Delhi District Court
State vs Devender Sharma on 7 October, 2024
1
IN THE COURT OF SHRI YASHDEEP CHAHAL
Judicial Magistrate First Class-01 : New Delhi District
Patiala House Courts : New Delhi.
New No.40868/2016
FIR No.507/2000
P.S. : Connaught Place
Under Section : 419, 420, 467, 468, 471 & 120-B of IPC
State Vs. Devender Sharma & Others
ID number of the case : New No. 40868/2016
CNR No. DLND02-000051-2000.
Date of commission of : Between 04.02.2000 to 19.07.2000
offence
Date of institution of the : 24.10.2000.
case
Name of the complainant : Life Insurance Corporation of India, 11-J,
Jeewan Prakash Building, K.G. Marg,
Connaught Place, New Delhi.
Name of accused and : (1) Devender Sharma S/o Sh. B.L. Sharma
address R/o L-246, Sector-9, New Vijay Nagar
Colony, Ghaziabad, Uttar-Pradesh.
(2) L.S. Rawat S/o Shri U.S. Rawat,
R/o G-382, Pocket-II, Mayur Vihar Phase-I,
Delhi.
(3) Vinay Singh Chauhan S/o Sh. Dalganjan
Singh, R/o 119, Panchwati, Ghaziabad.
(4) Dinesh Dhar, S/o Shri D.N. Dhar
Offence complained of or : Under Sections : 419, 420, 467, 468, 471 &
proved 120-B of the Indian Penal Code, 1860.
Plea of the accused : Pleaded not guilty
Final order : Accused Devender Sharma and Vinay Singh
convicted
Accused L.S. Rawat And Dinesh Dhar
acquitted in all offences.
Date of judgment : 07.10.2024.
FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 1/37
2
BRIEF STATEMENT OF FACTS FOR THE DECISION
1.On 26.07.2000, the Senior Branch Manager of Life Insurance Corporation, K.G. Marg Branch, Connaught Place, New Delhi, namely, Mr. L.S. Rawat, gave a complaint at P.S. Connaught Place regarding fraudulent encashment of various life insurance policies by presenting forged and fabricated surrender letters purportedly issued by the policy holders. The offence was discovered on 19.07.2000 by the Quality Control Team of LIC when they found that four policies issued in the names of Sukh Dev Raj Khanna, Sudhir Khanna and Poonam Khanna were encashed on the basis of forged surrender letters.
2. Since, the surrender involved high value payments, the concerned team examined the record and discovered that no record of surrender of the said policies could be found in the branch. On this discovery, the policy holders were contacted and they informed that they had never applied for surrender. In light of these allegations, an FIR bearing No. 507/2000, P.S. Connaught Place was registered and investigation was commenced.
3. After investigation, charge sheet came to be filed against four accused persons, namely, Devender Sharma, L.S. Rawat, Dinesh Dhar and Vinay Singh for the commission of offences under Sections 420, 467, 468, 471 read with Section 120-B of IPC. For the purpose of clarity, it needs to be noted that the original complainant, namely, L.S. Rawat was charge-sheeted as an accused, when it was discovered that he had played an active role in the commission of the offence. The charge FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 2/37 3 sheet also disclosed that the policies were surrendered on the basis of forged surrender letters by inducing the LIC to accept the same as genuine and after obtaining cheques for the policy amounts, the said cheques were presented for encashment at three banks - Bank of Baroda, Ghaziabad Branch; Bank of Baroda Connaught Place Branch and HDFC Bank, K.G. Marg Branch. As per the allegations levelled in the charge sheet, the accused persons opened bank accounts in the names of the policy holders by fabricating certain documents and the cheques were encashed in those accounts.
4. By this judgment, I shall decide the case of the prosecution against the above mentioned four accused persons. On 18.12.2010, all four accused persons were charged for the commission of offences under Sections 419, 420, 467, 468, 471 read with Section 120-B of IPC and trial was commenced.
5. After the framing of charge, the matter was kept for prosecution evidence as the accused persons pleaded not guilty and claimed trial.
6. The prosecution firstly examined Neeraj Aggarwal, Regional Manager, LIC Zonal Office, New Delhi. He deposed that he was posted as Manager, IT at LIC on 22.08.2000 and on that day, he had handed over a list of surrender vouchers prepared in the computer from 09.12.1997 to 15.07.2000. He further deposed that computerization of the policies started in the year 1996. He further deposed that in the year 2000, the mode of surrender was through computer as well as manually.
FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 3/37 4After the surrender of a policy, a voucher is generated and as soon as it is passed, cheque is prepared and is given to the policy holder. He further deposed that in the present matter, only one voucher was generated through computer and four vouchers were prepared manually. PW-1 was cross-examined by Ld. APP for State after obtaining permission from the Court.
7. During cross-examination by Ld. APP for state, PW-1 deposed that on the day of payment in the present matter, the computer was working correctly.
8. During cross-examination on behalf of the accused persons, PW-1 deposed that the FIR was registered on behalf of LIC by accused L.S. Rawat. He further deposed that no mis-conduct was reported against L.S. Rawat, except the present conduct. He further deposed that the manual register of vouchers prepared in lieu of the surrender of policies used to be maintained at their office, however, the same were not provided to the concerned I.O. by him.
9. Thereafter, the prosecution examined PW-2 Ms. Vidya, who deposed that in case of surrender of policies, amounting to more than Rs.1.5 Lacs, the file used to come to her office for processing and approval. She further deposed that upon inspection of the files, she discovered that only one file was having payment voucher and there were irregularities in the other files. She further deposed that during the relevant period, only one file of Ms. Poonam Khanna was received by her for processing and no other file involving an amount of more than FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 4/37 5 Rs.1.5 Lacs was received by her.
10. During cross-examination, PW-2 deposed that in case of surrender of policies involving an amount of Rs.1.5 Lacs or more, the process required the file to be processed at the Branch Office first and later, approved at the Ombudsman Office. She further deposed that she had received a call that various policies have been cleared by the branch office without obtaining approval from the Ombudsman Office. She further deposed that normally, the cheques regarding surrender of policy used to be sent at the address of the policy holder and she was not aware of any procedure, whereby any person could personally come and collect the cheque.
11. Thereafter, the prosecution examined PW-3 Sandeep Nanda, who deposed that he had obtained the policies for his clients, namely, Sudhir Khanna, Sukhdev Raj Khanna and Kanta Gupta. He further deposed that the policies were never surrendered by his clients. PW-3 was not cross-examined on behalf of the accused persons despite opportunity.
12. Thereafter, the prosecution examined PW-4 Mr. A. Sethu Raman, Retired Senior Vice President, HDFC Bank, who deposed that during the course of his employment, he had submitted five original account opening forms vide letter dated 28.07.2000 Ex. PW-4/A. The account opening form of S.K. Bhavnani, Customer ID No. 876473 is Ex. PW-4/B. The account opening form of Indra Gupta U/G Somnath Gupta, Customer ID No. 813174 is Ex. PW-4/C. The account opening from of FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 5/37 6 Kanta Gupta U/G of Somnath Gupta, Customer ID No. 810278 is Ex. PW-4/D. The account opening form of Somnath Gupta, Customer ID No. 809456 is Ex. PW-4/E. The account opening form of Devender Sharma, Customer ID No. 389198 is Ex. PW-4/F. He also produced statement of account of Som Nath Gupta from 12.06.2000 to 31.10.2013 along with copy of account opening form as Ex. PW-4/G), statement of account of Kanta U/G of Somnath Gupta from 13.06.2000 to 31.10.2013 along with copy of account opening form as Ex. PW-4/H, statement of account of Indra U/G of Somnath Gupta from14.06.2000 to 31.10.2013 along with copy of account opening form as Ex. PW-4/I, statement of account of S.K. Bhavnani from 08.07.2000 to 31.10.2013 along with copy of account opening form as Ex. PW-4/J, statement of account of Devender Sharma from 01.01.2000 to 31.10.2013 along with copy of account opening form as Ex. PW-4/K. He also produced/proved reply vide letter dated 24.10.2000 as Ex. PW-4/L. He also deposed that he had only furnished the documents including account opening form of A/c. No. 0031000123460, 0031000118394, 0031000118014, 0031000117902 and 0031000056296. He further deposed that his statement was never recorded by the I.O. and he had only provided the aforementioned documents.
13. During his cross-examination, PW-4 could not tell the names of the persons whose account opening form was provided by him to the I.O. He voluntarily deposed that he had provided the same as per the records maintained by the bank to the I.O. and the same is mentioned in the record. He also deposed that his statement was never recorded by the I.O. He further deposed that he had never signed any account FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 6/37 7 opening form or any other document relating to the present case. PW-4 further deposed that for opening an account, one has to appear personally before the bank authorities and prior to opening the bank account, the bank authority verifies all the documents. He further deposed that he did not have any personal knowledge about the photocopy of letter dated 21.07.2000 (Mark DA) as it did not bear his signatures.
14. Thereafter, the prosecution examined PW-5 Shri B.B. Garg, Retired General Manager of Bank of Baroda who deposed that during the course of his employment as Assistant General Manager, he had provided certain documents vide letter No. CUR/2000/CA/697 dated 03.08.2000 (Ex. PW-5/A) and letter No. CUR/2000/SB/700 dated 04.08.2000 (Ex. PW-5/B) to the police officials. He had also provided detail of FDR No. 709696 dated 05.07.2000 due on 20.08.2000 in the name of Devender Sharma. He further deposed that original receipt was advised to be with Mr. Devender Sharma.
15. During his cross-examination PW-5 deposed that he did not remember whether his statement was recorded by the I.O. or not or whether he visited the Police Station or not in connection with this case. He further deposed that concerned Account Officer used to open the bank accounts and to do all the formalities regarding the documents for opening the bank accounts were done by him. He affirmed that without completing the documents formalities, the concerned bank official would not open account in the bank. He further deposed that originals of the photocopies attached with the bank opening form are seen by the concerned Bank official. He further deposed that at the relevant time, the FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 7/37 8 accounts were to be opened after having proper introduction. He affirmed that at that time a person who wanted to open an open the bank account, he had to come personally in the branch and thereafter, his account used to be opened in the bank. He did not remember whether LIC officials contacted him or not regarding the present case. He also did not remember whether I.O. had inquired any other official from the branch or not. Though, PW-5 denied the suggestion that no police official ever met him regarding the present case or that he had never handed over any document to the police official. He also denied that he has deposed falsely on the instructions of I.O.
16. During his cross-examination by Ld. Counsel for accused L.S. Rawat, PW-5 deposed that he did not remember whether any complaint was given to him for stopping the payment of cheques as mentioned in the letter dated 21.07.2000 (Mark PW-5/DA) from A/c. No. 509 of LIC. He could not confirm whether any complaint was received in the office on 21.07.2000 while he was posted as Chief Manager of Bank of Baroda, K.G. Marg. PW-5 also did not remember whether accused L.S. Rawat met him on 21.07.2000 and he informed him regarding the status of cheques as mentioned in the letter dated 21.07.2000. He also did not remember whether he had informed accused L.S. Rawat of LIC that out of four cheques mentioned in the letter dated 21.07.2000, three cheques were encashed through HDFC Bank and one from Bank of Baroda, Ghaziabad. He also did not remember whether he met accused L.S. Rawat.
17. Thereafter, the prosecution examined PW-6 Shri B. FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 8/37 9 Srivastava who deposed on oath that he had taken one LIC Policy No. 111699919 (Mark PW-6/X) from J-11, Curzon Road, LIC office vide receipt Ex. PW-6/A (OSR) and after depositing it took a loan of Rs.11,400/- vide photocopies of documents (Ex. PW-6/B). He further deposed that in the year 2013 he came to know that his original policy had been stolen.
18. During his cross-examination PW-6 deposed that though he had received a telephonic call from P.S. Connaught Place but never visited P.S. nor any police official ever met him till date or recorded his statement. He further deposed that he never received any official letter from LIC or any other department regarding theft of his policy.
19. Thereafter, prosecution examined PW-7 S.K. Bhavnani who deposed on oath that in reply to a call from P.S. Connaught Place he had visited there and replied that he had purchased LIC policy of Rs.2 Lakh in single premium for five years, where I.O. had told him that his policy had been encashed by someone. He had also applied for release of LIC premium/maturity amount and after one year he had received the entire refund/maturity from LIC.
20. During his cross-examination, PW-7 deposed that he had received that call in the year 2000 but he could not tell exact date and month in which he had visited the Police Station. He affirmed that his statement was not recorded by the police. He also affirmed that none of the documents were seized by the police from his possession. He never visited the Police Station regarding this case after that or written any application to the LIC office regarding receiving of aforesaid telephonic FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 9/37 10 call and his visit to Police Station Connaught Place. He affirmed that at that time he was having the original LIC Policy. PW-7 further affirmed that he might have surrendered his original policy to LIC office at the time of refund/maturity.
21. Thereafter, the prosecution examined PW-8 Shri Manender Singh Sethi, who deposed that he was working in the LIC Branch at Jeewan Prakash Building, Connaught Place, New Delhi in the year 2000 and was reporting to Mr. B.S. Sharma and Ms. Kalpana Chauhan. He further deposed that his job was to calculate loan and surrender payment coming from the receipt section and to send those files to HGA for checking. He further deposed that payment vouchers were prepared after the approval of the calculation by the Competent Authority. He further deposed that he had made one entry dated 04.02.2000 against policy No. 111699919. No other entry was made by PW-8. He further deposed that he had not prepared the last four entries shown to him by the concerned I.O. and he could not identify as to who had made those entries.
22. During cross-examination, PW-8 deposed that his statement was recorded by I.O./Hira Lal and was signed by him. He could not remember whether the policy number 111699919 was shown to him by the concerned I.O. or not. He further deposed that the entry against policy No. 111699919 was shown to him by the I.O. at P.S. Connaught Place in the photocopy of the surrender register. He further deposed that his job was limited to the preparation of calculation sheet and to send the same to his immediate senior officer for further verification.
23. Thereafter, the prosecution examined PW-9 ASI Satish FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 10/37 11 Kumar, who had joined the investigation with I.O./Hira Lal. He deposed regarding the arrest of the accused persons and consequential steps taken by the concerned I.O. He further deposed that the name of the accused L.S. Rawat was disclosed by accused Devender Sharma in the Police Station on 26.07.2000. He further deposed that nothing was recovered from the possession of accused Devender Sharma and at his instance in his presence. He further deposed that seizure memo of accused Devender Sharma did not bear any date of preparation. He further deposed that no prior permission of the concerned Magistrate was obtained before obtaining the specimen signatures of the accused Devender Sharma for the purpose of comparison with the questioned signatures.
24. Thereafter, the prosecution examined PW-10 Shri Subhash Chand, who was posted as Bank Officer at Bank of Baroda, K.G. Marg Branch, Connaught Place, New Delhi. He deposed that on 11.02.2000, a person, namely, Barmeshwar Srivastava had come to the branch and was introduced by Devender Sharma, who already had an account in their branch. After arrival, accused Barmeshwar Srivastava produced his original ration-card and after verification, PW-10 opened account number 23760 in his name on the same day. He further deposed that he had put his signatures on the account opening form at point A and had verified his photo after seeing him physically. HE further deposed that the account opening form was counter-signed by AGM/Branch Manager, namely, Mr. B.B. Garg. He further deposed that on 29.05.2000, accused Devender Sharma came to the branch for opening a joint account in the name of his daughter and himself in his capacity of natural guardian of his daughter. Thereafter, joint account number 23909 was opened. He FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 11/37 12 further deposed that Devender Sharma already had a running account number 22707 in the same branch. PW-10 exhibited the account opening form of Barmeshwar Srivastava as Ex. PW-10/A and the account opening form of Devender Sharma as Ex. PW-10/B. He further deposed that during his posting, total 12 cheques in favour of different persons were presented for clearance by LIC and after verification, the said cheques were cleared by him in the names of the holders. The said 12 cheques are exhibited as Ex. PW-10/C (collectively). The photocopy of ration-card in the name of Barmeshwar Srivastava is marked as P-1.
25. During cross-examination, PW-10 deposed that he was neither interrogated by the I.O. nor called for any statement. He further deposed that the accounts were opened as per bank rules and procedures.
26. Thereafter, the prosecution examined PW-11 Shri Ami Lal Daksh, who was posted as Senior Scientific Assistant (documents) at FSL, Delhi on 29.08.2023 when the documents in the present matter were forwarded to him for examination. PW-11 deposed in support of his report Ex. PW-11/A.
27. During cross-examination, PW-11 deposed that all the documents received by him were in original and the envelope was unsealed. He further deposed that they only accepted documents in unsealed condition so as to check the same before receiving. He further deposed that no photographs were taken by him for the purpose of comparison prior to the examination of documents, however, he had prepared photocopies of the documents.
FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 12/37 1328. Lastly, the prosecution examined I.O./ACP Hira Lal, who deposed that on 25.07.2000, he was posted at P.S. Connaught Place as Sub-Inspector and a complaint was given by L.S. Rawat against Devender Kumar and others regarding fraudulent encashment of LIC Policies by the agents. PW-12 exhibited the complaint Ex. PW-12/A and identified the signatures of accused L.S. Rawat on the complaint. He further deposed that FIR was registered on the said complaint and further steps such as arrest of the accused persons, preparation of personal search memos, seizure memos and recording of disclosure statements were carried out by him. He correctly identified the accused Devender Sharma in the Court. He further deposed that the accused persons were holding bank accounts in three banks i.e. HDFC, K.G. Marg Branch, Bank of Baroda, K.G. Marg Branch and Bank of Baroda, Gandhi Nagar, Ghaziabad Branch. He deposed regarding the notices under Section 91 Cr.PC sent by him to the concerned Branch Managers as well as to LIC for obtaining original documents, surrender register, account opening forms, signature cards, original cheques etc. During further examination, PW-12 deposed that he had sent the original documents for scientific examination to FSL on 08.12.2000 collectively exhibited as Ex. PW-12/J (running into 43 sheets).
29. During cross-examination, PW-12 deposed that at the time of surrender of policy, accused Dinesh Dhar was required to verify the same and to process them to senior officials. He further deposed that he could not remember whether one policy out of the four questioned policies were prepared and verified by accused Dinesh Dhar. He further deposed that the signatures for specimen handwriting of the accused FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 13/37 14 were obtained in the police station itself and no prior permission of the concerned Magistrate was obtained. He volunteered that no such permission was required at the relevant point of time.
30. In addition to the oral evidence of the witnesses, discussed above, the prosecution has relied upon the following material documents in support of its case : -
(1) Ex. PW-1/B - List of Surrender Value Vouchers. (2) Ex. PW-4/B - Account Opening Form of S.K. Bhavnani. (3) Ex. PW-4/C - Account Opening Form of Indira Gupta. (4) Ex. PW-4/D - Account Opening Form of Kanta Gupta. (5) Ex. PW-4/E - Account Opening Form of Som Nath Gupta. (6) Ex. PW-4/F - Account Opening Form of Devender Sharma. (7) Ex. PW-4/G - Statement of Account of Som Nath Gupta. (8) Ex. PW-4/H - Statement of Account of Kanta Gupta. (9) Ex. PW-4/I - Statement of Account of Indira Gupta. (10) Ex. PW-4/J - Statement of Account of S.K. Bhavnani. (11) Ex. PW-4/K - Statement of Account of Devender Sharma. (12) Ex. PW-6/A - Receipt received by Mr. B. Srivastava against his policy No. 111699919.
(13) Ex. PW-10/A - Account Opening Form of Barmeshwar Srivastava.
(14) Ex. PW-10/C (Collectively) - 12 Cheques cleared by Bank of Baroda, K.G. Marg Branch.
31. After the conclusion of prosecution evidence, the matter was fixed for recording the statement of the accused persons under Section 281 read with Section 313 of Cr.PC, wherein the entire FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 14/37 15 incriminating material was put to the accused persons. By way of a joint statement given by all the accused persons, they have submitted that they have been falsely implicated in the present matter and all the witnesses against them were interested witnesses.
32. Thereafter, the matter was fixed for final arguments.
33. Final arguments were advanced by Ld. APP on behalf of State as well as by Ld. Counsel for accused persons.
34. Ld. APP for the State submitted that the prosecution has proved its case beyond reasonable doubt and all the witnesses have invariably supported the case of the prosecution.
35. Per contra, arguments were addressed separately by Ld. Counsels for the accused persons. Ld. Counsel on behalf of accused L.S. Rawat submitted that no specific charge has been attributed to the said accused and no evidence of conspiracy or forgery has surfaced against him. He further submitted that out of the 12 policies encashed from the concerned Branch at K.G. Marg, only two policy holders PW-6 & PW-7 have come forward to depose in favour of the prosecution. He further deposed that no amount was recovered from accused L.S. Rawat. On behalf of accused Vinay Chauhan, Ld. Counsel submitted that no independent witness has been examined in the matter and no incriminating evidence has appeared against the said accused. On behalf of the remaining two accused persons, Ld. Counsel submitted that no original policy has been brought on record and the complaint given by accused L.S. Rawat has been exhibited in evidence by the concerned FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 15/37 16 I.O., who was not the author of the complaint. He further submitted that PW-6 and PW-7 did not allege that they were cheated by the accused persons. Specifically referring to the statement of PW-2, Ld. Counsel submitted that no other person could have surrendered the policy as per rules and the cheque could only have been prepared and sent at the residence of the policy holder. Ld. Counsel further stressed upon the testimonies of PW-6 and PW-7 to contend that no statement of the said witnesses was recorded by the concerned I.O. As regards the FSL report, Ld. Counsel submitted that the signatures could not have been obtained by the I.O. without prior permission of the concerned Magistrate and the same would vitiate the entire report. Referring to the statement of PW- 10, Ld. Counsel submitted that accused Devender Sharma could only be termed as an introducer for opening the account and the same does not lead to any liability. He further submitted that there is no evidence of any wrongful loss to LIC has surfaced in the entire matter. In light of these submissions, Ld. Counsels for the accused persons have prayed for acquittal.
36. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. It is also settled that the case must be proved beyond reasonable doubt and all the essential ingredients of the alleged offences must be established on well-established parameters. So far as the burden of proof is concerned, a primary burden is to be discharged by the prosecution and once the prosecution is able to establish the material ingredients from the facts of the case, the burden shifts upon the accused to rebut the same or to point out deficiencies in the case of the prosecution. Needless to observe, the FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 16/37 17 deficiencies must be of a character which indicates a reasonable doubt in the version put forth by the prosecution.
37. Before proceeding, I may reproduce Section 420 of the Indian Penal Code for ready reference, which reads thus :-
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.
38. Section 420 IPC culminates two elements of cheating and delivery of property as a result of deception followed by inducement in a dishonest manner. Whereas, the latter element is fairly clear, the former derives its meaning from Section 415 IPC, which reads thus :-
415. Cheating.- Whoever, by deceiving any person, fraudu-
lently 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 de- ceived 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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
39. I may now briefly lay down the ingredients required for proving the offence under question. For bringing home the charge under Section 420 of IPC, it is essential that -
(a) The accused deceives any person by doing any act including a false representation;FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 17/37 18
(b) The deception is dishonest or fraudulent and leads to inducement of any person 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.
40. For the offence under Section 419 of IPC, it is essential to prove that cheating has been committed by way of impersonation. It punishes cheating by impersonation and the same is attracted when a person cheats by pretending to be some other person or by representing that he is some person other than who he really is, as defined in Section 416 of IPC. For proving the offence under Section 468 and 471 of IPC, the basic ingredient is of forgery as provided under Section 463 of IPC. It may be noted that forgery is making of any false document with the intent to cause damage or injury to any person or to support any claim or title or to cause any person to part with property etc. The essential ingredient of forgery is making of a false document which is defined in Section 464 of IPC. In Mohd. Ibrahim Vs. State of Bihar, 2009 (8) SCC 751, Section 464 of IPC was explained by the Hon'ble Supreme Court and was divided into three categories. The relevant para may be reproduced as : -
"14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories :-
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 18/37 19 causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."
41. In addition to the above, Section 468 penalizes forgery with an intention to use the forged document for the purpose of cheating and Section 471 penalizes dishonest or fraudulent use of any forged document as genuine despite knowing or having reason to believe that it was forged. So far as Section 467 of IPC is concerned, the same gets attracted when forgery is of a valuable security. The accused persons have been charged under the said provision due to the fact that the forgery in this case also pertained to cheques.
42. Coming to the evidence led on behalf of the prosecution, it is the foremost requirement of criminal law that the prosecution must establish three essential attributes - actus reus, mens rea and causal link between the crime and accused on trial. The actus reus required in this case is of deception followed by inducement (for the offence under Section 420), misrepresentation/impersonation by the accused persons by pretending to be some other person (for the offence under Section 419 IPC), making of false document/cheque/valuable security and forgery thereof for the purpose of cheating (for the offence under Section 467 &
468), use of the said forged document as genuine (for the offence under Section 471). So far as the mens rea is concerned, all the offences in FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 19/37 20 question primarily require a dishonest or fraudulent intention.
43. In the present matter, it is relevant to note that the allegations against the four accused persons are not on the same footing. Interestingly, the case was registered on the complaint given by L.S. Rawat and later, in light of the disclosure statement given by accused Devender Sharma, the complainant L.S. Rawat was charge-sheeted in the matter. As per the case of the prosecution, accused L.S. Rawat and Dinesh Dhar were working in LIC at the relevant point of time, whereas accused Devender Sharma and Vinay Singh were working as LIC Agents. The primary allegation against the two officials of LIC is that they had accepted, verified and processed forged surrender letters purportedly given by the policy holders and had issued cheques in the names of the policy holders after preparation of payment vouchers. It is also alleged that the cheques were handed over by them directly to the accused-agents instead of sending them to the residence of the policy holders, which was the norm at the relevant point of time. It needs to be noted at the outset that no direct evidence has surfaced to indicate that the surrender letters were actually approved by accused L.S. Rawat and Dinesh Dhar on their own. In fact, there are no such surrender letters on record. As per the evidence of PW-1 and PW-2, a procedure was in place for the approval of surrender requests and the said procedure necessarily required the processing of the file through multiple channels. Even PW- 12 has deposed that after verification of the surrender requests, the same were to be sent to Senior officials for preparation of payment vouchers and further verification. The evidence of PW-8 also reveals that it was his job to prepare the calculation sheet after receiving the surrender FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 20/37 21 requests and the same was required to be sent to senior officials for further verification. If it is to be believed that the calculation of the surrender requests in the present matter was carried out by PW-8, it is difficult to infer that accused persons, namely, L.S. Rawat and Dinesh Dhar managed to deceive the entire system on their own. In a scenario wherein multiple officials of LIC were involved in the culmination of a certain official act, two officials cannot be picked up in isolation to fix liability for any wrongdoing. Either the respective roles of all the officials ought to have been examined or the specific incriminating act must have been proved against the two accused officials. The circumstantial evidence on record does not consistently point in the direction of guilt of the accused persons, namely, L.S. Rawat and Dinesh Dhar. Even if the FSL report Ex. PW-11/A is taken into account, the scientific examination has not revealed any connection between the questioned documents and the specimen handwriting and signature samples of the accused persons. There is no documentary evidence on record which directly connects L.S. Rawat and Dinesh Dhar with the act of approval of the policies or with the act of issuance of cheques or with the act of executing the cheques. It is fairly certain that forgery essentially requires the proof of authorship of the questioned documents and in absence thereof, the said charge cannot be sustained. The case of the prosecution is entirely presumptive in nature.
44. As regards the remaining charges, there is no evidence or even an allegation to the effect that L.S. Rawat and Dinesh Dhar had either impersonated themselves in the course of the alleged transaction or had induced the LIC or any bank to act in any manner.
FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 21/37 2245. As regards the other two accused persons i.e. Devender Sharma and Vinay Singh, it may be noted that no direct incriminating evidence has surfaced in the testimonies of the witnesses, who were posted in LIC at the relevant point of time. However, the evidence of the bank officials as well as the documentary evidence emanating in light of the FSL report and questioned documents is of utmost relevance. Let me proceed to discuss the case against them in a step-wise manner by taking up individual charges.
46. The first charge against Devender Sharma and Vinay Singh is for the commission of the offence of cheating. The first question that arises is - who has been cheated? The witnesses from LIC have not brought any evidence to the effect that they were induced by the accused persons at any point of time. The witnesses from the bank, however, have identified the accused persons at the time of opening of accounts in the names of the policy holders.
47. Notably, the charge in the present matter has been framed collectively against all the accused persons and I have already observed above that the allegations against the accused persons are on different footings. Thus, I deem it fit to lay down the precise case of the prosecution against accused persons, namely, Devender Sharma and Vinay Singh in light of the original complaint. As per the original complaint and charge-sheet, the issue arose when four policies issued in the names of Sukh Dev Raj Khanna, Sudhir Khanna and Poonam Khanna were examined and it was discovered that the same were surrendered without any instructions from the policy holders and cheques were issued against the same for encashment. Later, three more FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 22/37 23 policies in the names of Sukh Dev Raj Khanna, B. Srivastava and Sunita Sharma were found to have been surrendered by using the same modus- operandi. During the course of investigation, it was further discovered that five more policies were surrendered and encashed in the same manner. The said five policies were issued in the names of Kanta Gupta, Somnath, Indra, S.K. Bhavnani and Poonam Khanna. Thus, in total, the issue pertained to the surrender of 12 policies. The 12 cheques issued by LIC in the names of the policy holders mentioned are Ex. PW-10/C (Collectively). Furthermore, in order to encash the said policies, a total number of eight fictitious bank accounts were opened by the two accused persons/agents in three banks, as noted above. For the purpose of clarity, it is important to note that five such bank accounts were opened in K.G. Marg Branch of HDFC Bank, two bank accounts were opened in K.G. Marg Branch of Bank of Baroda and one bank account was opened in Gandhi Nagar, Ghaziabad Branch of Bank of Baroda.
48. In light of the above, the crux of the allegation against Devender Sharma and Vinay Singh is that they presented some account opening forms for opening bank accounts in the names of policy holders, without any knowledge of the policy holders, and placed their own signatures in the column meant for the signatures of applicants/policy holders. Further, the accused persons presented fabricated cheques issued in the names of the policy holders and encashed the surrender value of the policies directly in their favour as the fictitious bank accounts were being operated by the accused persons only. Thus, the accused persons induced the bank officials to open fictitious bank accounts. The said accounts were then used for receiving the policy amounts. I may refer to FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 23/37 24 the account opening forms and cheques presented by the accused persons which are questioned documents in the present matter.
49. I may first refer to the account opening form of Kanta Gupta (Ex. PW-4/D) wherein Somnath is the second applicant as Kanta Gupta was a minor. In the signature column of the form, the signatures of the second applicant, namely, Somnath are questioned signatures mark as Q-
27. The questioned signatures on this form have been successfully matched with the admitted and specimen signatures of accused Devender Sharma. In the account opening form Ex. PW-4/E, similar conduct has been adopted with respect to the questioned signatures of Somnath (Q-
30). The said questioned signatures have also been successfully matched with the specimen/admitted samples of accused Devender Sharma. Therefore, the account in the name of Kanta Gupta was opened by accused Devender Sharma by making a false document by executing the document with the signatures of someone else. Similarly, in the account opening form of Indra Gupta (Ex. PW-4/C), the signatures of the second applicant i.e. Somnath Gupta are questioned signatures bearing Mark Q-
24. The said questioned signatures of Somnath have also been successfully matched with the specimen/admitted samples of accused Devender. Furthermore, in the account opening form of S.K. Bhavnani (Ex. PW-4/B), the signatures of the applicant are questioned signatures bearing Mark Q-22. The questioned signatures in the said form have also been successfully matched with the admitted/specimen samples of accused Devender Sharma. A peculiar feature of all these account opening forms is that the accused Devender Sharma acted as an introducer for all the applicants. The signatures of accused Devender FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 24/37 25 Sharma in the introducer's column have been matched with his specimen/admitted samples. Ld. Counsel for the accused submitted that the accused merely acted as an introducer for the applicants. However, the above discussion categorically reveals that the accused had not only acted as an introducer but had stepped into the shoes of the applicants to make false documents.
50. I may now refer to the account opening form of Barmeshwar Srivastava (Ex. PW-10/A), wherein signatures of the applicant are questioned signatures bearing marks Q-1 to Q-6. As per the FSL report, the said questioned signatures have been successfully matched with the specimen signatures of accused Vinay Singh (S-17 to S-28). Furthermore, the photograph of the applicant affixed on Ex. PW- 10/A is also of accused Vinay Singh and not of Barmeshwar Srivastava. Interestingly, on this account opening form as well, accused Devender Sharma is the introducer, thereby indicating that the accused persons namely Devender Sharma and Vinay Singh were acting in a coordinated manner and in furtherance of a prior concert and conspiracy. There is a common thread of conspiracy which runs through the conduct of both accused persons.
51. It is also relevant to note that in the account opening forms in the names of Kanta Gupta, Somnath, Indra Gupta and S.K. Bhavnani, the mailing address of the applicants is mentioned as L-246, Sector-9, New Vijay Nagar, Ghaziabad. On a perusal of the account opening form and nomination form of accused Devender Sharma (Ex. PW-4/F), the address of the accused is L-246, Sector-9, New Vijay Nagar, Ghaziabad. The said documents pertaining to the savings accounts of the accused are FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 25/37 26 admitted documents and they categorically reveal that the accused persons opened fictitious bank accounts in the names of the policy holders by placing their own signatures in the column meant for the signatures of the applicants and accused Devender Sharma mentioned his own address in the column meant for mailing address so as to receive the communications pertaining to the said bank accounts at his own address.
52. The original documents obtained from the banks further reveal that the cheque bearing No. 478177 for an amount of Rs.2,00,725/- was presented for encashment in the account of Somnath Gupta bearing A/c. No. 31000117902 and on the deposit slip, the depositor's signature Q-32 have been matched with the specimen/admitted samples of accused Devender Sharma, thereby meaning that the cheque was presented for payment by the accused. It further indicates that the cheque was presented for encashment in the fictitious accounts opened by the accused at K.G. Marg Branch of HDFC Bank in the name of Somnath Gupta. Similarly, there are various other deposit slips with questioned signatures of Somnath bearing marks Q-33, Q-34, Q-35, Q-36, Q-37 and Q-38 for encashment of cheques in the accounts opened in the names of Som Nath Gupta, Indra Gupta (minor) and Kanta Gupta. The questioned signatures on all these deposit slips have been successfully matched with the admitted signatures of accused Devender Sharma. The numbers of the cheques mentioned on all the deposit slips match with the original cheques issued by LIC which are collectively Ex. PW-10/C. It is also noteworthy that the accused persons were not even the agents of the policy holders involved in the matter and there was no authorization in their favour so as to perform any act on FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 26/37 27 behalf of the policy holders.
53. The deposit slip meant for the deposit of the cheque in the account opened in the name of S.K. Bhavnani bears questioned signatures of S.K. Bhavnani (Sanjay) marked as Q-40 and upon comparison, the said signature has also been successfully matched with the admitted/specimen signatures of Devender Sharma. The original cheques on record pertaining to account No. 31000117902 in the name of Somnath, account No. 31000123469 in the name of S.K. Bhavnani, account No. 31000118394 in the name of Indra Gupta (under guardianship of Som Nath Gupta), account No. 31000118014 in the name of Kanta Gupta (under guardianship of Som Nath Gupta) also contain various questioned signatures i.e. Q-43, Q-45, Q-42, Q-45, Q-47, Q-49, Q-53 and Q-55. All the questioned signatures have been successfully matched with the admitted/specimen signatures of accused Devender Sharma, thereby indicating that the cheques purportedly issued by the policy holders for encashment in their accounts, were actually executed and made by the accused and were presented for encashment in the fictitious bank accounts being operated by them in the names of the policy holders.
54. In light of the aforesaid analysis of the FSL report, following facts emerge before the Court : -
(1) The fictitious bank accounts in the names of the policy holders were opened by accused Devender Sharma and Vinay Singh, who had signed in the columns meant for the signatures of the applicants; (2) Accused Devender Sharma was the introducer in all the bank accounts in question;FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 27/37 28
(3) The cheques fabricated by the accused were presented for payment in the fictitious bank accounts opened by the accused persons and the same were cleared by the banks;
(4) The co-accused Vinay Singh had adopted a similar modus-operandi in opening the bank account of S.K. Bhavnani and B. Srivastava; (5) The photograph of the applicant on the account opening form of B. Srivastava was of accused Vinay Singh and the introducer was co-
accused Devender Sharma, thereby indicating a clean chain of conspiracy between the accused persons.
55. A perusal of the statements of account on record, pertaining to the fictitious bank accounts opened by the accused persons and the personal accounts of the accused persons, reveals that the amounts against the cheques issued by LIC were indeed credited in the fictitious bank accounts opened and operated by the accused persons and thus, the elements of delivery of property and wrongful gain are duly proved.
56. It is noteworthy at this stage that the original complainant had alleged that the accused agents, namely, Devender Sharma and Vinay Singh had stolen the policy surrender cheques of the policy holders from the office of LIC and had misused them by opening fictitious bank accounts. During the course of investigation, the concerned I.O. charge-sheeted the LIC officials, namely, L.S. Rawat and Dinesh Dhar on the ground that the said officials had cleared various surrender requests in violation of the mandate assigned to them. It was also alleged that the concerned officials had acted in contravention of the surrender policy of LIC. I have already noted above that sufficient FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 28/37 29 evidence against the LIC Officials has not surfaced in the present matter and it is quite possible that the cheques were in-fact stolen from the LIC office. Even if it is believed that the cheques were not stolen and were indeed provided to the accused agents by the LIC officials, I may suffice to note that sufficient evidence has not been gathered in this regard and the chain of circumstantial evidence is completely inconsistent. It is fairly settled that in a case based on circumstantial evidence, the chain must be consistent and must point in the direction of the guilt of the accused. In the present matter, various possibilities emerge from the chain of circumstances with respect to the LIC officials and I am constrained to grant benefit of doubt to accused L.S. Rawat and Dinesh Dhar. However, it is certain that cheques came into the possession of the accused agents and they were indeed used for the commission of offences, as discussed above.
57. So far as the accused agents, namely, Devender Sharma and Vinay Singh are concerned, the evidence on record indicates that they had induced the three banks in question to perform two acts - firstly, to open fictitious bank accounts in the names of the policy holders and secondly, to deliver the policy amounts in favour of the accused persons by transferring in the fictitious bank accounts. Both the acts were done by the bank officials on the basis of deception practiced by the accused persons. Section 415, the defining provision for the offence of cheating, includes inducement for delivery of any property and inducement to do something that the person on the other side would not have done except for the said inducement. In the present matter, the fictitious bank accounts were opened by the concerned banks only on the basis of the FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 29/37 30 inducement offered by the accused persons/agents and not otherwise. In fact, the inducement was also based on the fact that accused Devender Sharma had acted as an introducer.
58. Furthermore, it is fairly certain that the accused persons executed certain valuable instruments/securities/documents by impersonating themselves as the policy holders and the said impersonation was an integral part of the plot designed by the accused persons for cheating. The actual delivery of the cheated amount is also not in doubt as it has come in the form of documentary evidence including statements of accounts of the fictitious accounts and the personal accounts of the accused persons that the cheated amount was actually delivered to the accused persons as the same was deposited in the fictitious bank accounts, which were being operated by the accused persons. Furthermore, the forgery in the present matter pertains to valuable security i.e. cheques. The forgery pertaining to the account opening forms was also of such a nature that it enabled the accused persons to obtain valuable security and thus, the act committed by the accused persons falls squarely within the definition of Section 467 of IPC. The acts proved against the accused persons fall squarely within the essential elements of forgery as laid down by the Hon'ble Supreme Court in Mohd. Ibrahim (Supra), as reproduced above.
59. It emerges from the chain of circumstances and evidence on record that the said forgery was committed by the accused persons for the purpose of cheating i.e. for the inducement of the bank officials followed by deception and delivery of policy amounts. It is also not in doubt that the forged documents were used as genuine by the accused FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 30/37 31 persons in the concerned banks as they were presented for encashment. The deposit slips on record categorically indicate that the same were presented by the accused persons. Furthermore, the presence of the signatures of accused Devender Sharma as an introducer in the said bank accounts and the presence of the signatures/photograph of accused Vinay Singh are also indicative of the fact that the fabricated documents were used as genuine by the accused persons.
60. I may briefly address the submission on behalf of the accused persons that no wrongful loss was caused to the policy holders. In the present matter, the causation of any loss to the policy holders is not in question. The wrongful loss has been caused to LIC as the policies were indeed honoured by LIC when the real policy holders approached for surrender, despite the fact that the same policies were fraudulently encashed earlier by the accused persons. PW-6 and PW-7 have categorically confirmed the same. So far as their knowledge about the case is concerned, they were not expected to possess any knowledge as they were not instrumental in the entire chain of offence. It was sufficient for PW-6 and PW-7 to depose before the Court that they never applied for any surrender and thus, the surrender was based on fraud and deception. They deposed accordingly and in my opinion, it was sufficient.
61. Ld. Counsel for the accused persons submitted that the FSL report was not acceptable in evidence as the signatures of the accused persons were obtained without obtaining prior permission from the concerned Magistrate. I may suffice to note that at the relevant point of FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 31/37 32 time, there was no statutory requirement to necessitate prior permission of the Magistrate before obtaining specimen samples of handwritings and signatures. Section 311-A of Cr.PC was a recent addition in the erstwhile procedural code of 1973 and the same became operative only with effect from 23.06.2006. Admittedly, the samples in the present matter were obtained prior to that date and thus, the collection of samples of the accused persons could not be vitiated on this ground alone, that too by reading a procedural requirement which was neither a part of the statute nor necessitated by any authoritative pronouncement. To support the argument, reliance has been placed by the accused on the decision in Sukhvinder Singh v. State of Punjab AIR Online 1994 SC
545. In the said decision, a similar argument was raised but in a completely different context. In the said case, a direction to give specimen signatures was given by an executive magistrate. The case involved the method of comparison contemplated in Section 73 of the Indian Evidence Act and the Court observed that the said provision contemplated comparison of signatures by the Court. On the contrary, in the present mater, the FSL report has been led in evidence under Section 45 of the Indian Evidence Act and not under Section 73 thereof. PW-11 has been examined as an expert in the matter and there is no comparison by the Court under Section 73. Thus, the reliance on the aforesaid decision is misplaced. Independent of this argument, no ground has been raised to question the expertise of PW-11 or to question the method of comparison adopted by him. Moreover, there is no averment on the part of the accused persons that the signatures actually obtained by the IO did not belong to them. It is, no doubt, correct that the opinion evidence of an expert may be challenged on the basis of cogent facts. However, if the FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 32/37 33 expert evidence is creditworthy and the accused fails to raise any reasonable challenge against the same, the Court cannot reject it without a cogent, sound and reasonable basis. Thus, the ground appears to have been taken to dismiss the report of FSL expert on a technical premise and accordingly, I proceed to reject the same.
62. Ld. Counsel has also advanced a submission that conviction cannot be based solely on the evidence of a handwriting expert. In this regard, reliance has been placed upon the decision in Alamgir v. State (NCT) of Delhi AIR 2003 SC 282. The reliance, in my considered opinion, is misplaced. The decision cited by the accused persons is not an authority on the proposition that conviction cannot be based on expert evidence and the proposition put forth by the accused persons appears to be a misreading, or if I may say, selective reading of the judgment. For, in Alamgir, the Court succinctly analyzed the precedents on this point, especially the decision in Murari Lal v. State of Madhya Pradesh 1980 AIR 531, wherein the Hon'ble Supreme Court, while referring to the earlier precedents holding that corroboration of expert evidence is compulsory, has summarized as follows:
"The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement "it has almost become a rule of law'. "Almost", we presume, means "not quite". It was said by the Court there was a "profusion of precedential authority" which insisted upon corroboration and reference was made to Ram Chandra v. State of U.P., Ishwari Prasad v. Mohammad Isa, Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of M.P. We have already discussed these cases and observed that none of them supports the proposition that corroboration must invariably be sought before opinion-evidence can be accepted. There appears to be some mistake in the last sentence of the above extracted passage because we are unable to find in FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 33/37 34 Fakhruddin v. State of M.P. any statement such as the one attributed. In fact, in that case, the learned Judges acted upon the sole testimony of the expert after satisfying themselves about the correctness of the opinion by comparing the writings themselves. We do think that the observations in Magan Bihari Lal v. State of Punjab, must be understood as referring to the facts of the particular case."
(emphasis supplied) The Court then held thus:
In Murari Lal (supra) this court stated that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. We feel it expedient to record our concurrence therewith, though, however, we hasten to add that since human judgment cannot be said to be totally infallible, due caution shall have to be exercised and the approach ought to be that of care and caution and it is only upon probe and examination the acceptability or creditworthy of the same depends. The learned Sessions Judge as also the High Court did place, upon consideration of all relevant facts and material on record, reliance on the opinion of the handwriting expert and we do not see any reason to record a contra finding.
63. It emerges from the foregoing discussion that there is no rule of law that expert evidence alone cannot be acted upon. Moreover, in the present mater, the expert evidence is not isolated from the other corroborating material. The expert evidence is duly corroborated by the bank statements on record, original cheques on record issued by LIC and duly identified by the witnesses from LIC, the account opening form of the accused Devender Sharma, the original photograph of accused Vinay Singh, only to name a few. Thus, the conviction is not solely based on the handwriting expert's evidence and the submission is, accordingly, rejected.
64. Before parting, I may note that the circumstantial evidence on record is fairly consistent, uniform and trustworthy. There is no snap FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 34/37 35 or discontinuity in the chain of evidence and the entire chain unequivocally points in the direction of guilt of accused Devender Sharma and Vinay Singh. It would be apposite to refer to the decision of the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra 1984 4 SCC 116, wherein the "Panchsheel" or five principles of circumstantial evidence were laid down as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and.
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
65. In the present matter, the case of the prosecution satisfies the tests of circumstantial evidence laid down above. The only possible hypothesis is of the guilt of the accused persons and no other possibility emerges from the facts on record. There is no plausible defence or version put forth by the accused persons in this case. Even the statement FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 35/37 36 under Section 313 Cr.P.C is of complete denial and is not an expression on the facts of the case. In criminal law, guilt is to be determined when the Court arrives at a satisfaction that the offence " must have" been committed by the accused and not " may have". It has been held that this distinction between "must have" and "may have" is a legal distinction and is to be understood on the basis of the quality of evidence. In the present, it emerges that the accused persons must have committed the offence and I am unable to spot any doubt in the case of the prosecution. The acts committed by the accused persons are self-speaking and the principle of res ipsa loquitor can also be applied to explain the natural gaps occurring in the case of the prosecution. For instance, it is not clear as to how the cheques came in the possession of the accused persons. However, it is clear that they came in their possession and were indeed used by them to achieve well designed objectives. Thus, the fact becomes inconsequential as the actual chain of offence commences after obtaining the cheques. Similarly, the elements of dishonesty and fraudulent intent are apparent on the face of the conduct of the accused persons and no hard evidence is necessitated for the same. The very act of executing valuable financial documents in the name of another person followed by wrongful gain reeks of dishonesty. Section 114 of the Indian Evidence Act may also be pressed into service to infer the facts which appear in the natural course of things.
66. In light of the foregoing discussion, I am of the considered opinion that the prosecution has failed to discharge its burden against accused L.S. Rawat and Dinesh Dhar. The said accused persons are acquitted accordingly. However, the prosecution has successfully proved FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 36/37 37 the case against accused Devender Sharma and Vinay Singh beyond reasonable doubt for the commission of offences punishable under Sections 419, 420, 467, 468, 471 and Section 120-B of IPC. The accused persons, namely, Devender Sharma and Vinay Singh are convicted accordingly.
67. This judgment is contained in 36 pages and all pages have been signed by me at the bottom.
68. Put up for filing of affidavits of income and expenses in terms of the decision of the Hon'ble High Court in Karan Vs. State on 19.10.2024.
YASHDEEP Digitally signed by YASHDEEP
CHAHAL
CHAHAL Date: 2024.10.07 16:07:36 +0530
Announced in the open Court (Yashdeep Chahal)
On 7th October, 2024. Judicial Magistrate First Class-01 New Delhi District : Patiala House Courts New Delhi.
FIR No. 507/2000 State Vs. Devender Sharma & Others Page No. 37/37