Delhi District Court
State vs . Ravinder Kumar Tripathi on 16 September, 2013
FIR No. 118/98 S/V Ravinder Kr. Tripathi IN THE COURT OF SH. D.K.JANGALA: ACMM/NW/ROHINI COURTS/DELHI State Vs. Ravinder Kumar Tripathi FIR No. 118/98 U/S 408/468/477A IPC PS: Keshav Puram Case ID No. 02404R0190772009 JUDGEMENT
A) Sl. No. of the case : 80/2
B) The date of commission : 04.03.2009
of offence
C) The name of the complainant : Sh. Mohinder Gupta
D) The name & address of accused : Ravinder Kumar Tripathi S/O Sh.
Ram Karan Tripathi R/O 258/E/1
Shastri Marg, East Babar Pur,
Delhi.
E) Offence complained of : U/S 408/468/477A IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Convicted
H) The date of such order : 16.09.13
Date of Institution : 20.01.2006
Judgment reserved on : 05.09.2013
Judgment announced on: 16.09.2013
THE BRIEF REASONS FOR THE JUDGEMENT:
1. The present FIR was registered on 01.05.98 on the written complaint lodged Page 1 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi by Sh. Mahender Gupta Director of M/S Golden Velvet & Furnishing Pvt. Ltd.
It is alleged against the accused Ravinder Kumar Tripathi that during the year 199697 while working as an Accountant for M/S Golden Velvet and Furnishing ( Pvt.) Ltd. and M/S Goldtex Furnishing Industries, and J.R. Fabrics Pvt. Ltd. he misappropriated a sum of Rs. 11,26,051/ approximately belonging to the complainant/his employer. It is further alleged that accused Ravinder Kumar Tripathi while acting as an Accountant of the complainant got a cheque bearing no. 477779 dated 05.02.98 for a sum of Rs. 1,000/ and he added the digit '5' in front of amount of Rs.1,000/ and made the same as a cheque of Rs.51,000/ and withdrawn amount of Rs.51,000/ from the bank by forging the said cheque and in the accounts of the company he has shown only a sum of Rs.1,000/ , whereas he has misappropriate the amount of Rs.50,000/. It is further alleged that vide cheque No. 420489 dated 21.08.97, cheque No. 477754 dated 08.11.98, cheque No. 477763 dated 12.12.97, cheque No. 477767 dated 30.12.97 and cheque No. 477769 dated 08.01.98 a total sum of Rs.80,000/ were withdrawn from the bank but not accounted for in the books of account. It is further alleged that Rs. 2,20,000/ drawn from the banks on account of M/S Golden Velvet and Furnishing Pvt. Ltd. by way of 14 cheques in the year 199596 and 1997 was withdrawn but the entry of only Rs. 50,000/ was entered. It is further alleged that Rs.65,000/ was withdrawn on accounts of J.R. Fabrics Pvt. Ltd. Page 2 of 36
FIR No. 118/98 S/V Ravinder Kr. Tripathi by way of cheques in the year 199697 but entry were not made in the books of account . It is alleged that further Rs.4,40,000/ were withdrawn from the accounts of M/S J.R. Fabrics Pvt Ltd. , (second unit of complainant) through 13 cheques but not accounted for in the books of accounts. It is alleged that Rs. 75,000/ were shown to have been deposited in the account of M/S J.R. Fabrics Pvt. Ltd.(second unit) on 15.05.97 but money was actually not deposited in the account. It is alleged that the accused got prepared a bank draft bearing No. 134308 in favour of DDA Housing for Rs.56,051/ on 08.11.96 and used the draft for his personal use which was got prepared from saving account No. 318 of State Bank of Bikaner and Jaipur , Lawrence Road, Delhi belonging to Sh. Jado Ram Gupta, father of the complainant , similarly a sum of Rs. 20,000/ was withdrawn vide cheque No.317416 from M/S Golden Velvet and Furnishing by forging the signature of Sh. Jado Ram Gupta for withdrawing the amount. It is alleged that the accused has committed an offence punishable U/S 408 IPC.
2. It is further alleged against the accused that during the above said period , the accused forged several cheques bearing No. 246473, 385920, 385809, 246475,317416 and 983827 drawn on State Bank of Bikaner and Jaipur, Lawrence Road, Delhi, by forging the signature of Sh. Jado Ram Gupta thereon and withdrawn the amount and committed an offence punishable U/S 468 IPC.
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FIR No. 118/98 S/V Ravinder Kr. Tripathi
3. It is further alleged against the accused that during and above said period while maintaining and preparing books of account of M/S Golden Velvet and Furnishing ( Pvt.) Ltd., M/S Goldtex Furnishing Industries and M/S J.R. Fabrics Pvt. Ltd , as Accountant, he made false entries in the books of account recording no or less amount, then the amount withdrawn from the banks and thus falsified the records and books of account of above said three companies/ firms and thereby the accused committed an offence punishable U/S 477A IPC.
4. The prosecution after completion of the investigation filed the chargesheet in the court and after completion of necessary formalities the charge for commission of the offence punishable U/S 408/468/477AIPC was framed upon the accused on 19.01.02 to which he pleaded not guilty and claimed trial.
5. The prosecution to prove its case examined 13 witnesses. The relevant and material extract of evidence produced by the prosecution are as under: PW1 Sh. Inder Pal Singh Chief Manager of the Central Bank of India deposed that on 06.07.98 he was working as Manager in the Central Bank of India, Vikas Sadan, New Delhi . He deposed that he had written a letter to the police vide which he had provided the original challan No. 004435 EX PW 1/B dated 08.11.96 by which an amount of Rs. 56051/ in the DDA Housing with the Central Bank of India on dated 11.11.96. PW1 deposed Page 4 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi that this deposit pertains to allotment of some house to Mrs. Kanta Rani . He deposed that the amount was deposited vide demand drat No. 134308 dated 08.11.96 drawn on State Bank of Bikaner and Jaipur. The opportunity for crossexamination was give to the accused and nil crossexamination was recorded.
6. PW2 ASI Davinder Kaur is the formal witness, who recorded the FIR on the basis of rukka. PW2 deposed that she recorded the FIR on 01.05.98 on the basis of rukka. The copy of the FIR is proved as EX PW 2/A .
7. PW3 Sh. Kishan Chand Gupta deposed that he applied in DDA for allotment of the flat in the name of his wife Smt. Kanta Rani and on 27.03.96 the flat was allotted by a draw. He deposed that he had deposited a sum of Rs.`10,000/ on 15.06.09 in DDA. He deposed that the initial installment of Rs. 56,051/ was not deposited by them because they could not make arrangement of the money. He deposed that he had given all the papers to Sh. T.P. Yadav Property Dealer. PW3 deposed that neither he nor his wife have deposited a sum of Rs. 56,051/ in the DDA. PW3 was shown the challan form EX PW 1/B by which a sum of Rs. 56,051/ was deposited in the name of his wife and on seeing the challan the PW3 deposed that his wife never deposited the said amount. The opportunity for cross examination was given to the accused but nil crossexamination was recorded.
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FIR No. 118/98 S/V Ravinder Kr. Tripathi
8. PW4 Sh. Naresh Gupta deposed that he was working as Statutory Auditor in M/S Golden Velvet and Furnishing Industries Pvt. Ltd. and another firm M/S J.P. Fabrics Pvt. Ltd. . PW4 deposed that the Directors of the company Sh. Mahender Gupta produced certain documents and the IO seized the same through recovery memo EX PW4/A which bears his signatures at point A. PW4 deposed that the seized documents were cash books for the year 199596, 199697 and 199798 which are EX PW 4/B to EX PW 4/L respectively. The cash book of M/S J.R. Fabrics Pvt. Ltd. is proved as EX PW 4/D. PW4 deposed that on 16.07.96 one cheque bearing No. 317444 for a sum of Rs.15,000/ was withdrawn from the State Bank of Bikaner and Jaipur but this entry is not there in the cash book. It is stated that similarly there is no entry of cheque No. 317447 dated 09.03.96 for a sum of Rs. 15,000/ in the cash book. PW4 deposed that likewise on page No.21 and 22 dated 18.10.96 there is no entry for withdrawal of Rs. 15,000/ and there is no entry of cheque No. 420414 for a sum of Rs. 15,000/ . PW4 further deposed that there is no entry of cheque No. 420441 for a sum of Rs . 10,000/ .. PW4 further deposed that accused Ravinder Kumar was working as an Accountant in the said company and the duties of the accused was to make entries of the withdrawal of the above stated amount but he did not show the same in the cash book which means that accused had misappropriated the said amount and used the same of his own use. PW4 Page 6 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi deposed that the following entries were not mentioned in the cash book/ accounts of the companies: Cheque No. Dated Amount 317444 16.07.96 Rs.15,000/ 317477 09.03.06 Rs.15,000/ 420414 18.10.96 Rs.15,000/ 420441 18.10.96 Rs.10,000/ 420467 30.05.97 Rs.10,000/ 420471 18.06.97 Rs.10,000/ 246447 06.01.96 Rs.10,000/ 246463 06.01.96 Rs.15,000/ 246475 27.01.97 Rs.20,000/ 3294 06.04.96 Rs.30,000/ 329390 28.05.96 Rs.30,000/ 385789 23.09.96 Rs.60,000/ 385742 01.10.96 Rs.30,000/ 385805 01.10.95 Rs.30,000/ 385809 29.10.96 Rs.50,000/ 385920 Rs.30,000/ 385969 25.04.97 Rs.30,000/ Page 7 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi 385973 01.05.97 Rs.30,000/ 15.05.97 Rs.75,000/ 385991 21.05.97 Rs.30,000/ 385977 29.05.97 Rs.30,000/ 456718 14.08.97 Rs.30,000/ 456623 26.09.97 Rs.30,000/ 317370 29.04.95 Rs.15,000/ 317374 29.04.95 Rs.30,000/ ( entry of only Rs.25,000/ is made) 317378 Rs.25,000/ ( entry of only Rs.20,000/ has been made) 317883 20.07.95 Rs.10,000/ 317416 15.02.96 Rs.20,000/
9. The PW4 further deposed that he was the statutory auditor of the company M/S Golden Velvet Pvt. Ltd. and M/S J.R. Fabrics Pvt. Ltd. He deposed that accused Ravinder Kumar Tripathi was the accountant in the companies . PW4 deposed that he had done the audit on the basis of bank statement , lodger and cash book which were produced before him and he submitted his report as per same. PW4 deposed that when they were doing the auditing ,they had suspicion about the embezzlement thereafter they Page 8 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi had talks with the management and obtained fresh statement. He deposed that during the course of checking from the fresh statement the above stated embezzlement of the money was discovered. He further deposed that on 11.08.98 he produced before the police the manipulated bank statement of M/S Golden Velvet Pvt. Ltd. from page 1 to 16 dated 01.04.95 to 10.04.97 which is EX PW 4/H and also the manipulated bank statement of M/S J.R. Fabrics Pvt. Ltd. from 01.04.97 to 03.02.98 containing 34 pages which is EX PW 4/J. He deposed that he produced the manipulated bank statement of M/S J R Fabrics Pvt. Ltd. dated 01.04.96 to 31.03.97 containing 45 page which is EX PW 4/K and manipulated bank statement of M/S J.R. Fabrics Pvt. Ltd. from paged 1 to 12 and same is EX PW 4/L. PW4 deposed that all the bank statements were taken into possession by the police vide EX PW 4/M which bears his signatures at point A.. The accused was granted opportunity to crossexamine the witness but despite opportunity the nil crossexamination was recorded.
10. PW5 Ct. Uttam Singh is the police official, who joined the investigation alongwith IO. The PW5 deposed that the accused surrendered himself in the court and his personal search memo EX PW 5/A was prepared. The PW5 deposed that the accused was taken into police custody and during police custody the accused made the disclosure statement EX PW 5/B. He deposed that thereafter the house of the accused was searched and the Page 9 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi search memo EX PW 5/C was prepared. PW5 further statement that the specimen handwriting and signatures on 13 sheets were obtained from the accused which are EX PW 5/D. PW5 further deposed that on 18.07.98 the specimen handwriting of Sh. Jado Ram Gupta were also obtained on five sheets which is EX PW 5/F. The accused was granted opportunity to cross examine the witness but nil crossexamination was recorded.
11. PW Sh. Mahender Gupta is wrongly mentioned as PW5 because PW5 was already examined. Therefore, for the sake of convenience the PW Sh. Mahender Gupta is considered as PW5A. PW5A deposed that he is one of the Director of M/S Golden Velvet & Furnishing Pvt.Ltd.. He deposed that the other sister concern of the complainant are Goltax Furnishing Industry and M/S J.R. Fabrics Pvt. Ltd. and all these companies were having their office at Tri Nagar. He deposed that the accused Ravinder Kumar Tripathi , present in the court , was working as an Accountant in his company since 7/8 years before the registration of this case. PW5A deposed that he was looking after the finance affairs , accounts,withdrawal and deposits from the bank on behalf of the companies and to maintain the correct accounts. PW5A deposed that in the month of February/ March at the routine audit it was found that the accused has misappropriated the funds. PW5A deposed that it is found that the cheque of Rs. 1,000/ was given to the accused for withdrawal, then he used to get it signed and subsequently add digit 5 before Page 10 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi the figure 1000/ and also by adding fifty before one thousand in alphabets and thereafter he used to withdrawn the amount of Rs.51,000/ from the bank but in the accounts he showed the withdrawal amount of Rs. 1000/ only. PW5A deposed that the accused used to withdraw the amount from State Bank of Bikaner and Jaipur at Lawrence Road. PW5A deposed that the accused also used to withdraw the amount from the bank for expenses and he used the same for his personal use or sometimes he used to show less amount in the accounts. He deposed that sometimes the accused used to mention the word " cancelled" on the counter foil of the cheque book but actually he had withdrawn the amount from the bank and used the same for his personal use. PW5A deposed that sometimes the accused used to take the cash for deposit in the bank but he did not use to deposit the same actually in the bank , however he was making the entries in the record regarding deposit.
12. PW5A further deposed that on scrutiny of the cheques from the bank statement he came to know that the accused has forged the signature of his father Sh. Jado Ram Gupta and withdrew the amount after forging signature of his father . PW5A further deposed that in one instance the accused got prepared one draft of Rs.56,000/ approximately in the name of DDA after forging the signatures of his father . PW5A deposed that the cheque books and other documents were remained in the custody of accused. He deposed Page 11 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi that he himself was the authorised signatory alongwith his father and Sh. Satish Gupta his brother. He further deposed that the accused used to obtain the signature of any particular director for any particular purpose and thereafter without disclosing the fact to other Directors he used to again obtained the signatures of other Directors on other cheques for the same purpose and in this way he used to withdraw the double amount which he has misappropriated. He further deposed that accused used to prepare the forged monthly statements to compare with the bank statements and also made forged entries in the cash book. PW5A further deposed that on finding the irregularities the accused was asked to explain but he was not able to explain and he admitted his guilt in writing, which is filed on record , the copy of the same is proved as EX PW 5A/5A. He deposed that thereafter they made complaint to the police and at that time it was detect that a cheating/ fraud of Rs. 9,26,000/ was committed by the accused.
13. PW5A further deposed that in addition to the above he came to know that the accused has withdrawn a sum of Rs.2 lacs from the account of M/S J.R. Fabrics Pvt. Ltd. by forging the signatures and he had given this additional complaint to the police which is EX PW 5/D. PW5 A further deposed that on 25.06.98 he handedover the cash books of the companies to the police which were seized by the police vide seizure memo EX PW 4/A. He deposed that on 18.07.98 the police came to them and made inquiry from his Page 12 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi father and after inquiry his father told to the police that he had not signed on cheque No. 246473 of Rs. 2 lacs dated 22.08.96 and the said amount has been withdrawn by the accused from the bank. PW5A correctly identified the cash book seized by the IO during investigation vide seizure memo EXPW 4/A. PW5A has specifically opened the page No. 15 of cash book of M/S Golden Velvet Pvt. Ltd. which is EX PW 4/C and pointed out the entry dated 05.02.98 vide which an entry of withdrawal of sum of Rs.1000/ through cheque No. 477779 was made by the accused, however accused has falsely written digit "5" before the figure 1000 in the cheque EX PW 6/1 to make the amount as Rs.51,000/ instead of Rs.1000/. Ld. Counsel for the accused sought adjournment to crossexamine the witness on 24.11.11, therefore, the crossexamination of the witness was deferred, however despite opportunity the counsel for the accused failed to crossexamine the witness, therefore, the witness was tendered for crossexamination on 30.06.12 and nil crossexamination was recorded.
14. PW6 Sh. O.P. Arora Retired Chief Manager of State Bank of Bikaner and Jaipur deposed that on 30.06.98 he was posted in Lawrence Road Branch . He deposed that he wrote a letter to the ACP Crime Branch and handedover the letter alongwith 37 cheques mentioned in the letter . The said letter is proved as EX PW 6/A and the cheques are proved as EX PW 6/1 to EX PW 6/37. An opportunity for crossexamination was given to the Page 13 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi accused but despite opportunity nil crossexamination was recorded.
15. PW7 Sh. Pankaj Sharma deposed that in the year 199596 he was Accountant in M/S Golden Velvet Pvt. Ltd and the accused Ravinder Kumar Tripathi was Accountant in the head office at Tri Nagar. PW7 deposed that he had seen the cheque No. 317370 dated 28.04.1995 for a sum of Rs. 50,000/ , cheque No. 317374 dated 05.06.1995 for a sum of Rs.30,000/, cheque No. 317378 dated 23.06.1995 for a sum of Rs. 25,000/ , and cheque No. 317383 dated 20.07.1995 for a sum of Rs.10,000/ all drawn from the account of said firms which were drawn in his favour but the same does not bear his signatures. He deposed that neither he had issued such cheques nor he had encashed the same during his service in the firm. He proved the said cheques as EX PW 7/1 to EX PW 7/4 respectively . He deposed that all the cheques bears the signatures of the accused on back side as receiver of the payment. PW7 was tendered for crossexamination but nil crossexamination was recorded.
16. PW8 Sh. Moti Ram Garg deposed that he is well conversant with the signature of Sh. Jado Ram Gupta, who was father of Sh. Mahender Gupta. PW8 deposed that the accused was an Accountant in the firm of Sh. Mahender Gupta. PW8 deposed that he came to know that some cheating has been committed by the accused. He deposed that that IO seized the cheque bearing No. 317444 dated 16.07.96 for a sum of Rs.15,000/ and Page 14 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi cheque No. 317447 dated 09.08.1996 in the sum of Rs.15,000/ which were shown to be drawn in his favour but the same does not bear his signatures as he has never been issued the said cheques. He deposed that he has never got encashed the said cheques. The said cheques are proved as EX PW 8/A and EX PW 8/B. PW8 deposed that the cheque bearing No. 317444 which shows his signature at point A on the back side of the cheque actually does not bear his signature and he never signed the same. PW8 was tendered for crossexamination but nil crossexamination was recorded.
17. PW9 Sh. Satish Gupta deposed that since the inception M/S Golden Valvet and Furnishing Pvt. Ltd. ,he was the Director in the company and Sh. Mahender Gupta his brother was also the Director . PW9 deposed that they were also running another company in the name & style of M/S J.R. Fabrics Pvt. Ltd. and accused Ravinder Kumar Tripathi was an Accountant in both the companies. PW9 deposed that the accused has committed forgery on a cheque bearing No. 477779 dated 05.09.98 which was drawn for a sum of Rs.1000/ only bears his signatures at point X, which he has signed in the capacity of Director of the company and was drawn in favour of Harish Chand Joshi, who was also Accountant in the company but accused prefixed numeral 5 before 1000 and also letter 'Fifity' before one thousand , depicting as if the cheque was issued in the sum of Rs.51,000/. PW9 deposed that the payment of Rs.1000/ was got encashed by the accused from the account Page 15 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi of the company but in the cash book he mentioned only withdrawal of Rs. 1000/ instead of Rs.51,000/. PW9 deposed that there were different transactions of which the accused got the payment by adopting the same mode of getting encashed the cheques which are as follows:
(i) Ch. No. 477779 dated 05.02.1998,
(ii) Ch. No. 420489 dated 20.08.1997,
(iii) Ch. No. 477763 dated 11.12.1997
(iv) Ch. No. 477767 dated 29.12.1997,
(v) Ch. No. 420484 dated 06.08.1997,
(vi) Ch. No. 246463 dated 18.03.1996,
(vii) Ch. No. 436311 dated 20.10.1997,
(viii) Ch. No. 456623 dated 26.09.1997 , all in favour of Harish Chand Joshi.
(ix) Ch. No. 317370 dated 28.04.1995,
(x) Ch. No. 317374 dated 05.06.1995,
(xi) Ch. No. 317378 dated 23.06.1995,
(xii) Ch. No. 317383 dated 20.07.1995, all in favour of Pankaj Sharma
(xiii) Ch. No. 316444 dated 16.07.1996,
(xiv) Ch. No. 317447 dated 09.08.1996, both in favour of Moti Ram Garg,
(xv) Ch. No. 420414 dated 22.11.1996 in favour of Sanjay Mitra, (xvi) Ch. No. 420441 dated 26.03.1997, (xvii) Ch. No. 420459 dated 05.05.97, Page 16 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi (xviii) Ch. No. 420471 dated 17.06.1997, all in favour of accused Ravinder Kr. Tripathi (xix) Ch. No. 385969 dated 25..04.1997 in favour of Sh. J.C. Batra. ( All cheques bears the signature of PW9 at point X in the capacity of Director of the company).
PW9 deposed that the entries regarding the above cheques were not mentioned in the cash books except the false entry regarding cheque No. 477779 . He deposed that no entry has been made regarding above cheques. The PW9 was tendered for crossexamination but nil cross examination was recorded.
18. PW10 Sh. S.S. Sukhija retired Bank Manager of State Bank of Bikaner and Jaipur, deposed that in the month of July the police came in the bank and made enquiry regarding Rs.2 lacs cheque dated 23.08.1996.PW10 deposed that he gave written reply regarding the said cheque to the police and also handedover the said cheque to them. PW10 proved his written reply as EX PW 10/A which bears his signatures at point A. During cross examination by Ld. Legal Aid Counsel the PW10 stated that he did not remember the date when police came to the bank and made enquiry from him in connection with this case. PW10 stated that two police officials came to the bank and both were in uniform.
19. PW11 Retired Inspector R.L. Gulati is the Investigating Officer of the case . Page 17 of 36
FIR No. 118/98 S/V Ravinder Kr. Tripathi PW11 deposed that on 01.05.98 he was posted as S.I. At EOW Cell, CBT Section, Crime Branch. He deposed that one complaint of Sh. Mahender Gupta was received in the office of Crime Branch , which was marked to him. He deposed that he made endorsement on the complaint and handedover the rukka to Ct. Joginder Singh for registration of the complaint. PW11 deposed that during investigation he seized the accounts books, cash books and recorded the statement of witnesses. PW11 deposed that he visited the State Bank of Bikaner and Jaipur and obtained the relevant records. PW11 deposed that on 15.07.98 the accused surrendered himself in the court , thereafter he was arrested vide vide memo EX PE 11/C. PW11 deposed that the accused made disclosure statement EX PW 11/E. PW11 deposed that the police custody remand of the accused was obtained but nothing was recovered at the instance of the accused during police custody remand. PW11 deposed that he obtained the hand writing of the accused on 13 sheets on 17.07.98, which are EX PW 5/D and also obtained the specimen handwriting and signature of Sh. Jado Ram Gupta on 5 sheets which are EX PW 5/F which bears his signatures at point A. He deposed that he deposited the questioned documents consisting of cheques and the specimen handwritings and signature of accused as well as of Sh. Joda Ram with FSL, Malviya Nagar for expert opinion. PW11 deposed that after completion of investigation he filed the charge sheet in the court . An Page 18 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi opportunity for crossexamination was given to the accused but despite opportunity nil crossexamination was recorded.
20. PW12 Smt. Deepa Verma Deputy Director, FSL Rohini deposed that on 21.08.98 he was posted as Senior Scientific Officer ( Documents), FSL Malviya Nagar. PW12 deposed that on that day some documents were marked to her for examination. She deposed that she examined the document Q1 to Q32, S1 to S13, S14 to S18 and A1 to A9 with the help of necessary instruments. She deposed that she opined that the writing on questioned documents marked Q1 to Q8 which were the entries in the cash book matched with the specimen writings on the sheets mark S1 to S13 i.e. of R.K. Tripathi. She deposed that she also opined that the specimen writing and signature and admitted signature marked as S14 to S18 and A1 to A9 were not matching with questioned signature marked as Q18 to Q32 , therefore, it was clear that Sh. Jado Ra, Gupta did not sign the questioned documents marked Q18 to Q32. PW13 proved her detailed report as EX PW 12/A. An opportunity for crossexamination was given to the accused but despite opportunity nil crossexamination was recorded.
21. Statement of accused Ravinder Kumar Tripathi was recorded U/S 313 CrPC, whereby the accused denied the story of the prosecution. It is submitted by the accused that he used to work as an Accountant in M/S Goltex Furnishing Industry . However, it is denied that he was also working as an Accountant of Page 19 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi other two companies M/S Golden Velvet Furnishing Pvt. Ltd. and M/S J.R. Fabrics Pvt. Ltd. It is stated that the complainant pressurized him to write a letter to admit his guilt. It is admitted by the accused that his hand writing appeared in the cash book is matched with the specimen handwriting as the cash books were written by him. It is stated by the accused that the cheque bearing No. 477779 dated 05.02.98 was drawn for an amount of Rs. 51,000/. However, on the direction of the complainant he made an entry of Rs. 1,000/ only in the cash book. The accused further stated that the complainant stated that he would give further directions for making an entry of Rs.51,000/ but he did not give any further entiry in this regard, therefore, he made entry of Rs.1,000/ only. It is stated by the accused that he is innocent and falsely implicated in the present case. It is stated that the complainant arranged Rs.5 crore foreign currency under immunity scheme of Govt. so that he would exempt from tax . It is stated that, however a raid was conducted by Income Tax Department on the firms of the complainant , therefore, he made false complaint against the accused because he was having suspicion that raid was conducted by Income Tax Department at his instance.
22. I have carefully perused the material on record and have gone through the submissions of Ld. APP for the state Ld. Counsel for the accused.
23. It is submitted by Ld. APP for the state that in the present case sufficient Page 20 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi incriminating evidence has come on record to convict the accused for commission of the alleged offence. It is submitted that in the present case the testimony of the prosecution witness remained unrebutted and unchallenged and even the accused in his statement recorded has admitted the story of the prosecution . It is submitted that the explanation furnished by the accused in his statement is not satisfactory and does not inspire any confidence as no evidence has been led by the accused in support of his defence. It is submitted by Ld. Counsel for the accused that in the present case the testimony of the public witnesses , documentary evidence i.e. cash books, bank statement ,the cheque books, and the result of FSL examination are clinching evidence to bring home the guilt of the accused. It is prayed that the accused may kindly be convicted for commission of the alleged offence.
24. On the other hand it is submitted by Ld. Counsel for the accused that the accused is falsely implicated in the present case and he has nothing to do with the commission of offence. It is submitted by the Ld. Counsel for the accused that there was an income tax raid on the firms of the complainant, therefore, he made a false complaint against the accused as the complainant was having suspicion that the raids were conducted by the Income Tax department at his instance. In the written arguments it is stated that PW7 Sh. Pankaj Sharma did not support the story of the prosecution. It Page 21 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi is further stated that PW8 Sh. Moti Ram has deposed that that he came to know that the cheating has been committed by the accused during the period 199596, whereas the complaint was made only on 26.03.98, which shows that the story of the complainant is false. It is submitted that the IO has not fairly investigated the case and he was under influence of the complainant. It is also submitted that the FSL report is not complete because it was given on the basis of specimen signatures obtained by the IO and in the FSL report is is mentioned that it is not possible to express the definite opinion on the rest of items. It is submitted that there is contradictory statement of the witnesses and the complaint lodged by the complainant is motivated and false, therefore, accused may kindly be acquitted for commission of the alleged offence.
25. In the present case the accused has been represented by his counsel through out the trial but for the reasons best known to them, the counsel for the accused choose not to crossexamine any of the prosecution witnesses except PW10. The matter was pending since the year 1998, but at the time of final arguments on 13.09.2002 the accused moved an application U/S 311 CrPC to recall all the prosecution witnesses for their crossexamination which was dismissed by this court on 13.09.12 . Thereafter the accused filed a revision petition against the said order on the ground that his counsel could not crossexamine the witnesses. Ld. Sessions court in its detail order dated Page 22 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi 09.04.13 has observed that ," the manner in which the Revisionist has played with the legal process for last more than a decade and has been causing harassment to the public witnesses by repeatedly not cross examining them on one pretext or other does not entitle him to any indulgence from this Court." With these observations the revision petition filed by the accused Ravinder Kumar Tripathi was dismissed by the Ld. Sessions Court.
26. In the present case it is submitted by Ld. Counsel for the accused that the accused is falsely implicated in the present case and he has nothing to do with the commission of the offence. It is submitted by Ld. Counsel for the accused that there was an income tax raid on the firms of the complainant for which the complainant was having suspicion upon the accused and therefore, the accused is falsely implicated in the present case. The accused in his statement recorded U/S 313 CrPC has raised his defence but neither any witness to prove this defence is examined by the accused nor the accused himself came in the witness box. Even the accused has not produced any documentary evidence to corroborate his defence. The submissions of the accused in the statement recorded U/S 313 CrPC are not sufficient to throw the case of the prosecution without producing any cogent material to rely upon the defence raised by the accused.
27. It is further submitted by the Ld. Counsel for the accused that there is Page 23 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi contradiction in the testimony of PW7 Sh. Pankaj Sharma and PW8 Sh. Moti Ram Garg. In the present case both the PWs have supported the story of the prosecution on material counts . Even though there are some minor contradictions in their testimonies regarding the date of offence but the same is not going to affect their testimony. The minor contradictions which are not affecting material aspect is not sufficient to impare credit of a witness . Therefore, in the present case the minor contradiction in the testimony of PW7 and PW8 are not fatal for the case of the prosecution. On this issue I have relied upon one judgment of Hon'ble Supreme Cout reported as Rammi @ Rameshwar Vs. State of Madhya Pradesh , AIR 1999 ( SC) 3544, wherein, the Hon'ble Supreme Court has held that: " Criminal trial Discrepancies in statements of witnesses True witness and untrue witness - when an eye witness is examined at length it is quite possible for him to make some discrepancies No true witness can possibly escape from making some discrepant details.
Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant".
28. It is further submitted by Ld. Counsel for the accused that the IO has not fairly investigated the case and he was under the influence of the complainant. The counsel for the accused has failed to disclose any specific ground on which the case was not properly investigated . The counsel for the Page 24 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi accused has not produced any material regarding the biased investigation .It is also pertinent to mention that till the final arguments the accused never raised this argument during the pendency of the case for such a long period. It is further submitted by the Ld.counsel for the accused that the FSL report is not complete , therefore, no reliance can be placed on same. In the present case the FSL report is conclusive regarding the signature of accused on the cheques. Even though it is reported in the FSL report that it is not possible to give opinion on the remaining exhibits but that does not make the FSL result inadmissible. Therefore, this contention of Ld. Counsel for the accused is not tenable in the eyes of law as only the FSL result remains inconclusive regarding the items mentioned in para No.3 of the report but is was conclusive on point No.1 and 2.
29.In the present case the accused is charged for commission of the offence punishable U/S 408/468/477A IPC. At this stage I have perused the provision of Section 408 IPC which reads as under: " 408. Criminal breach of trust by clerk of servant Whoever , being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment or either description for a terms which may extend to seven years, and shall also be liable to fine".
Page 25 of 36
FIR No. 118/98 S/V Ravinder Kr. Tripathi The essential ingredients of Section 408 IPC are as under: "1. Accused was a clerk or servant.
2. In such capacity accused was entrusted with certain property or had domain over that property which was not his own:
3. Accused committed criminal breach of trust in respect of such property".
30. The accused is charged for commission of the offence punishable U/S 408 IPC. PW5A Sh. Mahender Gupta is the complainant in the present case. PW5 A Sh. Mahender Gupta deposed that he is one of the Director of M/S Golden Velvet & Furnishing Pvt. Ltd and M/S J R Fabrics. PW5A deposed that accused Ravinder Kumar Tripathi was working as an Accountant in his companies since 7/8 years. PW5A deposed that the accused has misappropriated a sum of Rs.11,26,051/ approximately while working as an Accountant for M/S Golden Velvet & Furnishing Pvt. Ltd, M/S Goltex Furnishing Industry and M/S J R Fabrics. . PW4 Sh Naresh Gupta also deposed that the accused was working as an Accountant in the said companies. PW7 Sh. Pankaj Sharma also deposed that accused was working as an Accountant . PW7 and PW8 have also deposed that accused was working as an Accountant. PW9 Sh. Satish Gupta Director of the said company has deposed that the accused was working as an Accountant in Page 26 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi their companies. All the witnesses deposed that the accused was working as an Accountant in the companies of the complainant. Even though the accused in his statement U/S 313 CrPC denied his working in Golden Velvet & Furnishing Pvt.Ltd and M/S J R Fabrics. However, unrebutted testimony of the witnesses makes it clear that the accused was working as an Accountant in M/S Golden Velvet & Furnishing Pvt. Ltd and M/S J.R. Fabrics Pvt. Ltd.
31. PW4 Sh. Naresh Gupta is the statutory auditor of the companies, who deposed that the accused has misappropriated the account of company. PW4 has deposed that the accused did not make the entries of withdrawal of the amounts and he did not show the same in the cash book and used the same for his own use. PW4 has disclosed the entries in his deposition which are not mentioned in the cash books/ account books of the companies. PW4 has also disclosed from the entries wherein the lesser amount to the actual amount were entered in the accounts book by the accused. PW4 has also proved the cash books/ account books of the company as EX PW 4/B to EX PW 4/L. PW4 has also deposed that the said account books/ cash books of the company were seized by the IO vide seizure memo EX PW 4/A which bears his signatures. PW4 deposed that during audit they had suspicion to the embezzlement and after discussions with the management the fresh statements of account were obtained. PW4 further deposed that from the cross checking with the fresh statement the above said embezzlement of the Page 27 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi money was discovered. PW5A Sh. Mahender Gupta has also deposed that the accused has misappropriated the amount of company as he has not entered the withdrawal amount in the account books of the company. The complainant/ PW5A Sh. Mahender Gupta has also deposed that the accused has withdrawn the amount in his name by mentioning his name but infact neither any cheques were issued to him nor he has got the said cheques encashed . PW7 deposed that the cheques EX PW 7/1 to EX PW 7/4 which bears his for signatures and he has wrongly been shown as receiver of the payment.
32. PW8 has also deposed that he never withdrew the amount of Rs.51,000/ against the cheque No. 317444 which is shown to be withdrawn by him.PW8 deposed that the said cheques does not bear his signatures. PW9 is the Director of the company and he also deposed that the accused has misappropriated the amount of company for his own use. PW1 and PW3 are the witnesses to show that the accused has used/ misappropriated the amount for his own use.
33. In the present case none of the prosecution witness was crossexamined, therefore, the testimony of all the witnesses remained unrebutted and unchallenged. Unrebutted testimony means admission on the part of the accused regarding deposition of the witnesses. There is no other reason to disbelieve the testimony of prosecution witnesses. The prosecution Page 28 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi witnesses have corroborated the testimony of each other. The accused has failed to give any plausible explanation regarding the story of prosecution in his examination U/S 313 CrPC. The accused has not examined any witness to prove his defence or to rebut the story of the prosecution
34. Therefore, in view of the above discussions, I am of the considered opinion that the prosecution is able to prove beyond reasonable doubt that the accused Ravinder Kumar Tripathi while working as an Accountant in the companies namely M/S Golden Velvet & Furnishing Pvt. Ltd., M/S Goltex Furnishing Industry and M/S J.R. Fabrics entrusted with the cash amount/ cheques and cash books of the companies and the accused has withdrawn various amounts from the bank but has not reflected the same in the account books of the companies and used the said withdrawn amounts for his personal use. Therefore, all the ingredients for commission of the offence punishable U/S 408 IPC stands proved by the prosecution beyond reasonable doubt. Accordingly accused Ravinder Kumar Tripathi is convicted for commission of the offence punishable U/S 408 IPC.
35. Now, I will proceed to examine the case of prosecution for commission of the offence punishable U/S 468 IPC against the accused. I have perused the provision of section 468 IPC which is reproduced as under: " Section 468. Forgery for purpose of cheating.: Whoever commits forgery, intending that the [document Page 29 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to sever years, and shall also be liable to fine.
The essential ingredients of Section 468 IPC are as under: "(1) Accused committed forgery' (2) He did so by preparation of a forged document or electronic record in the manner provided in section 463 and 464"
36. The case of the prosecution is that the accused Ravinder Kumar Tripathi while working as an Accountant in the companies of the complainant forged several cheques bearing No. 246473, 385920, 385809, 246475,317416 and 983827 drawn on State Bank of Bikaner and Jaipur, Lawrence Road, Delhi by forging the signature of Sh. Jado Ram Gupta father of the complainant, on the cheques . It is alleged that the accused has withdrawn the amount from the bank by forging the signature of Sh. Jado Ram Gupta. The PW5A Sh. Mahender Gupta deposed that on scrutiny of the bank statement he came to know that the accused has forged the signature of his father Sh. Jado Ram Gupta and withdrew the amount from the bank. PW5A also deposed that the accused admitted his guilt in writing which is placed on record as EX PW 5A/5A. PW5A also deposed that he came to know that in addition to these cheques the accused has withdrew a sum of Rs.2,00,000/ from the account of M/S J.R. Fabrics Pvt. Ltd. by forging the signature of his father. PW5A has Page 30 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi also deposed that the accused has added the digit '5' in the cheque EX PW 6/1 to make an amount of Rs.51,000/ instead of Rs.1,000/. The said original cheque bearing No. 477779 EX PW6/1 was placed on record by PW6 Sh. O.P. Arora. PW9 Sh.Satish Gupta has also deposed that the accused has committed the forgery in the cheque bearing No. 477779 by adding the digit '5' in front of Rs.1,000/.
37. In the present case the PW12 Ms. Deepa Verma Deputy Director FSL has proved her report as EX PW 12/A. PW12 deposed that on examination of all material she gave the opinion that Sh. Jado Ram Gupta did not sign the questioned documents mark Q18 to Q32. The documents mark Q18 to Q32 are the signatures on the cheques bearing No. 246473, 385920, 385809, 246475,317416 and 983827. The testimony of the handwriting expert makes it clear that the signatures of Sh. Jado Ram Gupta on the cheques in dispute are forged. PW5A Sh. Mahender Gupta and PW9 Sh. Satish Gupta have deposed that the accused has entered the digit '5' in front of amount of Rs.1,000/,whereby made the cheque of Rs.1,000/ as Rs. 51,000/. The said cheque is EX PW 6/1.
38. Therefore, on the basis of testimony of PW5A Sh. Mahender Gupta, PW9 Sh. Satish Gupta and PW12 Smt. Deepa Verma - Deputy Director FSL/ the prosecution is able to prove that the accused has committed the act of forgery by preparation of forged cheque bearing No. 477779 dated 05.09.98 Page 31 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi EX PW 6/1 and other cheques bearing No. 246473, 385920, 385809, 246475,317416 and 983827 drawn on State Bank of Bikaner and Jaipur, Lawrence Road, Delhi. PW7 Sh. Pankaj Sharma and PW8 Sh. Moti Ram Garg have also deposed that they have not signed the cheques EX PW 7/1 to EX PW 7/4 and EX PW 8/A and EX PW 8/B. The amount against these cheques were withdrawn by the accused which led to the presumption that the accused has forged their signature on these cheques .
39. In the present case none of the prosecution witness was crossexamination, therefore, the testimony of all the witnesses remained unrebutted and unchallenged. Unrebutted testimony means admission on the part of the accused regarding deposition of the witnesses. There is no other reason to disbelieve the testimony of prosecution witnesses. The prosecution witnesses have corroborated the testimony of each other. The accused has failed to give any plausible explanation regarding the story of prosecution in his examination U/S 313 CrPC. The accused has not examined any witness to prove his defence or to rebut the story of the prosecution. Therefore, all the ingredients for commission of the offence punishable U/S 468 IPC stands proved by the prosecution beyond reasonable doubt. Accordingly accused Ravinder Kumar Tripathi is convicted for commission of the offence punishable U/S 468IPC.
40. Now, I will proceed to examine the case of the prosecution for commission of Page 32 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi the offence punishable U/S 477A IPC against the accused . The provision of Section 477 A IPC is reproduced as under: " 477A. Falsification of accounts Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer, or servant, wilfully , and with intent to defraud, destroys, alters, mutilates or falsifies any {book, electronic record, paper, writing}, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such { book, electronic record, paper, writing}, valuable security or account, shall be punished with imprisonment of either description for a terms which may extend to sever years, or with fine, or with both".
The essential ingredients of Section 477A are as under : "1. The accused was a clerk or officer or servant employed or acting in such capacity:
2. He while acting wilfully or with intent to defraud:
(a) destroyed, altered, mutilated or falsified any book electronic record, paper, writing , valuable security or account belonging to or in possession of his employer or which has been received by him on behalf of the employer;
(b) made or abetted to making of any false entry in or omitted or altered or abetted the omission or alternation of any material particularly from or in any Page 33 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi such book, paper,electronic record, writing, valuable security or account".
41. The prosecution has already proved that the accused was an Accountant in the companies namely M/S Golden Velvet & Furnishing Pvt. Ltd. , M/S Goltex Furnishing Industry and M/S J.R. Fabrics. PW4 Sh. Naresh Gupta has disclosed the entries which were not mentioned in the accounts/ cash books of the companies. The PW4 has also proved on record the account books of the companies as EX PW 4/B to EX PW 4/L for the relevant period. PW4 deposed that while doing the auditing he has suspicion to the embezzlement and he obtained the fresh statement. PW4 has proved the manipulated bank statement of M/S Golden Velvet & Furnishing Pvt. Ltd. from page 1 to 16 dated 01.04.95 to 10.04.97 as EX PW 4/H and also manipulate bank statement of M/S J.R. Fabrics Pvt. Ltd. from 01.04.97 to 03.02.98 as EX PW 4/J. PW4 has also proved the manipulated bank statement of M/S J.R. Fabrics Pvt. Ltd. dated 01.04.96 to 31.03.97 as EX PW 4/K . PW4 further proved the manipulated bank statement of M/S J.R. Fabrics Pvt. Ltd. as EX PW 4/L. The PW4 has deposed that the accused has manipulated and falsified the bank statement and prepared the false statement to defraud the complainant companies. PW5A Sh. Mahender Gupta and PW9 Sh. Satish Gupta have deposed that the accused has prepared and manipulated the bank statement and also prepared the false account of the companies. Both Page 34 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi the PWs have deposed that the accused has falsified the account to defraud them. PW12 Smt. Deepa Verma - Deputy Director FSL has proved her report as EX PW 12/A which proved that the bank statement bears the signatures of the accused. The handwriting of the accused on the manipulated bank statements are proved by the PW12. In the present case none of the prosecution witness was crossexamined, therefore, the testimony of all the witnesses remained unrebutted and unchallenged. Unrebutted testimony means admission on the part of the accused regarding deposition of the witnesses. There is no other reason to disbelieve the testimony of prosecution witnesses. The prosecution witnesses have corroborated the testimony of each other. The accused has failed to give any plausible explanation regarding the story of prosecution in his examination U/S 313 CrPC. The accused has not examined any witness to prove his defence or to rebut the story of the prosecution. Therefore, all the ingredients for commission of the offence punishable U/S 477A IPC stands proved by the prosecution. Accordingly accused Ravinder Kumar Tripathi is convicted for commission of the offence punishable U/S 477AIPC.
42. Therefore, in view of the above discussions, I am of the considered opinion that the accused Ravinder Kumar Tripathi has committed the offence punishable U/S 408/468/477A IPC. Therefore, accused Ravinder Kumar Tripathi is convicted for commission punishable U/S Page 35 of 36 FIR No. 118/98 S/V Ravinder Kr. Tripathi 408/468/477A IPC.
Let he be heard on the point of sentence on 26.09.13.
Announced in the open court ( Devender Kumar Jangala)
on 16.09.13 ACMM ( N/W): Rohini Courts: Delhi
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