (North West)
Rohini Courts, New Delhi.
It is certified that this judgement contains total 42 each page signed by me.
(Ritika Kansal) JMFC-07 (North West) Rohini Courts, New Delhi. 09.07.2024 Page 42 of 42