Jammu & Kashmir High Court
Bodh Raj vs State Of J&K; on 14 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Appeal No. 48/2012, MP Nos.D-08/2015 & 20/2014
Date of decision:14.09.2017
Bodh Raj vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Appellant(s) : Mr. S. K. Anand, Advocate.
For the Respondents(s) : Mr. S.S. Nanda, Sr. AAG.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. In this appeal, the appellant has assailed the judgment dated 12th May, 2012 passed by the Principal Sessions Judge, Jammu, by virtue of which he has been convicted under Sections 420 and 467 RPC and the order dated 17th May, 2012, by virtue of which the appellant has been sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 1,50,000/- (Rupees One Lac and Fifty Thousand) under Section 420 RPC and rigorous imprisonment for ten years and a fine of Rs. 2.00 lacs (Rupees Two Lacs) under Section 467 RPC. Both the sentences were ordered to run concurrently.
2. In the memo of appeal, it has been stated that the complainant, namely, Sheran Bibi had deposited Rs.4.00 lacs (Rupees Four Lacs) with the Finance Company of the appellant, out of which, she has withdrawn Rs. 83,000/- on different occasions and the appellant refused to pay the Cr. Appeal No.48/2012 Page 1 of 11 2 balance of Rs. 3,17,000/- when demanded and had fraudulently transferred the same to the loan account of the husband of the complainant, namely, Bashir Ahmed, who alleged to have borrowed loan of Rs. 3,50,000/- from the company of the appellant by forging an application of the complainant for transfer of the amount to the loan account of the husband of the complainant and also forging the Hundi for Rs. 3,50,000/- in the name of the husband of the complainant. The FIR was lodged by the Finance Minister on the complaint of the complainant.
3. It is stated that when both the documents, i.e. Transfer Application of the complainant for transfer of the amount to the loan account of her husband and the Hundi were sent to the Director FSL for examination, he submitted his report that the thumb impression of the complainant on the Transfer Application is that of the complainant. But further reported that the signatures on the Hundi allegedly executed by Bashir Ahmed- husband of the complainant set up by the appellant does not tally with the admitted signatures of the husband of the complainant sent to FSL. The Police Station City, Jammu produced the challan against the appellant under Sections 420 and 467 RPC, for which the appellant was charged of having cheated the complainant by committing forgery.
4. It is further stated that during the trial, neither the complainant nor her husband has alleged that the accused/appellant has fraudulently induced the complainant to deposit Rs. 4.00 lacs with the company of the appellant with a criminal intention to deprive the complainant of her money. Rather the evidence produced by the prosecution and as admitted by the complainant and her husband that the complainant was receiving regularly amount from appellant's company from time to time and had withdrawn Rs. 83,000/- on different occasions. Had there been a criminal intention to cheat, the appellant would not have paid Rs. 83,000/- to the complainant on different occasions. The prosecution has miserably failed Cr. Appeal No.48/2012 Page 2 of 11 3 to prove that at the time complainant deposited Rs. 4.00 lacs with the finance company of the appellant, the appellant induced the complainant to part with the money with an intention not to pay the same, which is the sine qua non for the offence of cheating.
5. It is settled law that mere receipt of money will not be cheating unless it is shown that it was received with pre-conceived intention of denying it later on and if intention is changed subsequently, it would not be a cheating as repeatedly held by our own High Court in 12 JKLR 32, AIR 1952 (J&K) 26 and AIR 1953 (J&K) 22. Even the Apex Court has held that mensrea on the part of the accused is must to establish to make out the case of cheating as held in 2003 JKJ (1) SC.
6. In the present case, the complainant was regularly withdrawing the amount from the company of the appellant for quite long time after the initial deposit and has withdrawn Rs. 83,000/- till she filed an application for transfer of the amount in the loan account of her husband. Though she denied of filing of the application, yet by the evidence of the prosecution, it is proved that the application contained the thumb impression of the complainant. In this background, the prosecution has failed to make out the offence under Section 420 RPC, but the Trial Court did not consider the legal position and the ingredients required to be proved by the prosecution to make out the offence under Section 420 RPC and the judgment is result of non-application of mind.
7. The prosecution has seized the record of the appellant and the books of accounts regularly maintained by the company of the appellant in the regular course of business, which contained entries that the husband of the complainant has borrowed Rs. 3,50,000/- on different occasions from the appellant's company and has executed a promissory note for Rs. 3,50,000/- in favour of the company of the appellant. The fraud played by the prosecution to prove the forgery is that Investigating Cr. Appeal No.48/2012 Page 3 of 11 4 Officer had produced a fake person of the age of 30 to 35 years, alleging him as Bashir Ahmed-the alleged husband of the complainant before the Tehsildar and got his signatures, which were sent to FSL for comparison with the signatures of the Bashir Ahmed-husband of the complainant, who was about 67 years old at that time. This fact is proved by the statement of Tehsildar Magistrate-Ojal Singh, who has deposed in the cross examination that he personally does not know Bashir Ahmed, but his age was about 30 to 35 years and he has not seen Bashir Ahmed on the date when he was examined. The story of forgery of the promissory note also stood demolished by the PW-Incharge Director FSL, J&K, Jammu, namely, Dr. R.L. Dhar, who in his cross examination has stated as under:-
" I did photograph the question and specimen signatures and there enlargement were also taken. Those enlargements and specimen were compared with the question writings. The photographs and negatives were not sent to Investigating Agency. The signatures shown to me today in the Court on the statement of PW-Bashir Ahmed recorded on 02.08.2004 by the Court are similar, as affixed on the Hundi Exhibit-3. Similar, means the writer of both the signatures are of the same hand. The signatures affixed on the statement of PW-Bashir Ahmed recorded on 02.08.2004 is marked as Exhibit-RL/1 and RL/2"
8. From the statement of the Tehsildar, namely, Ojal Singh and PW-Incharge Director FSL, J&K, Jammu, namely, Dr. R.L. Dhar, it is proved beyond any shadow of doubt that the prosecution has obtained signatures of some stranger and got it compared with the signatures of Bashir Ahmed on Hundi to make out a false case of forgery against the appellant. Rather, it is the Investigating Agency, which has committed the fraud, but the Trial Court has failed to take into consideration this aspect of the case. The judgment is based on non-application of mind and misreading of evidence. It was proved from the evidence of the Cr. Appeal No.48/2012 Page 4 of 11 5 prosecution that the application for transfer of the amount by the complainant to the loan account of her husband and borrowing of Rs. 3,50,000/- by the husband of the complainant from the company of the appellant and the failure of the prosecution to prove the admitted signature of the Bashir Ahmed allegedly sent for comparison to FSL and the statement of Dr. R.L. Dhar that the signatures on the Hundi and statement of Bashir Ahmed recorded in the Court are of the same person has clearly established that the appellant has given a plausible defence. The accused is not required to prove his innocence beyond any shadow of doubt, but is required to give plausible explanation. Once it is proved that Bashir Ahmed-husband of the complainant has borrowed Rs. 3.50 lacs from the company of the appellant, as depicted in the books of the accounts of the company of the appellant regularly maintained in ordinary course of business and the Hundi contains signatures of the husband of the complainant and the application for transfer of the amount in the account of her husband demolish the prosecution story. There was no reason for the Trial Court to convict the appellant either under Section 420 RPC or 467 RPC.
9. The Trial Court has failed to take into consideration that the complainant had filed a suit for recovery of the amount against the company of the appellant, which was later on dismissed in default for non-prosecution. It was a pure civil transaction and in such circumstances, where two views are possible, the view favorable to the accused should have been taken by the Trial Court and acquitted the appellant.
10. The judgment of the Trial Court is perverse and is bad on misreading of the evidence and non-consideration of legal ingredients required to be proved by the prosecution to bring home the offence under Sections 420 and 467 RPC against the appellant and the sentence awarded by the Trial Court upon the appellant is excessive and in-flagrant disregard to the Cr. Appeal No.48/2012 Page 5 of 11 6 provisions of Sections 273 and 276 Cr.P.C. Bare perusal of judgment of conviction, it is evident that Court below has held that discrepancies and contradiction brought to knowledge of Court are not material; that specimen signature of PW Bashir Ahmed on Hundi did not tally with the question signature, so forgery has been proved.
11. I have given my thoughtful consideration to whole aspects of the matter.
12. In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offence charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the established of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral certainty, every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit the accused, because it is better that several guilty person should escape than that one innocent person suffer. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. The weakness in defense established by the accused persons is no help to prosecution, because the prosecution has to prove its case beyond all shadow of doubt. Mere creation of suspicion is not enough. There is inevitably long distance to travel between 'may be true' and 'must be true'. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
Cr. Appeal No.48/2012 Page 6 of 11 713. More the heinous offence stricter proofs are required. There is required higher degree of proofs in criminal cases, especially where severe punishment is provided. Accused has been charge sheeted under section 420/467RPC for cheating and forgery of valuable document Hundi. Forgery is defined under Section 463 RPC. It reads:
"463. Forgery.
Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Making of false document is defined in Section 464 of RPC. It reads:
"Sec.464. Making a false document.
[A person is said to make a false document or false electronic record-
First- who dishonestly or fraudulently-
(a) makes, signs seals or executes a document or a part of a document;
(b) makes or transmits any electronic record or a part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution a document or the authenticity of the digital signature; with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signal, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Cr. Appeal No.48/2012 Page 7 of 11 8 Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on an electronic record, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration]."
14. As per sections 463/464 RPC, the person who is charged with offence of forgery has to make sign, seal and to execute a document, which he knows that it is false. To attract sections 467 there has to be alteration of document dishonestly and fraudulently. Dishonestly means doing any act in order to cause wrongful gain to one person or wrongful loss to another; fraudulently means act done with intent to defraud. There cannot be direct evidence with regard to conspiracy; it can be inferred from the evidence produced during trial and other attending circumstances of case..
15. In present case, prosecution has cited as many as list of 10 witnesses, but examined 5 witnesses. Rest of prosecution witnesses have not been produced.
16. The story of prosecution in brief is that a D.O letter from Finance Minister was sent to SSP for dealing under law. In letter it has been stated that on 17.3.1997, in public meeting, Mst. Sheran Bibi D/O Mamu reported that she had deposited an amount of Rs. 4 lakh with M/S Prabhat Finance Co., Kanak Mandi, Jammu; that she has withdrawn Rs. 83000/- only from time to time; that an amount of 3.17 lac is still left with company, which later on has refused to own and release; that vide office no. PS/FM/97 dated 28.2.1997 the company was asked for factual report which has so far not been furnished, so police action as per law appears to be the only course left. SSP Jammu sent letter to Dy.S.P North; it appears from documents in challan that on 18.3.1997 statement of PW Bashir Ahmed and on 20.3.1997 statement of PW Sheran Bibi was recorded Cr. Appeal No.48/2012 Page 8 of 11 9 initially. It further appears that on 20.3.1997 Dy. SP North directed SI P/S City to deal U/L and report. The police started the investigation; the statement of accused Bodh Raj Gupta was recorded on 18.4.1997; Original Hundi allegedly forged was seized on 19.4.1997. Specimens Signature of PW Bashir Ahmed was obtained on 25.4.1997 in presence of EMIC and sent to FSL Jammu along with Hundi on 26.4.1997 and report was obtained by Police. Police also seized one copy of loan book on 28.3.1997 one deposit register from accused.
17. Learned Counsel for appellant beside taking grounds taken in memo of appeal has strongly argued that FIR no. 161/1997 u/s 420/467 RPC in the present case has been registered on 4.6.1997 after completing the investigation. But all the documents prepared as mentioned above are prior to lodging of FIR.
18. From the perusal of challan, admittedly the seizure memo and other part of investigation have been conducted before lodgment of FIR on 4.6.1997 and as such, question of mentioning of FIR no. 161/1997 and offences u/s 420/465/467/ on the documents annexed in challan do not arise. But all the documents bear FIR no. and offences. All the documents annexed with challan except FIR, so in the contextual facts, the indication of case number in the seizure list and other documents, has resulted manipulation on the documents under necessary provision of law. On this sole ground the case of prosecution fails.
19. Further in present case, no specimen signatures of accused have been taken and sent to FSL along-with alleged forged Hundi. Unless the specimens writing of accused tally with the writing on alleged forged document, no case of forgery of document can be made out against the accused. PW expert R.L. Dhar has further stated in cross examination that the signature shown to him on the statement of PW Bashir Ahmed Cr. Appeal No.48/2012 Page 9 of 11 10 recorded on 2.8.2004 by the court are similar as affixed on Hundi PW Ujjal Singh, Tehsildar, in whose presence specimens signature of PW Bashir Ahmed vide EXPW-US were obtained, has stated in cross examination that said Bashir Ahmed was 30/33 years old. But as per statement of PW Bashir Ahmed he has stated his age as 72 years. Before Tehsildar, said Bashir Ahmed was identified by SI Nand Lal Dhar, who has not been produced in Court due to death. So identity of Bashir Ahmed whose specimen's signatures were obtained is also disputed. If the statement of PW R.L. Dhar expert is to be believed then no case is made out against accused as alleged by prosecution, because he has stated that signature on the statement of PW Bashir Ahmed recorded on 2.8.2004 by the Court are similar as affixed on Hundi (alleged forged document).
20. The investigation has been, thus, conducted in most unmindful manner.
The cardinal principles have not been followed. It is a case of false implication at the behest of political pressure.
21. The Courts while appreciating the evidence in criminal cases have to see the decree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there come slightest doubt regarding the involvement of accused then Court should not go on convicting the accused.
22. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities .Every case has its own facts. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. All the material documents in challan have to be proved beyond reasonable doubts, otherwise these are only pieces of papers; all the oral facts relevant to matter in issue have Cr. Appeal No.48/2012 Page 10 of 11 11 also to be produced like other evidence, otherwise Court cannot come to conclusion about guilt of accused.
23. Keeping in view whole circumstances of the case, I think that prosecution has not proved its case beyond reasonable doubts against the accused person/appellant. Challan is dismissed accordingly. Appeal is allowed, judgment and sentence passed by Court below are set-aside. Accused/appellant is discharged from his bail bonds. File of court below be sent back along with copy of this judgment.
(Sanjay Kumar Gupta) Judge Jammu, 14.09.2017 Ram Krishan Cr. Appeal No.48/2012 Page 11 of 11