Delhi District Court
Anil Kumar Upadhyay vs The State on 23 January, 2016
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0190122015
Criminal Appeal Number : 26/1/15 dated 29.09.2015
FIR No. : 88/1999
PS: : Connaught Place
U/S: : 420/471 IPC & u/s 420/471
r/w Section 511 IPC
Anil Kumar Upadhyay
S/o Sh Mangal Upadhyay
R/o Subhash Nagar, PO Belbag,
PS Bettiah, Distt. West Champaran (Bihar). .....Appellant
versus
The State
.....Respondent
Appeal received by Court : 29.09.2015
Arguments concluded on : 23.01.2016
Date of judgment : 23.01.2016
JUDGMENT
1 By way of present appeal, the appellant herein has challenged the judgment of conviction dated 09.02.2012 passed by Ms Jasjeet Kaur, Ld. MM, PHC, New Delhi whereby the appellant/accused was convicted CA No. 26/1/15 FIR No. 88/1999 PS Connaught Place Anil Kumar Upadhyay Vs State Page No. 1/7 for the offence punishable under sections 420/471 IPC, 420/511 IPC and 471/511 IPC and the consequent order on sentence dated 09.09.2015 whereby the appellant was sentenced to undergo RI for a period of two years with a fine of Rs.4,000/- for the commission of offence punishable under section 420 IPC, RI for a period of two years with a fine of Rs 4000/- for the commission of offence punishable u/s 471 IPC, RI for a period of one year with a fine of Rs 1000/- for the commission of offence punishable u/s 471/511 IPC and RI for a period of one year with a fine of Rs 1000/- for the commission of offence punishable u/s 420/511 IPC with directions that the said punishments would run concurrently. It was also mentioned in the order on sentence that the fine amount of Rs 10,000/- has already been paid vide order dated 06.06.2013. The benefit of Section 428 CrPC was also given to the convict as per rules.
2 The appellant/convict/accused was facing trial on the allegations of the prosecution that in between 25.01.1999 to 04.02.1999 at ICICI Banking Corporation Ltd, New Delhi branch Connaught Place within the jurisdiction of PS Connaught Place, he presented a forged requisition slip for issuance of cheque book series number 616800 to 616900 in the name of M/s U.E.M. India Pvt Ltd and further he also presented the cheques number 358953 (for Rs 50,000/-), 358960 (for Rs 1 lakh), 358964 (for Rs 50,000/-) and 358969 (For Rs 1 lakh) of Havell's India Ltd and also presented forged cheques in the name of M/s U.E.M. India Pvt Ltd on 28.01.1999 for Rs 1,00,000/-, on 29.01.1999 for Rs 3,00,000/-, on 30.01.1999 for Rs 4,00,000/-, on 01.02.1999 for Rs CA No. 26/1/15 FIR No. 88/1999 PS Connaught Place Anil Kumar Upadhyay Vs State Page No. 2/7 5, 00,000/-, on 02.02.1999 for Rs 5,00,000/- and again on 03.02.1999 for Rs 5,00,000/- and he thus fraudulently or dishonestly used as genuine the said cheques and the requisition slip which he knew or had reasons to believe to be forged documents and thereby committed an offence punishable u/s 471 IPC.
The convict/appellant is further facing trial on the allegations of the prosecution that on the aforesaid date, time and place and by presenting the said forged cheques and requisition slip he got issued a cheque book on 28.01.1999 in the name of M/s U.E. M. India Pvt Ltd and also withdrew the cash as mentioned above from the account of M/s UEM India Pvt Ltd. and Havell's India Ltd and thereby cheated ICICI Banking Corporation Ltd., Havell's India Ltd and M/s UEM India Pvt Ltd by dishonestly inducing the said bank to withdraw the money from the account of these firms and to deliver it to him and thereby committed an offence punishable u/s 420 IPC.
3 The charge sheet u/s 420/467/468/471 IPC against the accused/appellant was filed before the court of Ld. MM and the Charge against the accused /appellant was framed by the Ld. Trial court u/s 420/471 IPC on 26.05.2000 to which he pleaded not guilty and claimed trial.
4 The prosecution in support of its case, examined total nine witnesses. Ct Lal Singh was examined as PW1, Sh Ashok Kumar was examined as PW2, Sh R Raghunathan was examined as PW3, Sh B J S Kahlon was examined as PW4, Sh S R Arora was examined as PW5, Ct Ajay Kumar was examined as PW6, Dr Shyam Gopal was examined CA No. 26/1/15 FIR No. 88/1999 PS Connaught Place Anil Kumar Upadhyay Vs State Page No. 3/7 as PW7, SI Vijay Kumar was examined as PW8 and Sh Jaswant Singh was examined as PW9.
5 The statement of accused u/s 313 CrPC was recorded on 17.07.2010, wherein, the accused/appellant preferred to lead defence evidence, however, as per record, did not lead any defence evidence in support of his defence.
6 Vide impugned judgment dated 09.02.2012, the accused/appellant was convicted for the offences punishable u/s 420/471 IPC and also under section 420/511 IPC and Section 471/511 IPC, thereafter, vide impugned order on sentence dated 09.09.2015 was sentenced accordingly under the above said sections.
7 I have heard the arguments and perused the record including trial court record.
8 It is pertinent to note that during arguments on appeal, the appellant stated that he did not challenge the legality and validity of judgment dated 09.02.2012 qua his conviction u/s 420/471 IPC, section 420/511 IPC and section 471/511 IPC. The appellant further stated that by way of the present appeal, he was only assailing the extent and legality of order on sentence dated 09.09.2015 qua the above said offences and prayed for a lenient view submitting that he had remained in custody in this case for about 16 months i.e. from 06.02.1991 till 02.06.2000 and thereafter from 09.07.2013 till 13.07.2013. He also stated that he was the sole bread earner of his family consisting of his senior citizen parents, wife and two minor children aged about 12 years and nine years. He further stated that he has clean antecedents and he CA No. 26/1/15 FIR No. 88/1999 PS Connaught Place Anil Kumar Upadhyay Vs State Page No. 4/7 would be very careful in future. The separate statement of appellant/accused was also recorded in that regard on 23.01.2016. 9 As far as Section 420/471 IPC, Section 420/511 IPC and Section 471/511 IPC are concerned, the appellant has stated vide his separate recorded statement dated 23.01.2016 that he was not challenging the legality and validity of judgment dated 09.02.2012 qua his conviction under the above said provisions and that by way of present appeal, now he was only assailing the extent and legality of order on sentence dated 09.09.2015 qua the said offences. It would thus show that the appellant has not challenged his conviction under the said sections of IPC vide judgment dated 09.02.2012 and is only challenging the extent and legality of order on sentence dated 09.09.2015 qua the above said offences. In these circumstances, the conviction of appellant/convict u/s 420/471 IPC, Section 420/511 IPC and Section 471/511 IPC vide judgment dated 09.02.2012 is confirmed and upheld. 10 The Ld. Counsel for the appellant/convict has argued that appellant has already remained in custody in this case for about 16 months (Nominal Role qua the appellant from Deputy Superintendent, Central jail no. 3, Tihar, New Delhi is on record), he is the sole bread earner of his family consisting of his senior citizen parents, wife and two minor children aged about 12 years and nine years. He has also argued that the appellant / convict has clean antecedents and he would be very careful in future. He has thus prayed for a lenient view against the appellant.
11 The Ld. Addl. PP for the State has submitted that keeping in view CA No. 26/1/15 FIR No. 88/1999 PS Connaught Place Anil Kumar Upadhyay Vs State Page No. 5/7 the facts and circumstances of the case and the manner of cheating, no leniency should be shown to the appellant/convict. 12 I am not inclined to release the convict / appellant on probation of good conduct in view of the facts and circumstances of the case and also the modus operandi of cheating adopted by the appellant/convict. The appellant has, however, faced trial in this case since the year 1999 and as submitted above has already remained in custody in this case for about 16 months i.e. from 06.02.1999 till 02.06.2000 and thereafter from 09.07.2013 till 13.07.2013. The appellant is also stated to be sole bread earner of his family consisting of senior citizen parents, wife and two minor children aged about 12 years and 09 years and is also stated to have clean antecedents. In facts, the appellant/convicts deserves a lenient view while being sentenced under section 420/471 IPC, Section 420/511 IPC and Section 471/511 IPC. The interest of justice would be served, if the appellant/convict is sentenced to the period already undergone by him in this case (from 06.02.1999 till 02.06.2000 and thereafter from 09.07.2013 till 13.07.2013) as substantial sentence, however, the fine amount as imposed by the Ld. Trial court vide order on sentence dated 09.09.2015 u/s 420 IPC is enhanced from Rs 4000/- to Rs 9000/-, the fine amount as imposed by the Ld. Trial court vide order on sentence dated 09.09.2015 u/s 471 IPC is enhanced from Rs 4000/- to Rs 9000/-, the fine amount as imposed by the Ld. Trial court vide order on sentence dated 09.09.2015 u/s 420/511 IPC is enhanced from Rs 1000/- to Rs 3500/- and the fine amount as imposed by the Ld. Trial court vide order on sentence dated 09.09.2015 u/s 471/511 IPC is CA No. 26/1/15 FIR No. 88/1999 PS Connaught Place Anil Kumar Upadhyay Vs State Page No. 6/7 enhanced from Rs 1000/- to Rs 3500/-. The appellant/convict is sentenced accordingly. The impugned order on sentence dated 09.09.2015 is modified accordingly. It has already been mentioned in the impugned order on sentence that the accused/appellant has already paid the fine of Rs 10,000/- vide order dated 06.06.2013. The enhanced amount of fine to the extent of Rs 15000/- has been deposited today by the convict/appellant vide separate receipt no. 397444 dated 23.01.2016.
13 The present appeal is disposed of with the above said directions. 14 TCR be sent back with copy of the judgment.
15 Appeal file be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 23.01.2016 ( Amit Bansal )
Addl. Sessions Judge -04,
New Delhi District, Patiala House
Courts, New Delhi/23.01.2016
CA No. 26/1/15 FIR No. 88/1999 PS Connaught Place Anil Kumar Upadhyay Vs State Page No. 7/7