Delhi District Court
State vs . Nand Kishore And Others on 18 August, 2023
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 2032686/2016
STATE vs. NAND KISHORE AND OTHERS
State vs. Nand Kishore and others
FIR No. 17/2009
Police Station : Saket
Under Section : 420/467/468/471/381/120B IPC
Date of institution : 02.02.2011
Date of reserving : 28.04.2023
Date of pronouncement : 18.08.2023
JUDGMENT
a) Serial number of the case : 2032686/2016
b) Date of commission of : Unknown date prior to 25.08.2008 offence
c) Name of the complainant : Pravin Agarwal
d) Name, parentage and : i) Nand Kishore S/o Sh. Ram address of the accused Chander R/o H. No. W-55, Prem persons Nagar-II, Nangloi, New Delhi.
ii) Ansh Sharma S/o Sh. Ashok Sharma R/o Villa No. 8, Solitaire Villa, Nurem, Goa.
iii) Vinay Garg S/o Sh. Prem Chand Garg R/o H. No. RZB/121 A/1, Gurudwara Road, Mahabir Enclave, New Delhi.
iv) Anil Kumar Sharma S/o Sh.
Prabhu Dayal Sharma R/o H. No. State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 1 of 30 JB-23F, LIG Flats, Hari Enclave, Hari Nagar, New Delhi.
v) Sunil Kumar S/o Sh. Bhagwan Das R/o H. No. D-1155, Jaitpur Part II, Badarpur, New Delhi.
e) Offence complained of : 420/467/468/471/381/120B IPC f) Plea of accused persons : Accused persons pleaded not guilty g) Final order : Acquittal h) Date of final order : 18.08.2023 BRIEF STATEMENT OF FACTS FOR THE DECISION CASE OF THE PROSECUTION
1. It is the case of the prosecution that accused persons entered into a criminal conspiracy to forge and misuse the cheques of the complainant. It is alleged that accused Sunil dishonestly took away two blank cheques bearing Nos. 403974 and 403975 (hereinafter "the impugned cheques") of Ms. Leena Aggarwal, wife of complainant Sh. Pravin Agarwal, from her house without her consent, while he was employed in the capacity of a servant. He handed over the said blank cheques along with a signed document of the complainant to accused Vinay. Accused Vinay got the signatures of the complainant forged on the stolen cheques by one Ajay in Dwarka who was an expert forger. Then accused Vinay handed over one signed cheque of the complainant to accused Anil Sharma who opened a bank account for accused Nand Kishore and deposited the cheque for an amount of Rs. 3,20,000 into his bank State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 2 of 30 account. Subsequently, money was withdrawn from accused Nand Kishore's bank account and amount was divided equally by both of them (i.e. accused Nand Kishore and accused Anil Sharma). An amount of Rs. 1.5 Lakh was recovered at the instance of accused Nand Kishore. Similarly, accused Vinay handed over the other cheque (with signatures forged by Ajay) to accused Ansh who filled the other particulars of the cheque and transferred an amount of Rs. 1,05,000 from the bank account of the complainant. Thereafter, he withdrew the said amount and gave Rs. 50,000 to accused Vinay Garg. In this background, it is alleged that accused persons committed offences punishable under Sections 420/467/468/471/ 381/120B of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC").
CHARGE
2. Vide order dated 29.06.2016, charge for the offences punishable under Sections 420/467/468/471/381/120B IPC was framed against the accused persons, who pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. Prosecution has examined fourteen witnesses i.e. PW1 Sh. Pravin Agarwal (the complainant), PW2 Smt. Leena Agarwal, PW3 Sh. Sujit Jha, PW4 Sh. Deepak Singh, PW5 Sh. Pradeep Kumar Das, PW6 Mohd. Imran, PW7 ASI Ravinder Singh, PW8 Sh. Sunil Kumar, PW9 Sh. Krishan Sharma, PW10 Sh. Vishnu Dayal, PW11 State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 3 of 30 SI Devender Singh, PW12 Inspector Dalip Kumar [the investigating officer (IO)], PW13 ASI Rupkishor and PW14 Dr. Sarita Sharma.
4. PW1 Sh. Pravin Agarwal deposed that in August 2008, somebody had withdrawn an amount of Rs.1,05,000/- and Rs.3,20,000/- from his wife's account by forging two cheques. His wife, namely, Ms. Leena Agarwal had maintained savings bank account in Standard Charted Bank, Saket Branch. On receiving the bank statement, they came to know that the said amounts had been withdrawn by someone by forging two cheques. Thereafter, they visited the bank and enquired the matter. The bank officials told them that the said amounts had been withdrawn by two cheques, which were allegedly issued by the wife of PW1. They told the bank officials that they had not issued cheques for an amount of Rs.1,05,000/- and Rs.3,20,000/-. They also told the bank officials to check the signatures before encashment of the cheques. The bank officials did not give any satisfactory reply. Thereafter, PW1 gave a typed complaint (Ex PW1/A) to the SHO, PS Saket regarding the aforesaid facts. Later on, PW1 came to know that police officials had apprehended the accused persons and recovered some amount. The cheques of the account of PW1 and that of his wife were with the Accountant, namely, Praveen Gupta. PW1 enquired the matter from his Accountant Praveen Gupta, who told him that he had no knowledge as to who had taken the said two cheques and also told that the said two cheques were detached from the cheque book. PW1 correctly identified accused Sunil Kumar. PW1 further deposed that accused Sunil Kumar used to come at his office situated at Saket, New Delhi. The accused persons, who had State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 4 of 30 withdrawn the amounts in question from the bank, were caught in CCTV footage. PW1 came to know that accused Ansh Sharma and Nand Kishore had withdrawn the money from his wife's account. The bank officials told the name of the said accused persons to PW1. PW1 further deposed that father of accused Sunil Kumar came to his office and apologized for the act of his son, namely, Sunil Kumar. Thereafter, PW1 came to know that accused Sunil Kumar had taken the said two cheques from his office. After being shown the said two cheques amounting to Rs.1,05,000/- and Rs.3,20,000/-, PW1 stated that the said cheques did not bear the signatures of his wife. The witness was duly cross-examined by the Ld. Defence Counsels.
5. PW2 Smt. Leena Agarwal deposed that in the year 2008-09, she had maintained a savings bank account in Standard Charted Bank. She came to know from her husband that two cheques had been stolen from the office from her chequebook. Thereafter, her husband dealt with the matter. PW2 never visited the bank regarding the said cheques. The police officials did not obtain her specimen signature. PW2 admitted her specimen signatures from Sl. No. S1 to S4. The said specimen signatures from Sl. No. S1 to S4 are Ex PW 2/A (Colly). However, PW2 did not admit her signatures on the two cheques in question and deposed that she had not signed on the same. PW2 admitted her signatures on the account opening form of Standard Charted Bank at point A-1 to A-
3. PW2 correctly identified accused Sunil. After seeing the counter foil and account opening form, PW2 stated that her account number was 533-1-003172-3 and the branch of the bank was situated at State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 5 of 30 Saket. The witness was duly cross-examined by the Ld. Defence Counsels.
6. PW3 Sh. Sujit Jha, Senior Officer from Standard Chartered Bank, DLF, Cyber City, Gurugram (Haryana) provided and proved the requisite documents i.e. the name and address of customer, namely, Sh. Praveen Aggarwal, having account No. 522-1-177090- 2 vide Ex PW 3/A. He also provided and proved the requisite documents i.e. name and address of customer, namely, Leena Aggarwal having account No. 533-1-003172-3 and that of Nand Kishore having account No. 522-1-17709-2 vide Ex PW 3/B. PW3 also proved the copy of documents i.e. original voucher of money deposit in account No. 52211770902 vide Ex PW 3/C and the seizure memo of cheques and statements vide Ex. PW 3/D. The witness was duly cross-examined by the Ld. Defence Counsels.
7. PW4 Sh. Deepak Singh, Deputy Manager, HDFC Bank, Mahavir Enclave Branch, Palam, New Delhi proved the certified copy of documents i.e. copy of Account Opening Form of Account No. 04851050113497 in the name of Ansh Sharma, acknowledgement receipt, Form No. 60, employment certificate given by Intelenet Global Services Pvt. Ltd and bank statement vide Mark-D to Mark-H respectively. The witness was duly cross- examined by the Ld. Defence Counsels.
8. PW5 Sh. Pradeep Kumar Das deposed that he had joined HDFC Bank in the year 2000 and I was posted as Branch Manager in HDFC Bank, Mahavir Enclave Branch, Palam, New Delhi. He State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 6 of 30 proved his letter dated 11.11.2008 addressed to SI Dalip Kumar vide Ex PW4/A. The documents i.e. certified copy of account opening form, instant account acknowledgement, Form No. 60, employment certificate and bank statement of Ansh Sharma of Account No. 04851050113497 were shown to the witness, who stated that the said documents had been attached with the aforesaid forwarding letter. The witness was duly cross-examined on behalf of accused Ansh Sharma.
9. PW6 Mohd. Imran deposed that in the year 2009, he was working as Senior Officer, Internal Services, Standard Charted Bank at Bahadur Shah Zafar Marg, ITO, New Delhi. He handed over the documents i.e. account opening form and the specimen signatures card of Ms. Leena Aggarwal (A/c No. 53310031723) to the IO, which were seized by the IO vide seizure memo Ex PW6/A. PW6 proved the specimen signatures card of Ms. Leena Aggarwal vide Ex PW6/B. PW6 also handed over the documents i.e. account opening form and the specimen signatures card of Sh. Nand Kishore (A/c No. 52211770902) to the IO, which were also seized by the IO vide seizure memo Ex PW6/D. He proved the original account opening form of Sh. Nand Kishore vide Ex PW6/E and the specimen signatures card vide Ex PW6/F. PW6 also proved the bank account statement of Ms. Leena Aggarwal for the period 18.07.2005 to 29.05.2014 vide Ex PW6/H (Colly) and that of Sh. Nand Kishore for the period 06.08.2008 to 03.11.2015 vide Ex PW6/I. The witness was duly cross-examined by the Ld. Defence Counsels.
State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 7 of 30
10. PW7 ASI Ravinder Singh deposed that on 02.04.2009, he joined the investigation of the present case. During the course of investigation, he along with SI Dilip Kumar, Ct. Hafizullah, Ct. Vinod, Ct. Jaiveer and Ct. Bhopal went to Jaitpur to search accused Sunil Kumar. Accused Vinay Garg also accompanied them. Accused Vinay Garg pointed out towards accused Sunil Kumar, who was present inside his house. IO SI Dilip Kumar interrogated accused Sunil Kumar. Thereafter, IO arrested accused Sunil Kumar, personally searched him and recorded his disclosure statement vide Ex PW7/A, PW7/B and PW7/C respectively. The witness correctly identified accused Sunil Kumar and Vinay Garg. The witness was duly cross-examined on behalf of accused Sunil Kumar.
11. PW8 Sh. Sunil Kumar deposed that in the year 2006, he along with Krishan and Vishnu was running a business of property dealing in the name of Pooja Property situated at 70 Feet Road, Kirari. In that year, accused Nand Kishore came at their shop and gave an amount of Rs.1.50 Lakhs in cash to them for the purpose of investing the same in any property. PW8 further deposed that in the year 2009, police officials had brought accused Nand Kishore at their shop and made inquiry pertaining to the said amount. PW8 along with his associates narrated the above said facts to the police officials and handed over an amount of Rs.1.50 Lakhs to the police officials. The police officials seized the same vide seizure memo Ex PW 8/A. PW8 correctly identified accused Nand Kishore and the case property i.e. Rs.1.50 Lakhs as well. The witness was duly cross-examined on behalf of accused Ansh Sharma.
State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 8 of 30
12. PW9 Sh. Krishan Sharma, being an associate of PW8 Sh. Sunil Kumar, reiterated the version of PW8. PW9 correctly identified accused Nand Kishore and the case property i.e. Rs.1.50 Lakhs as well. The witness was duly cross-examined on behalf of accused Ansh Sharma.
13. PW10 Sh. Vishnu Dayal, being an associate of PW8 Sh. Sunil Kumar, reiterated the version of PW8. PW10 correctly identified accused Nand Kishore and the case property i.e. Rs.1.50 Lakhs as well. The witness was duly cross-examined by the Ld. Defence Counsels.
14. PW11 SI Devender Singh deposed that on 01.04.2009, he had joined the investigation of the present case with SI Dalip Kumar (the IO). PW11 proved the arrest, personal search and disclosure statement of accused Anil Sharma, conducted by the IO, vide Ex PW11/A, PW11/B and PW11/C respectively. Similarly, PW11 proved the arrest, personal search and disclosure statement of accused Vinay Garg, conducted by the IO, vide Ex PW11/D, PW11/E and PW11/F respectively. Thereafter, PW11 deposed as to the recovery of Rs.1.50 Lakhs from the office of Pooja Properties, which was seized by the IO. Further, PW11 proved the arrest, personal search and disclosure statement of accused Ansh Sharma, conducted by the IO, vide Ex PW11/G, PW11/H and PW11/I respectively. The witness was duly cross-examined on behalf of accused Anil Sharma, Vinay Garg and Sunil Kumar.
15. PW12 Inspector Dalip Kumar is the IO of the present case, State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 9 of 30 who deposed that on 10.10.2008, he received complaint dated 10.10.2008 (Ex. PW1/A). He took the said complaint on record vide DD entry No. 32B and conducted preliminary inquiry. During preliminary inquiry, he served notices to concerned banks and collected some relevant documents. He proved the notices served to the Branch Manager, Standard Charted Bank, E-26, Saket and HDFC Bank Ltd., D-88, Mahavir Enclave, Palam vide Ex PWI2/A and Ex PW12/B. During preliminary inquiry, the IO also seized relevant cheques and bank statement of relevant bank account. The IO obtained approval from the senior officials to lodge the present FIR. Thereafter, the IO got endorsed the complaint dated 10.10.2008 from the then SHO, PS Saket and got the FIR registered. During the course of investigation, the IO had conducted raid on different occasions at the addresses of accused persons, namely, Ansh Sharma and Nand Kishore as mentioned in the relevant bank documents collected by him in the course of preliminary inquiry. The IO had examined one lady, namely, Ms. Leena Aggarwal, wife of complainant Mr. Praveen Aggarwal and recorded the statement under Section 161 of the Code. On 31.03.2009, accused namely, Nand Kishore (the witness correctly identified accused Nand Kishore) surrendered before the concerned Court. On the same day, after prior permission from the concerned Court, the IO arrested accused Nand Kishore vide arrest memo Ex PW12/D. Accused Nand Kishore disclosed his involvement and the name and details of the associate. The IO had recorded his disclosure statement (Ex PW 12/E). While accused Nand Kishore was in police custody, the IO along with other police official arrested accused Anil Kumar Sharma at the instance of accused State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 10 of 30 Nand Kishore vide arrest memo already Ex PW11/A. The IO had conducted his personal search vide memo already Ex PW11/B. Accused Anil Kumar Sharma disclosed his involvement and the name and details of the associate. The IO had recorded his disclosure statement (already Ex PW11/C). While accused Anil Kumar Sharma was in police custody, the IO along with other police official arrested accused Vinay Garg at the instance of accused Anil Kumar Sharma vide arrest memo already Ex PW11/D. The IO had conducted his personal search vide memo already Ex PW11/E. Accused Vinay Garg @ Sonu Aggarwal disclosed his involvement and the name and details of the associate, namely, Sunil Kumar who had committed the theft of cheques in question. The IO had recorded his disclosure statement (Ex PW11/F). While accused Vinay Garg was in police custody, the IO along with other police official arrested accused Sunil Kumar at the instance of accused Vinay Garg vide arrest memo already Ex PW7/A. The IO had conducted his personal search vide memo already Ex PW7/B. The IO had recorded the disclosure statement (Ex PW7/C) of accused Sunil Kumar, who disclosed his involvement in the present case. During the course of investigation, the IO had recorded supplementary disclosure statement (Ex PW12/F) of accused Nand Kishore. The IO had also recorded supplementary disclosure statement (Ex PW11/C) of accused Anil Kumar Sharma. On 02.04.2009, at the instance of accused Nand Kishore, an amount of Rs.1,50,000/- (in the denomination of Rs.500 & Rs.100 notes) had been recovered vide recovery memo Ex PW8/A. With the permission of the Court, specimen signature of the accused persons were obtained. On 12.05.2009, the IO had arrested accused Ansh State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 11 of 30 Sharma from Flat No. 132, Sunrise Apartment, Nasirpur and conducted his personal search vide memos Ex PWI1/G and Ex PW11/H. Thereafter, the IO had recorded the disclosure statement of accused Ansh Sharma vide memo Ex PW11/I. The IO had taken steps for the recovery but no recovery was effected at the instance of accused Ansh Sharma. The IO had collected the original cheques from the bank vide memos Ex PW12/Z and the cheques belonged to accused Nand Kishore. On 03.11.2009, the IO had seized the signature card of Leena Agarwal and account opening form of Leena Agarwal vide memo Ex PW6/A. On 10.11.2009, the IO had seized account opening form of Nand Kishore and signature card of the same vide memo already Ex PW6/D. During investigation HC Manveer had brought the documents related to Ansh Sharma. HC Suresh had seized the original cheque No. 08160l. Thereafter, the IO had sent all the documents to the FSL for expert examination. After completing investigation, the IO prepared the charge sheet and filed it before the Court. Identity of accused Vinay Garg was not disputed by Ld. Defence Counsel. PW12/IO correctly identified the remaining accused persons and also disclosed their names.
16. PW13 ASI Rupkishor deposed that on 05.05.2010, he had received one sealed envelope of the documents pertaining to the present FIR to deposit the same to the FSL. Vide RC No. 28/21/10, PW13 had taken the said documents to the FSL, Rohini, New Delhi and deposited there. He further deposed that till the time the sealed envelope was in his possession, he did not tamper with the same.
17. PW14 Dr. Sarita Sharma, Sr. Scientific Assistant State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 12 of 30 (Documents), FSL, Rohini, Delhi proved the FSL Report dated 31.08.2012 vide Ex PW14/A. STATEMENT / DEFENCE OF THE ACCUSED
18. In his statement recorded under Section 313 of the Code, the accused persons denied the entire evidence against him. They stated that they are innocent and have been falsely implicated in this case. Accused persons did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
19. The record has been thoroughly and carefully perused. The respective submissions of Ld. Assistant Public Prosecutor for State and respective Ld. Counsel for the accused persons have been considered.
20. It is the case of the prosecution that accused persons entered into a criminal conspiracy to forge and misuse the impugned cheques of the complainant. It is alleged that accused Sunil, who was working as a domestic help, at the complainant's residence, stole the impugned cheques of the complainant and handed them over to accused Vinay along with a signed document of the complainant. Accused Vinay got the signatures of the complainant forged in the impugned cheques by one Ajay in Dwarka who was an expert forger. Then accused Vinay handed over one of the impugned cheques of the complainant to accused Anil Sharma who opened a bank account for accused Nand Kishore and deposited the State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 13 of 30 cheque for an amount of Rs. 3,20,000 into his bank account. Subsequently, money was withdrawn from accused Nand Kishore's bank account and amount was divided equally by both of them (i.e. accused Nand Kishore and accused Anil Sharma). An amount of Rs. 1.50 lakh was recovered at the instance of accused Nand Kishore. Similarly, accused Vinay handed over the other impugned cheque (with signatures forged by Ajay) to accused Ansh who filled the other particulars of the cheque and transferred an amount of Rs. 1,05,000 from the bank account of the complainant. Thereafter, he withdrew the said amount and gave Rs. 50,000 to accused Vinay Garg.
21. The accused persons have been charged under Sections 420/467/468/471/381/120-B of IPC. In a streamlined manner, it shall be considered separately whether the prosecution has been able to establish beyond reasonable doubt whether each of the offences has been committed by the accused persons in pursuance of their criminal conspiracy.
Re: Section 120-B of IPC
22. Section 120B provides punishment for criminal conspiracy. Criminal conspiracy is a substantive offence and has been defined in Section 120A of IPC. Section 120A of IPC is reproduced in the following manner:
"When two or more persons agree to do, or cause to be done,-
(a) an illegal act, or
(b) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy Provided that no agreement except an agreement to commit an State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 14 of 30 offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
23. The Hon'ble Supreme Court in Parveen @ Sonu vs. State of Haryana [2021 SCC OnLine SC 1184] has held that:
"It is fairly well settled that to prove the charge of conspiracy, within the ambit of Section 120-B of IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC.
A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused."
24. In Babulak Choukhani and Sailendra vs. The King- Emperor [(1938) 40 BOMLR 787], it was observed that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one, the act of each and all the conspirators), these acts are said to be committed in the course of the same transaction which embraces the conspiracy and the acts done under it. Therefore, the prosecution must prove that the accused persons carried out a single scheme by successive acts.
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25. There is nothing on record to show that the accused persons were known to each other. Similarly, there is nothing on record to imply that there was an agreement between them (express or implied) to commit an unlawful act. There is no cogent evidence on record to prove the charge of conspiracy, direct or circumstantial as is required in a case under Section 120B of IPC [Re: State vs. V.C. Shukla 1980 CrLJ 965]. Accused Nand Kishore disclosed that he had withdrawn the money credited to his bank account and handed over fifty percent of the said amount to accused Anil Sharma. Similarly, accused Ansh disclosed that after withdrawing the amount, he handed over Rs. 50,000 to accused Vinay. However, no recovery has been effected from either accused Anil or accused Vinay. Further, it is unclear as to what benefit accused Sunil derived from the entire conspiracy as the chargesheet does not mention if he was paid for the theft of the impugned cheques. No money trail has been established by the prosecution to prove the linkage between accused persons as the evidence as well as averment is scattered and not cogent. Most pertinently, under Section 26 of the Indian Evidence Act, 1872 (hereinafter "the Evidence Act"), disclosure / confessional statements of accused made whilst he is in custody of police is inadmissible. Such disclosure statements could be read as evidence if any fact was discovered in consequence of the information received from an accused when in the custody of police by virtue of Section 27 of the Evidence Act. Merely on the basis of confessional statements of the accused persons, prosecution cannot establish the offence of criminal conspiracy. It is not prudent to convict the accused persons on the basis of confessional statements without any evidence as to the existence of an agreement between State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 16 of 30 the accused persons. In the absence of any agreement, the entire foundation of the case against the accused persons under Section 120B of IPC falls flat and hence, they are not liable to be convicted for the substantive offence under Section 120B of the IPC.
Re: Section 381 of IPC
26. Section 381 of IPC deals with theft by clerk or servant of property in possession of master. According to this Section, anyone who is clerk or servant, or employed as such, and commits theft of any property that belongs to his or her master or employer, shall be punished with imprisonment for up to seven years and shall also be liable to pay fine.
27. It is the case of the prosecution that accused Sunil, who was working as a domestic help, at the complainant's residence, stole the impugned cheques of the complainant and handed them over to accused Vinay along with a signed document of the complainant. PW1 Praveen Agarwal deposed that accused Sunil was working as Peon and his father was working in PW1's textile factory. In his examination in chief, PW1 deposed that father of accused Sunil came to his office and apologized for the theft of cheques by accused Sunil. It was deposed that on said visit by father of accused Sunil, the complainant came to know that the impugned cheques were stolen by accused Sunil.
28. There are various factors which cast aspersions on the allegation qua accused Sunil under Section 381 of IPC. Firstly, State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 17 of 30 PW1 did not remember the date on which father of accused Sunil apologized to him. He has not explained whether any other person was present when father of accused admitted to the theft by accused Sunil. Secondly, subsequent to said visit, it is normal to presume that PW1/complainant would have informed the police officials with respect to the said admission by father in order to assist them in further investigation. However, PW1/complainant did not intimate the police officials that the impugned cheques were actually stolen by accused Sunil. Thirdly, admittedly PW2's cheque book was in the custody of the complainant's chartered accountant one Praveen Gupta. The said chartered accountant has not been joined in the investigation and neither has his submission been obtained qua the cheque leaves which have been procured from his possession. As the impugned cheques have been stolen from his possession, his deposition was imperative as he could have deposed w.r.t. the role of accused Sunil. However, there is no explanation forthcoming from the prosecution in this regard.
29. Further, accused Sunil has been charge sheeted on the basis of the disclosure of accused Vinay Garg. Nothing has been recovered from accused Sunil on the basis of the disclosure of accused Vinay. There is no evidence which establishes a linkage between accused Sunil and accused Vinay. There is no substantive or corroborative evidence to prove that accused Sunil stole the impugned cheques and handed them to accused Vinay. Furthermore, from the prosecution case, it is not alleged that accused Sunil monetarily benefited from the alleged conspiracy which belies logic. Accused Sunil cannot be convicted for theft under Section 381 IPC only on the basis of disclosure of co-accused State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 18 of 30 Vinay. Further, as mentioned above, as the prosecution has not been able to establish the existence of a conspiracy, I have no hesitation in concluding that the prosecution has failed to establish that the accused persons, in furtherance of their criminal conspiracy, stole the impugned cheques of PW2/Leena Agarwal.
Re: Section 420 of IPC
30. Section 420 of IPC provides as under:
"420. Cheating and dishonestly inducing delivery of property -
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
31. Section 415 IPC defines cheating in the following manner:
"Section 415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
32. In Hridaya Ranjan Prasad Verma and others vs. State of Bihar and another [2000 (4) SCC 168], the Hon'ble Supreme Court held that:
"14. On a reading of the Section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 19 of 30 may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed."
33. In S.W. Palanitkar vs. State of Bihar [2002 (1) SCC 241], it has been laid down that:
"10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by, (ii) (b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
21. ...In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating."
34. The expression 'defraud' has been explained in Dr. Vimla vs. Delhi Administration [AIR 1963 SC 1572] and it has been held State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 20 of 30 that 'defraud' involves two elements namely, deceit and injury to the person deceived. Injury has been explained to mean something other than economic loss, that it, deprivation of property, whether movable and immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. A benefit or advantage to the deceiver will almost cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is to be satisfied. In the instant case, the deceived is the banker and as there is no corresponding loss to him, the instant case falls within the rare cases mentioned above. In such cases, the fact of deception can only be proven by examining the person deceived. Surprisingly, the banker has not been joined in the investigation by the IO for reasons best known to him.
35. The case of the prosecution under Section 420 of IPC is that the accused persons in criminal conspiracy deceived and dishonestly induced the bankers to encash the forged cheques. The moot question is whether the prosecution has established beyond reasonable doubt that the banker was dishonestly induced by the accused persons ? As mentioned in the case laws above, the prerequisite for establishing an offence of cheating is that there was fraudulent or dishonest inducement of a person. It is the case of the prosecution that the accused persons fraudulently induced the bank officials to honour and encash the impugned cheques. There is no CCTV footage of the bank to establish the accused persons physically approaching the bank officials qua the cheques. As State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 21 of 30 alleged by the accused persons, the cheques could have been dropped in the drop box and honoured in the normal course. Therefore, inducement could have been established only by the the bank officials who processed the impugned cheques. The prosecution has not examined the said bank officials. PW3 Sujit Jha, Senior Officer, Standard Chartered Bank deposed with respect to handing over of documents such as the details of the customers having account No. 522-1-177090-2 (i.e. complainant Praveen Aggarwal), No. 533-1-003172-3 (i.e. wife of complainant Ms. Leena Aggarwal) and No. 522-1-17709-2 (i.e. accused Nand Kishore), the account opening form and KYC of the said bank accounts to the IO. The bank officer (Sh. Neel Madhav Mishra) who processed the cheques after tallying the signatures has not been joined in the investigation and without his testimony, there is nothing on record to state that the accused persons fraudulently induced him to encash the impugned cheques. Therefore, there is nothing on record to state that the accused persons fraudulently induced the bank officials to honour the cheques and hence, case under Section 420 IPC read with Section 120B IPC is not made out against the accused persons.
Re: Sections 467/468 of IPC
36. The definition of forgery as provided under Section 463 of IPC is as under:
"463. Forgery. Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 22 of 30 committed, commits forgery."
37. Forgery pertains to making of a false document which is defined in Section 464 of IPC. Section 464 of IPC reads as under:
"464. Making a false document. A person is said to make a false document or false electronic record -
First - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature with the intention of causing it to be believed that such document, or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
38. Section 467 of IPC criminalizes making of forged documents. Section 467 provides that whoever forges a document which purports to be a valuable security (such as a cheque) shall be punished with imprisonment for life or with imprisonment of either State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 23 of 30 description for a term which may extend to ten years and shall also be liable to fine. Section 468 of IPC criminalizes commission of forgery for the purpose of cheating. Accused persons can be punished under Section 467 and Section 468 of IPC, if they fall within the definition of the meaning of "whoever makes". The essential ingredients for commission of the offence under Section 467 of IPC are listed. Under Section 468 of IPC, in addition to the above factors, it is also to be established that the forgery was committed for the purpose of cheating. The essential ingredients for an offence under Section 467 IPC are:
a) the document in question is forged;
b) the accused forged it; and
c) the document is a valuable security.
39. In Shiela Sebastian vs. R. Jawaharaj and another [(2018) 7 SCC 581], it was held that:
"Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery".
40. Therefore, in view of the above case laws, it is crystal clear that it is the duty of the prosecution to establish as to who had forged the signatures of PW2 on the impugned cheques and it has not been established that they have been forged by any of the accused persons. The FSL report has been filed by the IO along State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 24 of 30 with the supplementary chargesheet. The FSL in its Report dated 31.08.2012 (Ex. PW14/A) has concluded that the signatures on the impugned cheques do not match with the signatures of PW2. Therefore, whilst it is established that the impugned cheques were forged, the prosecution in order to bring home the charge under Section 467 of IPC also has to establish that it was forged by any of the accused persons. The signatures of the accused persons have not been compared with the signatures on the impugned cheques. In fact, quite pointlessly, the signatures of accused Nand Kishore have been sent for comparison with the signatures on the cheques used by Nand Kishore to withdraw the amount (credited by way of the impugned cheques) from his bank account. Similarly, the signatures of accused Ansh Sharma have been sent for comparison with the signatures on the cheques used by accused Ansh to withdraw the amount (credited by way of the impugned cheques) from his bank account. These signatures were never disputed by the accused persons and, therefore, the entire exercise was futile. The signatures of the accused persons ought to have been compared with the signatures on the impugned cheques. However, FSL has not expressed an opinion on these issues. Furthermore, accused Vinay Garg in his disclosure statement deposed to the police officials that the impugned cheques were forged at Dwarka by one Ajay, who was an expert forger of signatures. The charge sheet is eerily silent on steps taken by the IO to trace the aforesaid Ajay who actually forged the documents. Surprisingly, it is not even mentioned in the chargesheet that steps were taken to trace said Ajay and he could not be found. Therefore, the case of the prosecution is fundamentally flawed as the investigation has left loose ends which State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 25 of 30 enure to the benefit of the accused persons. Consequentially, on the basis of the aforesaid reasons, the charge for commission of forgery punishable under Section 467 and Section 468 of IPC in pursuance of criminal conspiracy by the accused persons is not made out.
Re: Section 471 of IPC
41. Section 471 of the IPC is reproduced below:
"471. Using as genuine a forged document or electronic record. - Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
42. It has been established by the prosecution by way of FSL Report, which is Ex. PW14/A, that the impugned cheques were forged. The next issue to be determined is whether the accused persons used the impugned cheques dishonestly or fraudulently knowing them or having a reason to believe that they were forged.
43. In Parvinder Kaur vs. State of Uttar Pradesh and another [AIR 2010 SC 840], the Hon'ble Supreme Court observed the following with respect to the requisite criminal intention under Section 471 of IPC:
"Section 471 of IPC stipulates that the forged document ought to be used "dishonestly" or "fraudulently" for the purpose of establishing an offence under Section 471 of IPC. The words "dishonestly" and "fraudulently" have been defined respectively in Sections 24 and 25 of the IPC. 'Dishonestly' has been defined to mean that, whoever does anything with the intention of causing wrongful gain to one person or wrongful State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 26 of 30 loss to another, is said to do that thing 'dishonestly'. The word 'fraudulently' has been defined to mean that a person is said to do a thing 'fraudulently' if he does that thing with the intent to defraud, but not otherwise. The expression 'wrongful gain' and 'wrongful loss' are defined in Section 23 of IPC; 'wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled to; wrongful loss is loss by unlawful means of property to which the person losing it is legally entitled to; and a person is said to gain wrongfully, when such person retains wrongfully, as well as when the other person is wrongfully deprived of property. The word 'injury' is defined in Section 44 as any harm illegally caused to any person in body, mind, reputation or property. Section 471 IPC is not attracted if there is no dishonest intention on the part of the accused or if the accused has not acted fraudulently."
44. As observed in Jibrial Diwan vs. State of Maharashtra [AIR 1997 SC 3424] by the Hon'ble Supreme Court of India, fraud is made up of two ingredients namely; deceit and injury. To deceive is to induce a man to believe that a thing is true which is false, and which the person practicing the deceit knows or believes to be false. To defraud is to deprive by deceit. It is by deceit to induce a man to act to his injury. More tersely it may be put that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action. The words "intent to defraud" are not synonymous with the words "intent to deceive".
45. As far as accused Vinay, Anil and Sunil are concerned, there is no corroborative or substantive evidence against them. They have been charge-sheeted only on the basis of the disclosure statements of co-accused persons. Further to the said disclosure statements, nothing has been placed on record by the prosecution to establish that the impugned cheques went from them to accused Ansh and accused Nand Kishore who had the knowledge that the impugned State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 27 of 30 cheques were forged. The prosecution has not been able to impute the element of knowledge on the accused persons.
46. It is well settled proposition that intention cannot be proved as material evidence. It can be inferred from the attending circumstances particular to the available facts and circumstances of each case. The key ingredient of offence under Section 471 of IPC is using a forged document as genuine knowing that the same is forged. Therefore, knowledge that the document being used is forged, is imperative to bring home the verdict of guilty against the accused person. There is nothing on record to state that the accused persons had knowledge that the cheques were forged. Their fault is that they did not disclose receipts from unknown sources. The prosecution has alleged that the money illegally received by accused Nand Kishore (i.e. Rs. 1.50 lakh) was handed over by him to PW8 Sunil Kumar, PW9 Krishan Kumar and PW10 Vishnu Dayal for the purpose of purchasing property. However, the depositions of these witnesses do not help the case of the prosecution as they alleged that the said amount was handed over to them in 2006. However, the instant case pertains to the year 2008. Therefore, the amount recovered has no link with the present crime as they pertained to different years and it is illogical to state that the proceeds from the alleged criminal conspiracy received by accused Nand Kishore was recovered by the investigating officials. The prosecution has not been able to establish the knowledge qua the impugned cheques being forged on any of the accused persons and, therefore, they are acquitted under section 471 of IPC.
State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 28 of 30 CONCLUSION
47. It is factually correct that the impugned cheques of the complainant have been forged, however, penal statutes cannot be applied by way of implication in the absence of any concrete incriminating material against the accused persons. This case is a classic example of shabby and shoddy investigation, as apart from disclosure statements which are by law inadmissible as evidence, no evidence has been collected by the investigating officials against the accused persons. The investigating official has not taken any effort to trace the alleged forger. Further, he has not taken any steps to establish the conspiracy amongst the accused persons or set out the manner / mode of gratification received by each of the accused persons or establish how the accused persons carried out a single scheme by way of successive act. None of the alleged successive acts have been established beyond reasonable doubt against the accused persons. The entire case of the prosecution is merely a compendium of the disclosure statements of the accused persons and reflects complete lack of further efforts of the investigating official to investigate and find concrete evidence on the basis of said statements. The lapses and deficiencies in the investigation goes to the root of the matter and are fatal to the case of the prosecution. The prosecution has not been able to establish the offence of criminal conspiracy and commission of the offences of forgery, cheating and theft on the basis of cogent and reliable material. Therefore, the accused persons, namely, Mr. Nand Kishore S/o Mr. Ram Chander, Mr. Ansh Sharma S/o Mr. Ashok Sharma, Mr. Vinay Garg S/o Mr. Prem Chand Garg, Mr. State vs. Nand Kishore & Ors FIR No. 17/2009, PS: Saket Page 29 of 30 Anil Kumar Sharma S/o Mr. Prabhu Dayal Sharma and Mr. Sunil Kumar S/o Mr. Bhagwan Dass are acquitted under Sections 420/467/468/471/381/120-B of IPC.
Dictated and announced in open Court on 18.08.2023.
Digitally signed by T. T. PRIYADARSHINI
PRIYADARSHINI
Date: 2023.08.25
17:28:12 +0530
(T. Priyadarshini)
Additional Chief Metropolitan Magistrate
South District, Saket Courts, New Delhi
18.08.2023
State vs. Nand Kishore & Ors
FIR No. 17/2009, PS: Saket Page 30 of 30