Delhi District Court
Pooja vs . M. Madhusudan Rao, Reported As Crl. ... on 29 October, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
Digitally
State signed by
POOJA
POOJA TALWAR
Vs.
TALWAR Date:
2018.10.30
Rajiv Khanna 17:45:23
+0530
FIR No. 485/2004
P.S Vasant Vihar (EOW)
JUDGMENT
1. Sr. No. of case 2034179/2016
2. Date of institution 08.12.2006
FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 1 of 41
3. Name of the complainant Professor Sh. Ashok
Parthasarthy
S/o Sh. G. Parthasarthy
R/o B-260, 1st Floor, Greater
Kailash-1, New Delhi
4. Date of commission of offence During the period from 01.02.2000 to 27.01.2004
5. Name of accused Rajiv Khanna R/o Sh. H.R. Khanna R/o C-2C/6, Janakpuri, Delhi
6. Offence complained of U/s 406/420/468/471/120 B IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 23.10.2018
9. Final order Convicted 10 Date of such judgment 29.10.2018 BRIEF STATEMENT OF REASONS FOR THE DECISION OF THE CASE
1. The story of the prosecution is that a complaint was received on 29.12.2004 from Professor Sh. Ashok Parthasarthy FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 2 of 41 stating that he joined Jawahar Lal Nehru University (hereinafter referred to as JNU) as Professor in March, 2000 and on his recommendation, accused Rajiv Khanna was appointed as OSD in the Programme of Science Policy in JNU. All the cheques relating to expenses of centre were to be jointly signed by him in the capacity of Chairman and Sh. Kartar Singh who was the Deputy Financing Advisor of the University. Thereafter, the cheques were dealt with by the accused. During the audit of Special Programme for 2003-04, it came to the notice of complainant that three cheques were fraudulently deposited and money was withdrawn from the account of Special Programme. Upon checking, it was revealed that the said cheques were remitted in the account of M/s Rhythm Tour and Travels. The said cheqeus were not signed by complainant and his signatures on the said cheques were forged. There were no transactions between the Special Programme and M/s Rhythm Tour and Travels hence, the question of issuance of any cheques in favour of this company did not arise. It was later revealed that Rajiv Khanna was the owner of said company M/s Rhythm Tour and Travels. Rajiv Khanna was confronted with the said fact. He admitted the same and gave a letter that he had FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 3 of 41 indeed forged the abovesaid three cheques and assured to repay the said money. The said amount of cheques was returned by accused. After completion of his term in the University, accused returned to his parent department and one Sh. Prakash Jagiasi was inducted as Project Officer. Upon joining Sh. Jagiasi assessed the status of money in the bank account of Special Programme of Science Policy. He was shocked to find that the money in the bank account of the centre was far less than the one reflected in the bank statements. Upon this, accused was confronted and he confessed having diverted the funds from the account of Special Programme and assured that the same would be returned with interest in instalments. Accused Rajiv Khanna confirmed having embezzled the said amount through a letter dated 26.09.2004. In that letter, he assured to return the payment but the same has not been repaid. Upon the complaint of complainant, FIR was registered, investigation was carried out and chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence of under section 406/468/471/201 IPC was framed against the accused. FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 4 of 41
3. In order to prove its case, the prosecution examined 21 witnesses in all.
4. Sh. Kartar Singh, retired Deputy Finance Officer, Jawahar Lal University was examined as PW1. He deposed that in the year 2001, he was posted as Deputy Finance Officer, Jawahar Lal University. There was a project Special Program of Science Policy at School of Social Science which was being run under the supervision of Professor Sh. Ashok Parthasarthy. The financial administrative functions of the said project was exclusively maintained by project secretariat by OSD, S.P.S.P. i.e accused. Accused used to maintain the records of all financial matter i.e. cheque books, cash books, bank statements, vouchers, sub-vouchers and other records. In the said project, Professor Sh. Ashok Parthasarthy was the first authorized signatory and he was the second authorized signatory on the cheques of expenditure of this project. In November, 2004 his finance officer informed him that some cheques were forged in the project and accused had refunded three cheques which were forged on the forged signatures of Professor Sh. Ashok Parthasarthy and himself. He was shown 42 cheques in orginal attached with the judicial file. However, he admitted his FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 5 of 41 signatures on cheques bearing Nos. 736096 dated 04.07.2002, 736099 and 736100 dated 05.07.2002. However, he denied his signatures on other remaining cheques and stated to be forged signatures. Witness correctly identified the accused before the Court.
5. Mrs. Lalita Krishnamurthy was examined as PW2. She deposed that she was a Chartered Accountant by profession and partner in S. Ramanand Aiyar & Company, Chartered Accountants, 708, Surya Kiran, 19, K.G. Marg. In the month of December, 2003, she audited the accounts of Special Programme in Science Policy in JNU, Centre for studies in Science Policy, School of Social Science for the period of three years started from 01.04.2000 till 31.03.2003. She conducted the audit on the basis of records provided by accused. On the audit, she found several irregularities and mentioned the same in her report dated 18.12.2003. Certified true copy of the same is Ex.PW2/A. Her letter to police is Ex.PW2/B and photocopy of passbook as provided by accused is marked as Mark PW2/C. Witness correctly identified the accused before the Court.
6. Sh. Manbir Sharma, Office Attendant, Jawahar Lal Nehru University was examined as PW3. He deposed that he has been FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 6 of 41 working as Office Attendant in JNU since 1982. The cheque given to him by accused to be got encashed from SBI, JNU Campus Branch. The office of accused was in the same building and on the same floor. Accordingly, he went to SBI, JNU Campus Branch and got the cheque encashed and handed over the money to accused. He correctly identified the cheque bearing No.380210 and admitted his signatures on the back side of cheque. The said cheque is Ex.PW3/A. Prior to handing over the cheque to him, accused made authorization on the back side of cheque. Witness correctly identified the accused before the Court.
7. Sh. Sat Prakash, Library Attendant, JNU was examined as PW4. He deposed that in the year 2001, he was posted as Office Attendant in CSSP (Centre for Studies in Science Policy). He used to visit the bank i.e. SBI situated in Old Campus for the office purposes. One day, OSD (Officer on Special Duty) i.e. accused in SPSP project handed over a bearer cheque to him after making the authorization on the back of cheque. He went to the above said bank and withdrew the money and handed over the money to accused. During this process, he also signed on the back of cheque. He admitted his signatures on the FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 7 of 41 cheque of State Bank of India bearing No. 332995 dated 23.05.2001 for sum of Rs.22,424/-. The said cheque is Ex.PW4/A. He stated that the said cheque was handed over to him by accused for withdrawal of money.
8. Sh. Ashok Parthasarthi was examined as PW5. He deposed that he joined JNU as a Professor in the Center for Science Policy Studies in March, 2000. He used his extensive contacts in industry, Financial Institutions and Scientific Department of the Government of India to collect an amount of Rs. 80 lacs for the purpose of the operation of the centtre. When he entered the University the Vice Chancellor set up a special programme on science policy to manage and use those funds for the centre. Accused had worked with him in his earlier positions as Secretary to the Government of India in various Scientific Departments. He recommended the University that accused be appointed OSD in the Programme of Science Policy in JNU to provide him administrative and financial support for the management of that programme for the purposes of center. The University approved his proposal at the level of the Vice- Chancellor. All cheques relating to expenses of the centre were to be jointly signed by himself as the Chairman of the centre FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 8 of 41 and Sh. Kartar Singh, the Deputy Financial Advisor of the University. The cheques were then dealt with by accused for the purpose of issue. After finishing his term in the University accused returned to his present department i.e NRDC. The University then approved the induction of Sh. Prakash Jagiasi as Project Officer to undertake the same kind of functions which was earlier undertaken by accused. One of the first directions, he gave to Sh. Prakash Jagiasi to assess the status of the monies in the bank account of the Special Programme of Science Policy. Sh. Jagiasi having experience in finance did so. He was shocked to find that the money in the bank account of the center were far less than those according to the bank statements. This indicated defalcation of funds from the bank account of the Centre. Accused was confronted and he finally accepted that he diverted the funds from the account of the Special Programme and that he would return the amount with interest in instalments. The funds were around Rs. 17.5 lacs. Further investigation revealed that accused withdrew the defalcation by forging the signatures of both the authorized signatories i.e himself and Deputy Financial Advisor of the University on the large number of cheques. Accused also FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 9 of 41 managed to alter the bank statements of the Special Programme so as to make them concordant with the forged cheques. On the financial side, the accounts of the programme of the first three years were got audited by the firm of auditors M/s. Ramanand Ayyar & Sons Ltd and were fund to be in order by Finance Officer of the University. The audit of the forth and fifth years of the programme was to be done and was done by such branch of University. While undertaking reconciliation of the special programme for the year 2003-04, it was noticed that three cheques were fraudulently deposited and money withdrawn from the account of special programme from account maintained in the SBI, JNU Branch. There were no bills or vouchers for cheques of Rs. 7,00,000/- approximately in the record and at that time, he was sure that no cheques for such amounts had been signed under the special programme. He checked up the matter with the bank and it was revealed that the cheques were remitted to M/s Rhythm Tour & Travels. The ahovesaid cheques were not signed by him and he had never received any other cheque in favour of the aforesaid company and during enquiry, it was revealed that accused was the sole owner of M/s Rhythm Tour and Travels company/firm. The FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 10 of 41 principal suspect for perpetrating this fraud was accused as he dealt with the accounts and other financial matters of the programm at the day to day level. Further, Sh. Udai Singh informed him that accused Rajiv Khanna was the sole owner of said Tour and Travels. By way of evidence, Udai Singh informed him that he had seen accused making out bills on the letter head of the said company while in the office of Special Programme in JNU. Thereafter, his initial concern was to get back the money that accused illegally and fraudulently withdrew. Accused confessed that he indeed forged the abovementioned three cheques and assured that he would repay the misappropriated amount. At the same time, a pay cheque in the sum of Rs.1,34,000/- was issued in favour of Special Programme and handed over to him personally alongwith confession letter and the same cheque was credited into the bank account of Special Programme. Thereafter, accused gave him a second cheque for the amount of Rs.1,97,000/- in the month of February and last cheque for the amount of Rs.3,96,000/- in the month of March, 2004. There were two more outstanding payments to be made by accused, one was n the sum of Rs. 11,000/- approximately by way of interest of FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 11 of 41 TDS of which he had not intentionally deposited in the bank and second was a sum of Rs. 22,000/- approximately by way of interest on the amount of Rs. 7,27,000/- approximately misutilized by him for his personal use by way of misappropriation. He finally paid the amount in last September, 2004. Thereupon, he confronted accused Rajiv Khanna who confessed that he forged cheques amounting Rs. 13.2 lacs and defalcated that amount from the accounts of Special Programme. Accused confirmed his confession in writing through a letter dated 26.09.2004. However, he paid only Rs. 80,000/- and two cheques of Rs. 6 lacs each given by accused were bounced. He intimated the entire matter to Dean of School of Social Sciences, JNU in this regard. He made a detailed complaint to the Commissioner of Police for registration of FIR against the accused which is Ex.PW5/A. The document regarding appointment of accused is Ex.PW5/2 and office order is Ex.PW5/3. Request dated 10.03.2000 for opening of bank account for special programme in Science Policy, JNU in the SBI Bank, JNU Branch is Ex.PW5/4. The confession letter dated 26.02.004 of accused is Ex.PW5/5 and another confession letter dated 21.09.2004 is Ex.PW5/6. During FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 12 of 41 the course of investigation, he gave specimen of his signatures and handwriting in order to compare the same with the forged signatures and handwriting through misappropriation of money committed by accused which is Ex.PW5/7. He after seeing the 42 cheques stated that all these cheques were in custody of accused and he had only signed five cheques and on remaining 37 cheques, his signatures were found to be forged. The 42 cheques are Ex.P1. Witness correctly identified the accused before the Court.
9. Sh. Krishan Kumar Kuba was examined as PW6. He deposed that in the year 2005, he was working as a partner with K.G. Somani and Company Chartered Accountant 3/15, Asaf Ali Road, New Delhi. He provided a letter dated 14.11.2005 to police which is Ex.PW6/A. The letter dated 12.11.2005 is Ex.PW6/B and special audit report in respect of Special Programme in Science Policy since its inception i.e 24.03.2000 to 19.01.2005 is Ex.PW6/C to JNU.
10. Sh. Murgesh was examined as PW7. He deposed that in the year 2005, he was working as a Junior Assistant cum Typist in Special Programme for Science Policy at JNU. Sh. Rajesh Kaushik was working on this post before him. Accused was FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 13 of 41 working as OSD to Director, Professor Sh. Ashok Parthsarthy and was looking after the whole work of administration and was replaced by Sh. Prakash Jagiasi. Sh. Prakash Jagiasi was looking after the work of accounts department. Sh. Prakash Jagiasi found some discrepancy in accounts department and he apprised the same to Sh. Ashok Parthaarthy. On asking of Sh. Ashok Parthaarthy, Parkash Jagiasi verified the accounts and found deficit of balance. He examined the debts of cheques and the payments to parties and the payment to parties and thereafter, he asked the complainant Sh. Ashok Parthsarthy that he had knowledge about the issuance of some cheques and payment. In this way, misappropriation in the accounts was surfaced which was happened during the service period of accused. Accused was called up by Sh. Ashok Parthsarthy and asked about the discrepancy in the accounts. The Vice Chancellor was also intimated. The cheques Ex.PW7/P1, Ex.PW7/P2 and Ex.PW7/P3 which were issued in favour of M/s. Rhythm Tours and Travels from the account of the project and on verification, it was found that the signatures of A. Parthasarthi and Kartar Singh were forged and fabricated on the said cheques. Accused was called in the office on 26.02.2004 FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 14 of 41 and he confessed his guilt in his presence vide confession letter Ex.PW7/A. Accused also promised to return the money embezzled by him. Thereafter, he returned the embezzled amount by giving three cheques which are Ex.PW7/4, Ex.PW7/5 and Ex.PW7/6. Accused was again confronted vide confession Ex.PW7/B. Accused had misappropriated various payments of Income Tax and Service Tax deductions for which vouchers were prepared and cheques were issued but the cheques thereof were not deposited with the bank by accused. Cash book was not prepared by accused which was later on prepared by Sh. Prakash Jagiasi. His initial appointment letter with SPSP project as Junior Assistant/Attendant is Ex.PW7/C.
11. Sh. Vinod Kumar Sharma was examined as PW8. He deposed that he is posted in Punjab National Bank for last 4 years. He produced bank statement from the period 15.01.2004 to 23.09.2007. He also produced the certified copy of transaction inquiry i.e. bank statement of account no. 1610000100153187 which is in the name of accused and Mrs. Indu Khanna from the period 15.01.2004 to 23.09.2007. The certified copy is Ex. PW8/A and certified copy of same is marked as Mark B. The account opening form of Punjab FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 15 of 41 National Bank in the name of accused and Mrs. Indu Khanna is marked as Mark A. Original four cheques bearing nos. 702190, 702191, 702187 and 702188 drawn on Punjab National Bank, Vikaspuri Branch, New Delhi are Ex.P1 (colly). The specimen signature card of accused is Ex.P2.
12. Sh. Ram Kumar was examined as PW9. He deposed that he was posted in SBI JNU Branch as Deputy Manager from 2001 to 2008. On 19.05.2006, 19 cheques were seized by police pertaining to account bearing no. 37557 vide seizure memo Ex.PW9/A. Covering letter was produced by AGM which is marked as Mark C. On 10.11.2006, police took into possession 20 cheques and seized the same vide seizure memo Ex. PW9/B. Covering letter was produced by AGM which is marked as Mark D. All 39 cheques are Ex. P2 (colly).
13. Sh. Udai Singh @ Udal Singh was examined as PW10. He deposed that in the year 2002, he used to work as driver in J.S. Tourist and Travels. Generally, vehicles of J.S. Tourist and Travels company which he used to drive was hired by Prof. Parthsarthi, Project Director in JNU. Thereafter, he left the job of J.S. Tourist & Travels and started driving vehicle of Prof. Parthsarthi. Accused who was PS to Prof. Parthsarthi told him FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 16 of 41 that he was the owner of Rythem Tours and Travels. Witness correctly identified the accused before the Court.
14. Ms. Renu Sharma was examined as PW11. He deposed that in the year 2005, she was posted as an Accountant in the Union Bank of India, Janakpuri Branch. On 28.10.2005, she gave certain documents to IO vide her letter Ex.PW11/A. She supplied original account opening form and other related documents of M/s. Rythem Tour & Travels, original specimen card of account holder, bank statement photocopy of said account, three original cheque deposit vouchers and one original cheque to IO which are Ex.PW11/B, Ex.PW11/C, Ex.PW11/D (witness put her signature on the original cheque at the time of account closure), Ex.PW11/E1, Ex.PW11/E2 and Ex.PW11/E3 respectively. She also supplied the bank account statement of account of M/s. Rythem Tour & Travels from the time period 01.01.2003 to 31.12.2003, 01.10.2002 to 31.12.2002, 01.07.2003 to 31.07.2003, 01.10.2003 to 31.12.2003 and 18.02.2004 to 17.02.2005 to IO which are Ex.PW11/F. The certificate under section 2A (B) of Banker Book of Evidence Act regarding the content of the electronic evidence is Ex.PW11/G. The specimen signature card is FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 17 of 41 Ex.PW11/H.
15. Sh. Mahavir Singh, Deputy General Manager, SBI was examined as PW12. He deposed that he was posted in SBI, JNU Branch as a Branch Manager from 2005 to 2007. On 11.11.2005, he signed a covering letter BR/314 in reference to letter forwarded by EOW (CB). The said letter is Ex.PW12/A. He also signed two letters bearing Nos. BR:40:06-07 dated 19.05.2006 and BR:2006, 165 dated 10.11.2006 which are already marked as Mark C and Mark D. He also signed letter No.252/2006 dated 02.12.2006 which is Ex.PW12/B.
16. Sh. Vijay Kumar Bhalla, Deputy Manager, Office at IBB Branch, Barakhamba Road was examined as PW13. He deposed that on 31.10.2005, he was posted as a Marketing Assistant, PNB, Vikas Puri. That day, he wrote and sent covering letter alongwith documents mentioned in the covering letter to IO. The covering letter is Ex.PW13/A.
17. Inspector J.S. Mishra was examined as PW14. He deposed that on 10.10.2006 he remained associated with SI Pankaj Arora in the investigation of he present case. On that day, accused was apprehended and was arrested by SI Pankaj before him. On FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 18 of 41 12.10.2006, he alongwith SI Pankaj Arora and other staff reached at the house of accused at C-2C/2/6, Janakpuri where he produced three blank books of M/s Rythm Tour & Travels, some pass books and cheque books of bank which were seized by IO. He signed the seizure memo as a witness. They reached at the above said address at the instance of accused. The seizure memo is Ex. PW14/A. The documents i.e three blank bill books, one blank pass book of SBI and one pass-book of PNB as mentioned in the seizure memo are Ex. PW14/B. Witness correctly identified the accused before the Court.
18. ASI Jai Pal Singh was examined as PW15. He deposed that on 10.10.2006, accused was arrested by IO/SI Pankaj Arora in his presence vide arrest memo Ex.PW15/A. His body inspection was done vide body inspection memo Ex.PW15/B. His personal search was conducted vide personal search memo Ex.PW15/C. On the next day, disclosure statement of accused was recorded by IO which is Ex.PW15/D. Witness correctly identified the accused before the Court.
19. Retired ACP H.M. Bakshi was examined as PW16. He deposed that on 09.02.2005 when the investigation of present case was entrusted to him on transfer from PS Vasant Vihar, he FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 19 of 41 conducted the part investigation. During investigation, he examined the various witnesses including complainant Professor A. Parthasarthi and recorded their statement under section 161 Cr.PC. He also collected the various documents from the JNU, Banks and other sources and placed them on record. Thereafter, the investigation of case was transferred to Inspector Pankaj Kumar for further investigation, who finalized the investigation. The documents i.e. photocopies which were received by him from complainant Professor A. Parthasarthi are marked as Mark PW16/A. The documents which were received by him from Registrar, JNU are marked as Mark PW16/B and documents which were received from V.K. Bhalla, Marketing Assistant, PNB, Vikaspuri alongwith a covering letter dated 28.11.2005 are marked as Mark PW16/C. He also recorded the statements of some prosecution witnesses including Prakash Jagiasi, K. Murgesh and Kartar Singh under section 161 Cr.PC.
20. Smt. Prema Jagannathan was examined as PW17. She deposed that she was working as Assistant Finance Officer, Finance & Accounts Department, JNU since the year 1994. She was looking after the Project Cell, JNU since September, 1999. The bills of various projects of JNU were processed and passed FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 20 of 41 through the Project Cell. The Project Cell also used to keep the records of bills passed by the cell. Witness correctly identified the accused before the Court.
21. Retired SI Ram Avtar was examined as PW18. He deposed that on 29.12.2004, after registration of FIR, the present case was handed over to him for investigation. Duty Officer PS Vasant Vihar gave him the copy of FIR and original rukka alongwith the original complaint. After few days, the case file was further transferred to some different Investigation Officer as per the direction of SHO PS Vasant Vihar. He handed over the case file to SHO PS Vasant Vihar.
22. Sh. Sanjeev Kumar was examined as PW19. He deposed that he has been working as Senior Manager, Bank of India, Khan Market Branch since 27.06.2017. He knew Sh. K.C. Nigam in the official capacity. He had received a number of official documents written and signed by Sh. K.C. Nigam forwarded and routed through his office. He further deposed that he saw Sh. K.C. Nigam doing signatures and writing. The deposit slips as mentioned in the list of deposit slips of document are Ex.PW19/A and Ex.PW19/B. FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 21 of 41
23. Dr. Ravindra Sharma, Assistant Director & Scientist C, CFSL, Bhopal was examined as PW20. He deposed that the documents of present case were received from ADCP, EOW, Crime Branch, Delhi vide memo no. 3356/R/ACP/F&C/EOW dated 06.12.2006 along with questioned and standard documents. After thorough and careful examination of the documents submitted in the laboratory for examination and comparison, he came to the conclusion which is Ex.PW20/A. The questioned documents are Ex.PW20/B, admitted documents are Ex.PW20/C and the specimen documents are Ex.PW20/D. He further deposed that some documents of present case were again received from ADCP, EOW, Crime Branch, Delhi vide memo no. 3170/R/ACP/F&C/EOW dated 11.12.2007 along with questioned and standard documents. After thorough and careful examination of the documents submitted in the laboratory for examination and comparison, he came to the conclusion which is Ex.PW20/E and the documents examined are Ex.PW20/F (colly)
24. Inspector Pankaj Arora was examined as PW21. He deposed that on 25.09.2006, the investigation of present case was marked to him. He scrutinized the case file and thereafter, FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 22 of 41 recorded the supplementary statement of complainant Sh. Ashok Parthasarthi and driver Uday Singh. After getting sufficient material against accused Rajiv Khanna, he arrested the accused on 10.10.2006 vide arrest memo already Ex.PW15/A. His body inspection and personal searche memos are already Ex.PW15/B and Ex.PW15C. He also recorded the disclosure statement of accused on 11.10.2006 which is already Ex.Pw15/D. Accused was also produced before the Court of Ld. ACMM. The Ld. ACMM granted two days PC remand of accused. During the PC remand, accused disclosed about the destruction of documents and also that some documents of Rhythm Tour and Travels were lying at his house. The same was recorded vide disclosure statement is Ex.PW21/A. Thereafter, accused took them to his house and got some documents recovered. The seizure memo of those documents is already Ex.PW14/A. He also took the specimen signatures and handwriting of accused which are Ex.PW21/F and Ex.PW21/G. On the next day, he showed the cheques number 363523, 363524, 363524, 363625, 363534, 363535, 363539, 363544,363545, 363597, 363598, 363600, 380222, 388635, 688650, 736012, 736013, 736038, 736039, 736040, 736096, FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 23 of 41 736099 and 736100 of State Bank of India, JNU Branch, Delhi which are already Ex.PW20/B (colly) to DFO/JNU Kartar Singh and after looking at the same, he stated that out of our cheques only cheque no. 363534, 736096, 736099 and 736100 bearing his signatures as well as the signature of complainant Sh. Ashok Parthasarthi but none of the abovesaid cheques bearing his signatures. Thereafter, he also collected 20 more cheques from State Bank of India which were seized vide seizure memo already Ex.PW9/B. All these cheques were shown to complainant Ashok Parthasarthi and DFO Kartar Singh and after looking at the same, they stated that only cheque no. 380243 bearing their signatures and no other cheques as mentioned in the seizure memo which were shown to both of them bearing their signatures. He also recorded statement of Sh. Manveer Sharma and Sat Prakash, Office Attendants at SPSP, JNU. During the investigation, Mrs. P. Jagannathan, AFO, JNU produced some attested documents on 01.12.2006 with respect to the funds for SPSP Project. The said letter is Ex.PW21/B and the attested copy of documents are Ex.PW21/C (colly). She also produced some documents with respect to appointment of complainant and accused and also the FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 24 of 41 confession letter of accused etc vide letter dated 02.12.2006 which is Ex.PW21/D and the attested documents are Ex.21/E (colly). He also issued notice to Sh. S. Ramanand Aiyar & Company, Chartered Accountants to produce audit report of the project of financial years ended on 31.03.2001, 31.03.2002 and 31.03.2003 and the related documents. The reply given by Mrs. Lalitha Krishnamurthy for S. Ramanand Aiyer & Company, Chartered Accountants is already Ex.PW2/B on the documents given are already Ex.PW2/A and Mark 2/C. During the further investigation, original cheque deposit vouchers in respect of cheque no. 380275 dated 02.11.2001 and cheques no. 736013, 736012, 736040, 736040, 736038 and 363525 from State Bank of Hyderabad, Kailash Colony which was of the personal account of accused. The letter of State Bank of Hyderabad are Ex.PW21/I and Ex.PW21/J and the deposit vouchers are Ex.PW21/K and Ex.PW21/L (colly). He also collected the admitted documents i.e signature card of Sh. Kartar Singh, DFO/JNU from State Bank of India, JNU Branch vide letter of State Bank of India is already Ex.PW12/B and the specimen card is Ex.PW21/M. The confession letter of accused which were addressed to complainant Sh. Ashok Parthasarthi by FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 25 of 41 accused were also collected and those letters are already Ex.PW7/A and Ex.PW7/B. He sent the questioned documents, admitted documents and specimen documents to GEQD, Chandigarh. He also prepared supplementary chargesheet after getting the result from GEQD and filed the same before Ld. ACMM.
25. The entire incriminating evidence brought on record against the accused was put to him and his statement under section 313 CrPC were recorded. It is stated by accused that he is innocent and has been falsely implicated. It is further stated that the beneficiary of the entire amount was Professor Ashok Parthasarthy. Departmental Enquiry was conducted against Ashok Parthasarthy whereby he was suspended. No Departmental Enquiry was ever conducted against him.
26. Accused examined himself as DW1. He stated that he started working with Professor Ashok Parthasarthy from the year 1987. He used his influence to join him in JNU. After three years of working under him, one day Ashok Parthasarthy called him in his chamber and asked him to collect all the records so that he can send the same to Mrs. Lalita Krishnamurthy and take the utilize certificate from her and pass it to the donors so FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 26 of 41 that they can issue the next instalment. On his instructions, he collected all the papers, cheque book, cash book, ledger etc. Then after 2-3 days, he was sent to Mrs. Lalita Krishnamurthy's office for collection of queries raised by her. Then Mrs. Lalita Krishnamurthy came to JNU and told Sh. Ashok Parthasarthy that she would issue utilization certificate in a day or so. Thereafter, he came to know that Sh. Ashok Parthssarthy had appointed someone on his post and he went back to his parent's office. Thereafter, one day he was called to the office of Sh. Ashok Parthasarthy where 4-5 persons were present who were informed him that they were from CBI. He was forcefully made to sign some typed papers which was his confessional statement. Sh. Ashok Parthasarthi threatened him if he did not sign those papers, he will lose his job. Sh. Ashok Parthasarthy also forced him to sell his house and give him money.
27. I have heard Ld. APP for the State and Ld. counsel for the accused and have also perused the judicial file carefully.
28. It is argued on behalf of accused that (a) there is a delay in lodging of FIR for which no explanation has been brought forth by the prosecution (judgment titled as State of Andhra Pradesh Vs. M. Madhusudan Rao, reported as Crl. Appeal No. FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 27 of 41 3426/2008 has been relied); (b) It is further argued that the accused was under duress and was pressurized by the authority of Ashok Parthasarthy to sign his confession letters. There was no mens rea attributed to accused for commission of the present offence judgment of Parshadi Lal Vs. State Govt. of NCT of Delhi, reported as Crl Revision Petition no. 424/2011 has been relied); (c) it is argued that no forgery has been committed by the accused. The three cheques on which the opinion of expert was sought and was found positive against the accused, the said three cheques have been deposited in the account of Sh. Ashok Parthasarthy. No wrongful gain has been caused to accused (judgment titled as Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr. reported as Crl Appeal no. 1695/2009 has been relied);
(d) no offence under section 201 IPC has been committed by accused (judgment titled as Dinesh Kumar Kalidas Patel Vs. The State of Gujarat reported as Crl No. 265-266/2018 has been relied); (e) It is further argued that it is unsafe to base conviction solely on expert opinion (judgment titled as Magan Bihari Lal Vs. State of Punjab reported as reported 1977 AIR 1091 SCR (2) 1007 has been relied).
29. Per contra, it is argued on behalf of State that the accused FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 28 of 41 has confessed to his crime. It has been held by the Hon'ble Apex Court in Ram Lal Vs. State of Himachal Pradesh reported as Crl Appeal No. 577/2010 that "Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. If the Court is satisfied that the confession is voluntarily, the conviction can be based upon the same."
30. The accused in the present case has been charged for the offence under section 406 IPC.
31. Criminal breach of trust has been defined under section 405 IPC which is laid down as under:
For the offence punishable under section 406 iPC, the following conditions are required to be fulfilled:-
(i) that the accused was entrusted with property or with dominion over it and
(ii) that he (a) misappropriated it, or (b) converted it to his own use, or (c) used it, or (d) disposed of it The gist of the offence is misappropriation done in a dishonest manner. There are two distinct parts of the said offence. The first involves the fact of entrustment, where in an obligation arises in relation to the property over which dominion or control is acquired.
FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 29 of 41 The second part deals with misappropriation which should be contrary to the terms of the obligation which is created. Thus, once it is proved that the beneficial interest in the property was vested in some other person other than the accused and the accused has held that property on behalf of that person, appropriation of that beneficial interest in the property by the accused for his own use amounts to 'criminal breach of trust'.
Misappropriation:-Dishonest misappropriation the essence of this section. Dishonesty is as defined in section 24 IPC, causing wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in section 23 IPC.
In order to constitute an offence, it is not enough to establish that the money has not been accounted for or mismanaged. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.
In the case of State of Gujarat Vs. Jaswantila Nathalal, it has been held that the government sold cement to the accused only on the condition that it will be used for construction work. However, a portion of the cement purchased was diverted to a godown. The FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 30 of 41 accused was sought to be prosecuted for criminal breach of trust. The Hon'ble Supreme Court held that the expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continue to be its owner. Further, the person handing over the property must have confidence in the person taking the property, so as to create a fiductary relationship between them. A mere transaction of sale cannot amount to an entrusetment. If the accused had violated the conditions of purchase, the only remedy is to prosecute him under law relating cement control. But no offence of criminal breach of trust was made out.
The other aspects have also been considered by the Supreme Court on numerous occasions. In 2002 SCC (Crl) 129 (S.W. Palanitkar and Ors. Vs. State of Bihar and Anr,), the Supreme Court held that " without mens rea a breach of trust may not result in criminal breach of trust. Every breach of trust may not result in penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong, in respect of which the person wronged may seek his redress for damages in a civil Court, but a breach of trust with mens rea gives rise to a criminal prosecution as well."
32. In the present case, it is alleged against the accused that he FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 31 of 41 was OSD, Special Programme of Science and Policy and the Financial Administrative Function of the project were exclusively maintained by accused Rajiv Khanna. He used to maintain record of all financial matters i.e cheque book, cash book, bank statement, vouchers etc which is come on record in the testimony of PW1 Sh. Kartar Singh. All the cheques relating to expenses were dealt by accused for the purpose of issue. This has come in the testimony of PW5 Sh. Ashok Parthasarthy.
33. Both these witnesses have though deposed that the accused was looking after the financial matters but no document has been placed on record to show that he was exclusively undertaking the financial matters.
34. Admittedly, the accused was not the authorized signatory of the account of Special Programme.
35. PW1 Sh. Kartar Singh has stated in his cross examination that his duty was countersigning the cheques which were prepared by Project Secretariat and examined by Project Cell University.
36. It has also come on record that there was a Separate Finance Officer.
FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 32 of 41
37. Once all the financial matters of Special Programme were dealt by accused then why was there a need of Separate Finance Officer stands unexplained. Accused was not authorized signatory and the sole in-charge of any of the account of the Special Programme.
38. No documentary evidence has been brought on record to prove that the money received by the Special Programme was entrusted to accused. There was a proper channel as stated by PW1 Sh. Kartar Singh through which the cheques were issued and countersigned by him.
39. Absolutely no evidence has come on record to prove that the accused was entrusted with any money of the Special Programme or that he had the dominion over the said programme.
40. Since no evidence has been led to prove the entrustment of the property, the offence under section 406 IPC cannot be said to be complete.
41. The accused has also been charged under section 468 IPC for forging and fabricating the signatures of Sh. Ashok Parthasarthy and Sh. Kartar Singh on the cheques and using the FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 33 of 41 said cheques for the purpose of cheating.
The essential ingredients of section 468 IPC are as under:-
(i) That the accused committed forgery;
(ii) That he did so intending that the document or electronic record forged shall be used for the purpose of cheating.
42. It has come on record that accused has forged signatures of Sh. Ashok Parthasarthy and Sh. Kartar Singh and Ex.PW7/P1, Ex.PW7/P2, Ex.PW7/P3 and presented the said cheques in the bank and the amount was transferred to M/s Rhythm Tour and Travels.
43. PW20 Dr. Ravinder Sharma, Assistant Director and Scientist C, CFSL, Bhopal has opined that the said three cheques have been signed by accused. The said witness has not been cross examined. Hence, his testimony remains unrebutted and uncontroverted.
44. It has been deposed by PW5 Sh. Ashok Parthasarhy that cheques were remitted to one M/s Rhythm Tour and Travels. It was revealed to him that the owner of the aforesaid M/s. Rhythm Tour and Travels was accused Rajiv Khanna. This fact FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 34 of 41 is further corroborated with the testimony of PW7 K. Murgesh. The accused has not denied his connect with M/s. Rhythm Tour and Travels as it is not suggested to either of two prosecution witnesses that he was not the owner of M/s Rhythm Tour and Travels. The confessional statement admitting his guilt with regard to forgery of the aforesaid three cheques is letter Ex.PW7/A. The accused not only confessed to his guilt but also deposited the said amount which was remitted in the account of M/s Rhythm Tour and Travels into the account of Special Programme. The said amount was returned by way of three cheques.
45. It is argued on behalf of accused that the said confessional statement was made under pressure from Sh. Ashok Parthasarthy. However, no such suggestion has been given to either PW5 Sh. Ashok Parthasarthy or to PW7 K. Murgesh. Once the said defence has not been taken by accused at the initial stage, the said defence is not available to the accused at the stage of argument.
46. For the first time, the said defence was taken by accused in his deposition under section 315 Cr.PC. Law is settled in this regard that the foundation of the defence of any accused is FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 35 of 41 required to be laid down during the course of cross examination of prosecution witnesses. The defence of the accused must be suggested to the prosecution witnesses during the course of their cross examination. In case a new line of defence, is sought to be introduced during the course of defence evidence or statement under section 313 Cr.P.C., whose foundation has not been laid during the course of cross examination of the prosecution witnesses, such defence cannot be accorded much credibility and viability. Reference may be made to the judgement titled as Ranbir Singh v. State of Haryana, reported as 2000(3) R.C.R.(Criminal) 158 (P&H) wherein it was observed:
".....7. Some defence witnesses had been examined so as to indicate that the version of the petitioner is correct that he was not driving the vehicle rashlyand negligently. But this was entirely a new case that had been set up. It had never been so suggested to the witnesses of the prosecution. It was clearly an after-thought and thus the defence was rightly rejected...."
47. It has also been held in judgment in Ram Lal Vs. State of Himachal Pradesh reported as Crl Appeal No. 577/2010 that FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 36 of 41 "Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. If the Court is satisfied that the confession is voluntarily, the conviction can be based upon the same"
48. From the evidence so brought on record, it stands proved that the accused has forged the signatures of PW5 Sh. Ashok Parthasarthy and Sh. Kartar Singh on the cheques Ex.PW7/P1 to Ex.PW7/P3 and used the said cheques in the bank and has induced the bank to credit the amount of the cheque in the account of M/s Rhythm Tour and Travels from the account of Special Programme. Hence, the accused has committed forgery for the purpose of cheating the bank and has caused a wrongful gain to himself.
49. The accused has also been charged with the offence under section 471 IPC for fraudulently and dishonestly using the forged cheques knowing the same to be forged.
50. Counsel for accused has relied upon judgment of Mohd.
Mohd. Ibrahim Vs. State of Bihar (2009) 8 SCC 751 wherein it was held by the Court that "In short, a person is said to have made a 'false document', if (I) he made or executed a document FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 37 of 41 claiming to be someone else or authorized by someone else; or
(ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses"
51. It has come on record that the accused had forged the signatures of Ashok Parthasarthy and Kartar Singh on the cheques Ex.PW20/B (colly). PW20 Dr. Ravinder Sharma has opined that the accused has forged the signatures of the authorized signatories of Special Programme. The said witness has not been cross examined. Hence, his testimony remains unrebutted and uncontroverted.
52. Both PW5 Sh. Ashok Parthasarthy and PW1 Sh. Kartar Singh have denied their signatures on cheques Ex.PW20/B (colly). PW20 Dr. Ravinder Sharma has opined that the said cheques have not been signed by PW1 Sh. Kartar Singh and PW5 Sh. Ashok Parthasarthy. The said cheques as per opinion of PW20 Dr. Ravinder Sharma have been signed by the accused.
53. It has also been testified by PW3 Sh. Manbir Sharma and PW4 Sh. Sat Prakash that cheque Ex.PW3/A was handed over FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 38 of 41 to him by the accused for encashment. After encashing the cheque, the money was handed over to the accused. It is also deposed by PW4 Sh. Sat Prakash that he was handed over a bearer cheque Ex.PW4/A with an authorization of encashment of the cheque. He withdrew the money and handed over the same to the accused.
54. The accused issued a cheque claiming to be Sh. Ashok Parthasarthy and Sh. Kartar Singh and got the amount transferred to account of M/s. Rhythm Tour and Travels.
55. It has been proved on record that the accused committed forgery and used the forged cheques in the bank knowing fully well that the same are not genuine and thereby committed an offence under section 471 IPC.
56. The accused has also been charged with the offence under section 201 IPC for destroying the forged/fabricated vouchers of bills.
57. PW2 Mrs. Lalita Krishnamurthy audited the accounts of Special Programme in December, 2003. She did not depose that any bills or vouchers were found missing from the records. She only testified that several irregularities were found in the FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 39 of 41 records during audit.
58. PW6 Sh. Krishna Kumar Kuba audited the accounts of Special Programme from 2000 to 2005. Even the said witness did not depose that any of the accounts were destroyed or were found missing.
59. PW21 Inspector Pankaj Arora deposed that during PC remand accused disclosed about the destruction of documents. The disclosure statement cannot be read in evidence. There is no corroboratory evidence to substantiate the allegations of documents being destroyed by accused.
60. The prosecution has failed to prove that any of the documents were destroyed by the accused.
61. As far as argument of accused on delay in filing FIR is concerned, it is settled proposition of law that delay is not always fatal to the case of prosecution. As far as judgment in M. Madhusudan Rao (supra) is concerned, the same is distinguishable on the facts.
62. From the aforesaid discussion, it is established on record that the prosecution has succeeded in proving the offence under section 468/471 IPC against accused beyond reasonable doubt FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 40 of 41 and he is accordingly convicted for the said offence. However, the prosecution has failed to prove the offence under section 406/201 IPC against accused for which he is acquitted.
63. Copy of judgment be given to convict free of cost.
Announced in the open
Court on 29.10.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 41 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 485/2004 PS Vasant Vihar (EOW) Page- 41 of 41