Delhi District Court
Complainant Devender Kumar Sharma Pw2 ... vs Unknown on 13 December, 2018
THE COURT OF SH. BABRU BHAN
METROPOLITAN MAGISTRATE -07, CENTRAL,
ROOM NO. 345, TIS HAZARI COURTS, DELHI
STATE
VERSUS
SUSHMA GULATI ETC.
CASE NO. 298778/2016
FIR No. 210/06
P.S- SUBZI MANDI
U/S- 420/468/471 IPC
1.Date of commission of offence: May, 2006
2. Name of the Complainant : BASUDEV Senior Superintendent of Post Officer, North Division, Delhi.
3. Name of the accused, and SMT. SUSHMA GULATI his parentage and residence : W/o- Sh. Anil Kumar, R/o- Flat No. 19, Pocket 7, Sector 2, Rohini, Delhi-85.
4. Date when judgment : 22.11.2018 was reserved
5. Date when Judgment : 13.12.2018 was pronounced
6. Offence Complained of : Section 420/468/471 IPC or proved
7. Plea of accused : Pleaded not guilty
8. Final Judgment : CONVICTED FOR THE OFFENCE U/s 420 IPC.
Brief Statement of reasons for the decision of the case:
1. Complainant Devender Kumar Sharma PW2 was maintaining two Monthly Income Scheme (hereinafter referred as MIS account) in Malkaganj Post Office. One account No. 633739 was in the joint name of the complainant and his father. The second account bearing No. 633763 was jointly opened by the complainant with his wife. The case of the prosecution is that accused Sushma Gulati who was working as counter clerk in the Post Office, fraudulently obtained the passbook of the abovesaid two MIS accounts of the complainant, made fraudulent withdrawal of the entire amount and thereafter, closed the account without the consent of the complainant.
2. An inquiry was conducted against accused Sushma Gulati by the concerned Post Office. After conclusion of enquiry, liability was fixed upon accused Sushma Gulati and complaint Ex. PW1/A was made by PW1 Basudev, Senior Superintendent of Post Office. On the said complaint, SI Vijay prepared rukka on the basis of which ASI Harphool Meena registered FIR Ex. PW5/A. During investigation, IO obtained the relevant documents alongwith the admitted specimen signatures of the complainant and the accused persons. During enquiry conducted by the Post Office, all the requisite documents were sent for opinion of the handwriting expert. After examination, expert gave their report which are Ex. PW6/B and Ex. PW6/C. IO collected the report and filed the same alongwith the charge-sheet.
3. On completion of investigation, IO filed charge-sheet thereby accusing the accused for the offences U/s 420/468/471 IPC. A formal charge for the same offences were framed on 26.08.2016 to which accused pleaded not guilty and claimed to be tried.
4. Accused Baldeep and Kuldeep were summoned by the Court but prosecution failed to adduce any evidence against them. Therefore, they were acquitted at the stage of recording of statement U/s 313 Cr.P.C r/w 281 Cr.P.C.
5. During prosecution evidence, prosecution examined six witnesses.
6. Ct Premwati CW4 is attesting witness to the arrest, personal search memo and disclosure statement of the accused which are Ex. PW4/A, Ex.
PW4/B and Ex. PW4/C respectively.
7. ASI Harphool Singh PW5 registered FIR Ex. PW5/A in the capacity of Duty Officer.
8. Dr. Ravindra Sharma, Assistant Director and Scientific -C, CFSL, Bhopal entered the witness box as PW6 and proved the report of handwriting expert which are Ex. PW6/B and Ex. PW6/C.
9. Basudev PW1 has deposed in his Court statement that on 19.05.2006, he was posted as SSPO North Division, Delhi. On that day, he made complaint to SHO, PS- Subzi Mandi regarding fraudulent withdrawal from MIS No. 633739 and 633763 in the name of Budhsen Sharma and Devender Kumar Sharma and Devender Kumar Sharma and Sanyogita Sharma. Further deposed that on 20.10.2004, Devender Kumar Sharma had approached Malkaganj Post Office for issuance of duplicate passbook and alleged that money was fraudulently withdrawn from the aforesaid account. Complainant claimed that he never withdrew the said amount. Complainant also denied the signatures on the withdrawal forms. On enquiry, it was revealed that the amount was withdrawn from both the accounts of the complainant on 18.10.2004 and 19.10.2004. The maturity amount of both the account were paid by Post Office to the applicant. Further stated that Postal Assistant Sushma Gulati destroyed the form SB7. The matter was reported to the SHO, PS- Subzi Mandi vide complaint Ex. PW1/A.
10. Devender Kumar Sharma PW2 deposed that he had opened two joint accounts alongwith his father and wife Sanyogita bearing No. 633739 and 633763. In October, 2004, he went to Post Office for obtaining of his passbooks. During his visit, he met counter clerk Sushma Gulati and handed over the passbooks for updation. Sushma Gulati told the complainant to leave the passbooks with her as entries of 6-7 months were made and the process was going to consume some time. She asked the complainant to return after seven days. When the complainant again visited the Post Office to collect the passbooks, he was informed that account No. 633739 was closed. On enquiry, complainant was told that it was premature closing. Sushma Gulati also told the complainant that the amount of Rs. 10,000/- was released through a KVP issued in the name of the complainant. On further enquiry, accused Sushma Gulati further told that one Rajni Sachdeva filled up the form for issuance of KVP. Further, amount of Rs. 18,000/- were withdrawn in cash and account was closed. When complainant sought the details about the closure of the account, accused Sushma Gulati refused to provide any such detail. Accused also handed over one application form for issuance of duplicate passbook. Thereafter, complainant left the office. On next day when he visited the office, he was told by the accused that his account No. 633763 was also closed premature and one cheque had been prepared. Thereafter, PW2 went to Assistant Postmaster Mr. Sharma to make a complaint. Assistant Postmaster called accused Sushma Gulati in his office and asked to produce SB7 form. She returned with SB7, torn it and gulped down the same. One Ishwar Lal was also present at that time. He further stated that during investigation, IO had shown some documents to him to identify some signatures. Witness was confronted with the disputed signatures on the questioned documents wherein he denied his signatures on point Q2, Q8 and Q9. He admitted his signatures on account opening forms Ex. PW2/A and Ex. PW2/B of both the account as well as identified the signatures of his father and wife.
11. Rajani Sachdeva PW3 deposed that in year 2004, she was working in Malkaganj Post Office as an agent. Her duty was to prepare KVP, NSC, MIS etc. On 19.10.2004, accused Sushma Gulati visited the aforesaid branch of Post Office and produced form already signed by Devender Kumar Sharma PW2 and amount of Rs. 10,000/- and sought issuance of KVP. After receiving the aforesaid amount of Rs. 10,000/-, this witness issued KVP bearing No. 45880 in the name of Devender Kumar Sharma. She identified her signatures on the form Ex. PW3/A. She further stated that she received the requisite amount from the accused in discharge of official duty.
12. During the statement of accused recorded under the mandate of Section 313 r/w 281 Cr.P.C, she pleaded innocence and tendered explanation that she has been falsely implicated.
13. Arguments heard. Record perused.
14. Accused has been charged for the offence U/s 420/468/471 IPC. First, I would proceed to deal with the offence of cheating made punishable U/s 420 IPC. This Court deem it appropriate to first set down the statutory elements of offence of cheating as under:
(1) Deception by any person,
(2) (a) Fraudulently or dishonestly inducing
that person,
(i) To deliver any property to any
person or to consent that any
person retain the property,
(b) Intentionally inducing that person to do
or omit to do anything which he would not
have done or omit to do if he were not so
deceived,
(3) Such act or omission causes or likely to
cause damage or harm to that person in body,
mind, reputation or property.
15. The word deception has not been defined in IPC but a person is said to be deceived when he was induced to believe a fact as true which was untrue. In the given case, as emerged from the statement of Devender Kumar Sharma who stated that in October, 2004, when he visited Post Office for obtaining of his passbooks, he met counter clerk Sushma Gulati. Accused Sushma Gulati asked him to hand over the passbooks to her for updation and retained the same on the pretext that entries of 6-7 months were to be made and the process was going to consume some time. Relying upon the accused Sushma Gulati, PW2 left his passbooks with her. When PW2 again visited Post Office to take back his passbooks, accused Sushma Gulati refused to return the same on the pretext that same were missing. She also informed PW2 that his accounts were closed and the money had been withdrawn.
Similarly, Rajani Sachdeva PW3 has deposed that 19.10.2004, accused Sushma Gulati visited the aforesaid branch of Post Office. She produced form already signed by Devender Kumar Sharma alongwith amount of Rs. 10,000/- and sought issuance of KVP. After receiving the aforesaid amount from accused, PW3 issued KVP No. 45880 in the name of Devender Kumar Sharma. The witness further stated that she had issued the said KVP after receipt of requisite amount in discharge of official duties.
16. Ld defence counsel attempted to assail the truthfulness of Devender Kumar Sharma PW2 by cross-examining him on the lines that he had not obtained any receipt regarding handing over of passbooks to accused Sushma Gulati despite the fact that she was known to him since October 2004 only. Ld counsel also highligted the admission made by PW2 that he had not made any complaint to officer of the Post Office regarding missing of his passbooks by accused Sushma Gulati. In addition, Ld counsel has also sought to challenge the credibility of this witness on the ground that he failed to tell some details of his date, time and number of his visits to the Post Office.
Similarly, Ld counsel has cross-examined Rajani Sharma PW3 on the lines that Sushma Gulati never approached the said Post Office and Devender Kumar Sharma PW2 himself visited the Post Office for withdrawal of the amount and the KVP was handed over to Devender Kumar Sharma PW2 and not to accused Sushma Gulati. PW3 denied all these suggestions.
17. From the suggestion given to PW3, it can be safely gathered that the accused is not disputing the withdrawal of the amount. The line of defence claimed by the accused is that withdrawal was made by Devender Kumar Sharma and not by the accused. The cross-examination of Devender Kumar Sharma PW2 would reveal that not even a single suggestion was given to this witness that he himself had withdrawn the amount from the Post Office. Further, it has come on record and has also not been disputed that Rajni Sachdeva was working in the Post Office alongwith accused Sushma Gulati. Had accused Sushma Gulati not made any fraudulent withdrawal, Rajani Sharma PW3 had no reason or occasion to level false allegations against the accused. It is not the case of the accused that Rajni Sachdeva PW3 has any enmity or rancor with her due to which she falsely implicated the accused.
18. Similar is the case with Devender Kumar Sharma PW2. Had Sushma Gulati not obtained the passbooks from PW2 on the pretext of their updation, Devender Kumar Sharma PW2 would not have leveled allegations against her. The fact that PW2 deposited the passbooks with the accused in the second or third week of October 2004 and immediately thereafter, the amount was withdrawn on 18.10.2004 and 19.10.2004 indicates towards the culpability of the accused. On the basis of the testimony of Devender Kumar Sharma PW2 and Rajani Sachdeva PW3, it has been proved that first Sushma Gulati obtained the passbooks from the PW2 on the pretext of updation of his account transactions. When PW2 again went to collect the passbook, she informed him that the passbooks were missing and the accounts were closed. In the meanwhile, accused Sushma Gulati presented a form allegedly signed by Devender Kumar Sharma PW2 before Rajani Sachdeva PW3 and obtained KVP of Rs. 10,000/- in her favour.
19. This entire evidence goes to show that accused Sushma Gulati had obtained the passbooks of the complainant on the false pretext of updation of the account knowing that same were not required to be retained. Thereafter, she further deceived Rajani Sachdeva PW3 by producing form Ex. PW3/A and got issued KVP. So, obtaining passbook of the complainant and receiving KVP in the name of Devender Kumar Sharma PW2 by deception stands proved.
20. So far as withdrawal of the amount is concerned, Basudev PW1 has stated that enquiry was conducted and it was revealed that Rs. 1575/- I.e interest of 7 months of accused No. 633739 and Rs. 2366/- i.e interest of 7 months of accused No. 633763 were paid to the applicant on 18.10.2004. On the next day, i.e on 19.10.2004, both accounts were closed and maturity amount of Rs. 28,950/- of MIS account No. 633739 and Rs. 43,425/- of MIS account No. 633763 was indebted from GPO Delhi.
During cross-examination, not a single question was put to the accused disputing the withdrawal of the aforesaid amount.
During cross-examination of Devender Kumar Sharma PW2 also, the factum of the withdrawal of the amount appears to be not disputed as the witness was not cross-examined on this point.
Thus, the withdrawal of the amount from the MIS accounts of the complainant stands proved.
21. Now, the question is who had withdrew the amount. For this purpose, the statement of Rajani Sachdeva PW3 that on 19.10.2004, accused had produced a form Ex. PW3/A and amount of Rs. 10,000/- for issuance of KVP is relevant. Further, although it has not been proved by the prosecution that from whom the form Ex. PW3/A was obtained but Rajani Sachdeva PW3 identified her signatures on the form and handwriting expert Dr. Ravinder Sharma PW6 gave his opinion Ex. PW6/B and Ex. PW6/C that the form was not bearing signatures of Devender Kumar Sharma PW2. Thus, the statement of Rajani Sachdeva PW3 and form Ex. PW3/A when seen in light of previous conduct of the accused Sushma Gulati is sufficient to indicate that none other that accused Sushma Gulati had withdrew the amount from the account of Devender Kumar Sharma PW2.
22. Accused Sushsma Gulati has also been charged for the offences U/s 468/471 IPC. Although, the prosecution has relied upon many documents in this regard including documents Ex. PW3/A. However, in absence of the IO, it could not be established that when and from whom these documents were collected and sent to FSL. No seizure memo has been proved on record. In these circumstances, it cannot be held that the documents which were sent to the laboratory for examination were the same which were seized by the IO in connection with the present case. Thus, the offence of forgery U/s 468 IPC and use of forged documents U/s 471 IPC are not made out.
23. Accused Sushma Gulati stands convicted for the offence punishable U/s 420 IPC. BABRU Digitally signed by BABRU BHAN BHAN Date: 2018.12.15 13:30:34 +0530 ANNOUNCED IN THE OPEN (BABRU BHAN) COURT ON 13.12.2018 METROPOLITAN MAGISTRATE-07 CENTRAL/TIS HAZARI COURTS, DELHI.