Delhi District Court
State vs . Rakesh Sharma And Ors. on 4 June, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 210/1996
P.S. Defence Colony
U/s 420/468//471/34 IPC
State Vs. Rakesh Sharma and ors.
JUDGMENT :
a. Sl. No. of the case : 3/5
b. Date of Institution : 04.05.1996
c. Date of Commission of Offence : 01.03.199607.03.1996
d. Name of the complainant : Sh. R.V. Sharma
Senior Manager, Allahabad
Bank, New Delhi
e. Name of the accused and his : (1.) Rakesh Sharma
parentage and address S/o Darshan Kumar Sharma
R/oVillage Sunder Chowk,
Distt. Gurdas Pur,
Pathankot, Punjab
(2. Ramesh Kumar Gupta
S/o Raj Kumar Gupta
R/o J137, Sector22, Noida,
U.P.
(3.)Mehandi Hassan
S/o Ali Mehandi
R/o31B, LIG Flats, Prasd
FIR NO. 210/1996 PAGE 1 OF PAGE 22
PS DEFENCE COLONY
Nagar, Delhi
(Proceedings abated on
29.05.2001)
f. Offence complained of : U/s 420/468/471/34 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 04.06.2013
i. Final Order : Acquitted
j. Date of such order : 04.06.2013
1. The accused in this case was sent up for trial for the commission of offence U/s 420/468/471/34 IPC.
2. The facts in brief are that on 07.03.1996, at around 10.15/10.30 a.m., accused Rakesh Sharma presented a self cheque bearing no. 016519 for a sum of Rs. 1,00,000/ at the counter for payment. The counter clerk approached the Manger for instructions about the payment. In the meanwhile, Mr. R.K. Dhawan the complainant reached the bank for cash withdrawal. The Manager approached the complainant to confirm whether some of his signed cheques were missing and showed him the said signed cheque. On seeing the said cheque and his signature, complainant got shocked. The accused Rakesh Sharma was apprehended at the bank itself. Thereafter the accused Rakesh Sharma disclosed the complainant that the co accused Ramesh Kumar Gupta was waiting for him at Ring Road. On inquiry from the accused Rakesh Sharma, the complainant came FIR NO. 210/1996 PAGE 2 OF PAGE 22 PS DEFENCE COLONY to know that the coaccused namely Ramesh Kumar had made withdrawals worth Rs. 4,20,000/ through six cheques. Thereafter the coaccused Ramesh Kumar Gupta was also apprehended. Thereafter on the basis of the complaint of complainant, the present case FIR was registered in PS Defence Colony. Statement of witnesses were recorded. Accused persons were arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. During the course of proceedings, accused Mehandi Hassan had expired and proceedings against him were abated vide order dated 29.05.2001.
4. A prima facie case having been made out against the accused Rakesh Sharma and Ramesh Kumar Gupta respectively, charge was framed against the accused persons on 14.09.2004, under sections 420/468/471/34 IPC and charge u/s 420/468/34IPC to which they both pleaded not guilty and claimed trial.
5. To prove its case against the accused, the prosecution has examined ten witnesses namely HC Shri Pal as PW1, N.K. Tomar as PW2, R.B. Sharma as PW3, Harish Chand as PW4, Harish Chander as PW5, Sh. Puran Chand as PW6, Ct. Sivendrin Nair as PW7, Inspector Sunil Kumar as PW8, HC Dharambeer as PW9 and and FIR NO. 210/1996 PAGE 3 OF PAGE 22 PS DEFENCE COLONY Inspector Sunil Shrivastav as PW10.
6. PW1 Shri Pal has testified that on 26.04.1996, he got executed the proceedings u/s 82/83 Cr.P.C against accused Mehandi Hasan vide report Ex. CW1/A and CW1/B.
7. PW2 N.K. Tomar has testified that on 07.03.1996, one Sharma came in the bank to withdraw the cash amount of Rs. 1,00,000/ from the account of R.K. Developer Builders and Promoters. PW2 further testified that the accused Sharma produced the cheque on the counter. The counter clerk came to him and told that one person had come to withdraw the amount. PW2 further testified that prior to that, they had already received information from the account holder that payment should not be made because the cheques had been misplaced and due to that, he had made a request to stop the payment. PW2 further testified that at that time, the owner of the firm namely R.K. Dhawan had also came in the bank and he told him about the same and showed the cheque to him. The said cheque was signed by Mr. R.K. Dhawan. PW2 further testified that they inquired from the said boy from where he came on which he told that he came in the bank to withdraw the amount of Rs. 1,00,000/ as there was the marriage of daughter of Mr. Dhawan. The boy further told that he was working with Mr. Dhawan. On this, Mr. Dhawan asked the concerned boy that he did not know him FIR NO. 210/1996 PAGE 4 OF PAGE 22 PS DEFENCE COLONY and also did not know that there was a marriage of his daughter. PW2 further testified that Mr. Dhawan went to the Manager. That person was restrained by the bank Manager, Mr. Dhawan and other bank employees.
PW2 was cross examined by Ld. APP as he was resiling from his statement given earlier to the police. In his cross examination, PW2 has testified that the Manger of the bank informed all the staff that one person would come in the bank to withdraw the cash amount of Rs. 1,00,000/ by forged cheques bearing signatures of Mr. R.K. Dhawan. PW2 further testified that they apprehended one Rakesh Sharma present in the court, who tried to get withdraw the said amount. PW2 further testified that the Manager of the said bank called the police and handed over the accused to the police. In his cross examination by Ld. Defence Counsel, PW2 has testified that in the present case, no token was issued as there was instructions from the account holder to stop the payment. There was no written instructions about the stopping of payment. PW2 further testified that he had never signed any paper.
8. PW3 R.B. Sharma has testified that on on 07.03.1996, at about 10.30 a.m., he received telephone call from office of M/s R.K. Developers P. ltd. that some cheques issued by the client R.K. Developers had been misplaced and therefore no payment should be made from that account. PW3 further testified that he requested FIR NO. 210/1996 PAGE 5 OF PAGE 22 PS DEFENCE COLONY him to submit the details of the lost cheques. PW3 further testified that at about 11.00 a.m., one Rakesh Sharma present in the court, presented one cheque of Rs. 1,00,000/ to withdraw the cash amount. PW3 further testified that he had already informed all the staff regarding the receipt of the information about the lost cheque hence the concerned clerk to whom the cheque was presented by accused Rakesh Sharma, approached him. PW3 further testified that in the meantime,, Mr. R.K. Dhawan, M.D of M/s R.K. Developer P. Ltd. came in the bank for cash withdrawal and on seeing him, he immediately approached him whether the cheque presented in the bank was signed by him or not or had been lost or not. On this, Mr. R.K. Dhawan got shocked on seeing his signatures on the said cheque. PW3 further testified that on interrogation from accused Rakesh Sharma, he told him that he was withdrawing the amount of Rs.1,00,000/ as there was wedding of son of Mr. Dhawan. PW3 further testified that Mr. Dhawan denied the same hence they apprehended the accused Rakesh Sharma and thereafter he along with Mr. Dhawan and accused went at the crossing of Andrews Ganj where one Ramesh Kumar Gupta was waiting for accused Rakesh Sharma. PW3 further testified that they also apprehended Rakesh Kumar Gupta, present in the court. They brought both the accused persons to the police station where he made a complaint to the police which is Ex. PW3/A. PW3 further testified that on going through the record, they also found that both the accused persons FIR NO. 210/1996 PAGE 6 OF PAGE 22 PS DEFENCE COLONY in their connivance, had already withdrawn Rs. 4,20,000/ through six cheques. The IO had seized the cheque which was used by accused Rakesh Sharma which is Ex. P1 vide memo Ex. PW3/B. PW3 further testified that he also handed over six cheques to the IO which are Ex. P2 to P7 which were seized by the IO vide memo Ex.PW3/C. IO also seized the old cheques produced by him which are Ex. P8 to P12, to the IO vide memo Ex. PW3/D. Accused persons made disclosure statements in his presence vide memos Ex. PW3/E and F. The personal search of both the accused persons were also conducted vide memos Ex. PW3/G and H.
9. PW4 Harish Chand has testified that on 07.03.1996, one Rakesh Sharma present in the court had presented one cheque of the amount of Rs. 1,00,000/ to withdraw the cheque. PW4 further testified that on that day, they had already received an information through their Manager that some cheques of M/s R.K. Developers P. Ltd. had been lost and they also requested to stop the payment against the cheques from the account of R.K. Developers. PW4 further testified that at about 11.00 a.m., on receipt of a cheque of Rs. 1,00,000/ from accused Rakesh Sharma, the concerned clerk went to the Manager and informed about the cheque in question. On this, the bank Manager instructed the concerned clerk and other staff to apprehend the accused Rakesh Sharma, on which they apprehended him. In the meantime, account holder Mr. R.K. Dhawan, MD of the FIR NO. 210/1996 PAGE 7 OF PAGE 22 PS DEFENCE COLONY company came there to whom the Manger disclosed all the facts. PW4 further testified that the accused Rakesh Sharma was interrogated by Manager. Mr. R.K. Dhawan told to the Mangar that he did not give any cheque to the accused and same cheque was misplaced and it bears the forged signatures of the accused. PW4 further testified that accused Rakesh Sharma confessed that he along with accused Ramesh Gupta tried to commit this offence and they earlier also drew some cash amount in their connivance.
10. PW5 Harish Chander has testified that on 07.03.1996, accused Rakesh presented a cheque of Rs. 1 Lakh against the account of R.D. Developer, Builder and Promoters, Proprietor Mr. R.K. Dhawan to him. On that day, by chance Mr. R.K. Dhawan also came to the bank. Manager of the bank had received a call in the morning from a lady who instructed the bank to stop the payment of all the cheques of R.K. Developer. PW5 further testified that he immediately took the cheque to the Manger who inquired about the cheque from Mr. R.K. Dhawan. Mr. R.K Dhawan refused to had ever signed the said cheque and also stated that he did not know accused Rakesh. PW5 further testified that on the instruction of Manager, they checked the account of R.K. Developer and found that Rs. 5 lacs approx. had been withdrawn by the accused from the said bank account by presenting the cheques of R.K.Developer. PW5 further testified that the Manager, Mr. R.K. Dhawan along with FIR NO. 210/1996 PAGE 8 OF PAGE 22 PS DEFENCE COLONY the accused went to Defence Colony where the coaccused was arrested.
In his cross examination, PW5 has testified that he did not accompany the Manger and Mr. R.K. Dhawan to Defence Colony. PW5 further testified that coaccused Ramesh was not arrested in his presence.
11. PW6 Puran Chand has also deposed the same facts as deposed by PW5.
In his cross examination, PW6 has testified that he cannot tell that who had apprehended the accused Rakesh in the bank.
12. PW7 Ct. Sivendrin Nair has testified that on 07.03.1996, he along with IO of the case reached the spot where IO handed over him the rukka which he took to PS Defence Colony for registration of FIR. After registration of FIR, he came back to the spot with copy of FIR and original rukka and handed over the same to the IO.
13. PW8 Inspector Sunil Kumar has testified that on 07.03.1996, complainant R.K. Sharma who was the Manger of Allahabad Bank, came to chowki along with one Mr. R.K. Dhawan and accused Rakesh Sharma and Ramesh Kumar Gupta and handed over his complaint to him on which he prepared the rukka vide Ex. PW8/A and handed over the same to Ct. Sivendrin for the registration of FIR FIR NO. 210/1996 PAGE 9 OF PAGE 22 PS DEFENCE COLONY and he got the FIR registered. PW8 further testified that he seized the cheques given to him by the complainant vide memo Ex. PW3/B and C. He had arrested the accused persons and conducted their personal search vide memos Ex. PW3/G and H. He recorded the disclosure statements of both the accused persons vide memos Ex. PW3/E and F. He also prepared the pointing out memo on the statement of accused Ramesh Kumar Gupta vide memo Ex.PW8/B. In his cross examination, PW8 has testified that the cheque in question was presented by accused Rakesh Sharma in bank. PW8 further testified that the cheque was forged and fake signature of R.K. Developers were appearing on the same. PW8 further testified that the payment of the cheque amount was collected by accused Rakesh Sharma. PW8 further testified that when the cheques were presented for encashment and it was found that the cheques were not signed/issued by Sh. R.k. Dhawan, accused Rakesh Sharma who had presented the cheque, was apprehended by the bank official. PW8 further testified that no complaint regarding theft/missing of cheques was ever lodged with him by Sh. R.k. Dhawan. PW8 further testified that he had not collected any documents regarding the ownership/Management of R.K. Developer.
14. PW9 HC Dharambeer has testified that on 07.03.1996, on receipt of rukka through Ct. Sivender, he recorded the present case FIR which is Ex. PW9/A. FIR NO. 210/1996 PAGE 10 OF PAGE 22 PS DEFENCE COLONY
15. PW10 Inspector Sunil Shrivastava has testified that on 04.04.1996, the further investigation of the case was marked to him. He tried to trace the accused Mehandi Hassan and for this purpose, he got issued NBWs of the accused from the court. Later on, he got the process issued u/s 82/83 Cr.P.C against accused Mehandi Hassan. During investigation, he also got the specimen signature/handwriting of Mr. R.k. Dhawan who was authorized signatory of M/s R.K. Developers P. ltd. He also obtained the admitted signatures/handwritings of Mr. R.K. Dhawan from the Allahabad Bank, Anand Lok, Udai Park vide memo Ex. PW3/D. PW10 further testified that he sent the specimen as well as admitted signature/handwriting and questioned documents to the FSL, Delhi for obtaining the expert opinion on them.
16. After closing of prosecution evidence, statements of both the accused persons were recorded U/s 281 r/w 313 Cr.P.C. In their statements, accused persons have denied to have committed the offence and claimed to have been falsely implicated in this case. However, both the accused persons have denied to lead defence evidence.
17. I have heard the Ld. APP for the State and Ld. Counsel for both the accused persons and have also perused the record.
18. The accused has been tried for offences of forgery and cheating. He FIR NO. 210/1996 PAGE 11 OF PAGE 22 PS DEFENCE COLONY allegedly forged certain cheques belonging to M/s R.K. Developers PVt Ltd. and withdrew money from their bank account. In support of the charges against the accused, the prosecution has examined ten witnesses.
19. The cheques in question were the property of M/s R. K. Developers Pvt. Ltd. The money which was withdrawn by the accused also came from the bank account of M/s R. K. Developers Pvt. Ltd. However, the prosecution has not examined any witness from this Company. One witness namely R.K. Dhawan who is stated to be the director of the said company has been cited as a witness in the charge sheet. However, he happened to expire before he could be examined in the court and as such his evidence could not be recorded. Apart from him, no other person associated with the said company has been cited as a witness. The omission of the prosecution to produce any witness from the concerned company eludes wisdom, much less any plausible explanation. In a criminal trial, it is prosecution which carries the burden of proving all the elements of the offence by establishing all the links in the chain of the evidence. Here, the prosecution has not even thought it proper to examine any witness from the company which is the origin of the offence. The death of one witness, viz. R.K. Dhawan, could not have rendered the prosecution so helpless as not to be able to bring on the stand any other witness from the concerned company to prove that the FIR NO. 210/1996 PAGE 12 OF PAGE 22 PS DEFENCE COLONY company had lost certain cheques which landed in the possession of the accused. The lady who called the bank to stop the payment of the cheques was not even interrogated during the investigation; leave alone her production in the court.
20. Nor has the prosecution produced any document from the record of the company to establish that the cheques in question belonged to the company. There is no evidence to show if any complaint was lodged by the company with regard to the loss or theft of the cheques. There is no material placed on record by the prosecution which may show as to how the accused came to have the possession of these cheques. In case seven cheques were lost or missing, it was not a normal conduct on the part of the company to fight shy of making any formal complaint with the police. The police do not seem to have ever visited the office of the company. At least, the record does not reflect any such proceedings. The cheques book which contained the missing cheques has not been produced before the court because the same was never seized by the police, though it was a material piece of evidence to complete the chain. In any case, the prosecution has not come up with any allegation of theft or trespass against the accused in the charge sheet. The prosecution story, itself, starts from the bank and ends there without ever bothering to direct its attention towards the company which actually suffered the loss.
FIR NO. 210/1996 PAGE 13 OF PAGE 22 PS DEFENCE COLONY
21. The essence of the offence of cheating punishable under section 420 IPC is deception of a person by fraudulent or dishonest inducement by accused causing the former to deliver certain property. The complaint which is proved as ex. PW3/A discloses that before the accused was caught by the bank officials while presenting cheque No. 016519, he had already encashed remaining six cheques and withdrawn an amount of Rs 4,20,000 from the bank account of the R.K. Developers Pvt Ltd. The details of those six cheques have been given in seizure memo which is proved as ex. PW3/C. But the prosecution has not produced any record either from the concerned bank or from the company to substantiate this fact. Mere oral testimony is not sufficient to establish that aforesaid amount was withdrawn by the accused. The prosecution should have produced the relevant record from the bank as well as from the company to establish the unlawful loss. There must be material on record to show as on what dates those cheques were presented in the bank and when the money was withdrawn. The record showing the deduction of the alleged amount from the bank account was a material link in the chain of evidence which is totally missing in this case.
22. The seizure memo Ex.PW3/C merely contains the details of the cheques with amount and dates of issuance. But in order to attract the provisions of section 420 IPC, there must be evidence to establish element of dishonest or fraud. In other words, the prosecution must FIR NO. 210/1996 PAGE 14 OF PAGE 22 PS DEFENCE COLONY adduce evidence to prove wrongful loss to the complainant or wrongful gain to the accused. The prosecution has not adduced any evidence to prove either. No recovery of money has been effected from the possession of the accused. In fact, no investigation appears to have been conducted in this respect. The seven cheques seized and produced before this court are no proper evidence to prove the loss or gain. As it happens, the prosecution evidence is not convincing in respect of the amount withdrawn by the accused. PW5, the head cashier of the bank, and PW6, bank officer, have deposed that a sum of Rs 5 lacs was found to have been withdrawn by the accused by presenting the cheques of R.K. Developers. On the other hand, the remaining witnesses place the amount at Rs. 4,20,000/. Thus even the prosecution is not sure about the amount withdrawn by the accused. The evidence does not establish the elements of cheating.
23. In this case even the identity of the accused has not been established beyond reasonable doubt. PW2 has not deposed anything with regard to the identity of the accused in his examinationinchief. He has only deposed about the identity of accused only when he was cross examined by Ld. APP. In any case, he has not identified the accused Ramesh Kumar in the court. PW3 has identified the accused in the court but his testimony is not admissible as the same has not been subjected to cross examination. Further, PW4 has been examined twice before the court as PW4 and PW5. In his first FIR NO. 210/1996 PAGE 15 OF PAGE 22 PS DEFENCE COLONY testimony, PW4 has identified the accused Rakesh Sharma, but he has not been cross examined and in the second examination in chief, he has not identified either of the accused. In any case, the testimonies of PW3 and PW4 are not admissible evidence as they have not been subjected to cross examination. The testimonies of both these witnesses were deferred after their examination in chief was recorded by the court and subsequent thereto neither of them appeared for cross examination. In Paritosh Ghosh v. Ashim Kumar Gupta,2003 AIHC 291,295, Calcutta it has been held that "where a witness did not appear for cross examination after getting himself examined in chief, such nonappearance of the witness for cross examination would lead to an adverse inference against the testimony of his statement made in his examination inchief". Hence the evidence of PW3 and PW4 are not admissible and cannot be read against the accused persons.
24. Coming to offence of forgery, the prosecution evidence again falls short of proving the ingredients of the offence. First of all, the cheques which are alleged to have been forged have not been proved by leading the proper evidence in accordance with the provisions of the Indian Evidence Act. It is well settled principle of law that the documents upon which reliance is sought to be placed must be brought on records of the case legally. Documents do not prove themselves; some witness must be examined to prove them.
FIR NO. 210/1996 PAGE 16 OF PAGE 22 PS DEFENCE COLONY
25. In Ramji Dayawala and Sons (P) Ltd. v. Invest Import, 1981 A.I.R. (SC) 2085, the Supreme Court, while relying upon decision in Judah v. Isolyne Bose (AIR 1945 PC 174) has held that If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. IF the truth of the contents itself is in issue, the proof of the documents, namely, proving the genuineness and contents by producing the same would not be sufficient to prove the contents of the document unless the writer of the document is examined. In the absence of such evidence, the contents may constitute hearsay evidence. The said decision was again followed in V Satyavathi vs P Venkataratnam 1988 (1) ALT 915.
26. In the present case, the prosecution has not examined any witness to prove the alleged forged cheques. All these cheques seized by the police belonged to M/s R.K. Developers Pvt. Ltd. But as earlier pointed out, no witness from the company has been examined. The only witness who has testified about the seizure of cheques by the IO is PW3, Manager of the concerned bank. He has proved the cheques in question as ex. P1 to P7 without stating anything about the FIR NO. 210/1996 PAGE 17 OF PAGE 22 PS DEFENCE COLONY contents thereof. He has also testified about the cheques P8 to P12 which are genuine cheques issued by R.K. Dhawan to establish the handwriting of the latter. However, he is not the author of these cheques since he did not write the contents therein. The testimony of PW3 is, otherwise, also not admissible as having not been subjected to cross examination.
27. The prosecution has placed on record the report of handwriting expert. No witness has been examined from the CFSL to prove the same. However, section 293 of Cr PC enables the court to admit the reports of certain Government analysts as evidence without examining the same. The report in the present case has been submitted by the Chemical examiner who falls in the category specified in the section and as such can be read in evidence without formal proof. According to said report, none of the forged cheques is signed by Mr. R.K. Dhawan. However, the report also does not say that all the cheques with all their contents have been written by either of the accused tried for the offence. The report shows that accused Rakesh Sharma appears to have written his name on the back of cheques no. 016519, 016510 and 016512 and accused Ramesh Kumar might have written the amount of Rs. Thirty Thousand in words on cheques no. 016502. Other contents in the cheques are not stated to have been written by either of the accused. As per report, it was not possible to express any opinion on rest of the items on the basis of FIR NO. 210/1996 PAGE 18 OF PAGE 22 PS DEFENCE COLONY material provided by police. Thus, the report does not make it very clear as to who had written those cheques. Admittedly, the signatures of Mr. R.K. Dhawan on these cheques are not in the handwriting of the accused persons. It follows that rest of the contents of the cheques were not written by the accused. The deposit slip is also not reported to have been written by accused.
28. Thus in the present case, the report of handwriting expert does not prove the involvement of accused persons to the hilt. Otherwise also, an expert opinion, in itself, has never been considered as conclusive evidence to record conviction. Report of a handwriting expert cannot form a sole basis for holding the accused guilty. The position in law is well settled with profusion of case laws. It was held by the Supreme Court in Ram Chandra v. State of U.P. (AIR 1957 SC 381) that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction but it may be relied upon when supported by other items of internal and external evidence. The Apex Court again pointed out in Ishwari Prasad v. Md. Isa (AIR 1963 SC 1728) that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) where it was held that expert evidence as to handwriting being opinion evidence can rarely, if every take the place of substantive evidence and before acting on such evidence, it would be desirable to FIR NO. 210/1996 PAGE 19 OF PAGE 22 PS DEFENCE COLONY consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.
29. The Supreme Court again had occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. (AIR 1967 SC 1326) observing that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. The similar observations have been made in Magan Bihari Lal v. State of Punjab (1977(2) SCC 210), Murarilal v. State of M.P 1980 A.I.R. (SC) 531 and recently in Alamgir v. State (NCT, Delhi) 2003 SCC (Cri) 165 and Musheer Khan v. state of Madhya Pradesh (2010) 2 SCC 748.
30. The evidence of handwriting is also hit by another glitch. The specimen handwriting of the accused was taken by the police on 07.03.1996 and it was taken without the permission of any competent magistrate. Currently section 311 A of Cr PC enables a magistrate to direct any person to give his specimen signatures or handwriting for the purpose of investigation. But this provision was introduced in the code by the Cr PC (Amendment) Act, 2005 and notified on 21.06.2006 and previously there was no such provision of law to empower the police or magistrate to order the accused to provide FIR NO. 210/1996 PAGE 20 OF PAGE 22 PS DEFENCE COLONY specimen signatures or handwriting. In State of UP v. Ram Babu Mishra AIR 1980 791, the Supreme Court had the occasion to deal with the issue. It was held that magistrate is empowered to direct the accused to give his specimen signatures or handwriting in terms of section 73 of the Evidence Act during the trial but not during the investigation. During investigation, provision contained in sections 4 and 5 of Identification of Prisoners Act, 1920 are applicable which entitle the investigating agency to secure photographs and measurements including thumb and foot print impressions of accused, but signatures and handwriting are excluded from their operation. The said decision was followed by the Andhra Pradesh High Court in Bojja Krishna Reddy v. State of A.P, 2003(1) R.C.R. (Criminal) 844 and position was summed up; Firstly, the Magistrate cannot direct an accused person to provide specimen signature or handwriting during investigation. Secondly, the Magistrate has got jurisdiction to direct the accused to furnish the specimen signature or handwriting for the purpose of comparison after the court is seized of the matter. Thirdly, the investigating officer has every right to invoke the jurisdiction of the Magistrate to compel a person to give measurements, namely, thumb impressions, foot impressions and photographs by virtue of powers vested under Section 4 of the Identification of Prisoners Act of 1920. Thus, it can be safely held that the police in this case was not empowered to obtain the specimen signatures and handwriting of the accused persons and the act was FIR NO. 210/1996 PAGE 21 OF PAGE 22 PS DEFENCE COLONY clearly in violation of prevailing provisions of law and as such not admissible in evidence.
31. In view of the reasons above mentioned, the prosecution has brought on record no clinching evidence which proves beyond a reasonable doubt the guilt of the accused persons and they both are given the benefit of doubt and therefore accused Rakesh Sharma and Ramesh Kumar Gupta are acquitted for the offence punishable U/s. 420/468/471/34 IPC for which they both stand charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 04.06.2013 Metropolitan Magistrate
South East/New Delhi
FIR NO. 210/1996 PAGE 22 OF PAGE 22
PS DEFENCE COLONY
FIR No. 210/1996
P.S. Defence Colony
U/s 420/468/471/34 IPC
04.06.2013
Present: Ld. APP for the State.
Both accused are on bail with counsel.
Vide my separate judgment dictated and announced in the open court, both the accused persons are acquitted for the offence punishable U/s 420/468/471/34 IPC for which they stands charged.
Both the accused persons are readmitted to bail on furnishing fresh bail bond in the sum of Rs. 15,000/ each with one surety each in the like amount. Bail bonds furnished. Same are accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/04.06.2013
FIR NO. 210/1996 PAGE 23 OF PAGE 22
PS DEFENCE COLONY