Delhi District Court
Dambar Singh vs State on 7 June, 2024
DLST010044752020
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL No. 103/2020 (RBT 81/2022)
IN THE MATTER OF:
Dambar Singh,
S/o Late Sh. Khushi Ram
R/o House No. A/43, G. No.12/3,
Sindhu Farm Road,
Meethapur Extension, Badarpur,
New Delhi-110044.
.......Appellant
Versus
The State
........Respondent
Instituted on : 15.07.2020
Reserved on : 19.04.2024
Pronounced on : 07.06.2024
JUDGMENT
1. Vide this judgment, I shall dispose of Criminal Appeal U/s 374(3) Cr.P.C preferred on behalf of appellant Dambar Singh against the impugned judgment dated 22.02.2020 and Order on Sentence dated 29.02.2020 CA No. 103/2020 Dambar Singh Vs. State Page No. 1 / 32 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2024.06.07 17:59:23 +0530 passed by Ld. MM-04, South, Saket in case no. 2034723/2016 titled as "State Vs. Dambar Singh" pertaining to FIR No. 62/2006, PS Sangam Vihar whereby the appellant herein was convicted for the offences U/s 409/477A IPC and was sentenced accordingly.
2. Briefly stated the facts as per record are as under:-
An FIR No. 62/2006 u/s 420 IPC was lodged at PS Sangam Vihar on 23.01.2006 on the basis of written complaint of Sh.S.P Singh (ASP, 1 st Sub-
Division, Department of Posts, New Delhi) dated 20.01.2006 regarding misappropriation of government money to the tune of Rs. 2,49,000/- by the appellant. As per said complaint, appellant was working as SPM (Sub Post Master) in Talimabad Post Office, New Delhi and he had misappropriated the money from saving bank accounts of several account holders/depositors namely Sh. Radhey Shyam Gupta, Ms. Jyoti Verma, Ms. Shabra + Umar Mohd., Ms. Nafisa, Ms. Sadhana Gupta, Sh. Sonu, Sh. Anil Prasad and Smt. Durgawati. It was alleged that appellant had fraudulently withdrawn amount to the tune of Rs.2,49,000/- from the accounts of aforementioned account holders. It was also alleged that he had pocketed the amount instead of crediting in the concerned accounts. It was further alleged that he had issued a fake passbook for account no.4000866 and pocketed the entire amount. It was also alleged that departmental investigations were going on. Appellant was stated to be absconding since 04.01.2006. While the investigation was being carried out in the said FIR another complaint dated 31.03/03.04.2006 was received from one Mr. Ramesh Chand (ASPO, 1 st Sub Division, New Delhi South Division) against Mr. Ved Prakash. It was alleged that he was posted as Packer (Group D) at Talimabad Post Office CA No. 103/2020 Dambar Singh Vs. State Page No. 2 / 32 Digitally signed by SUNIL SUNIL GUPTA Date:
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and had misappropriated money from accounts of account holders, namely, Sh. Alakh Dev Sharma, Sh. Mohan, Sh. Tulsi, Smt. Durgawati, Sh. Sunder and Smt. Anita Walia in connviance with appellant Dambar Singh. Request was made to register an FIR against him. As the allegations were similar to those pertaining to appellant and he was also posted at the same post office at the relevant time, so another FIR was not registered and investigation qua him was also taken up in the earlier FIR no. 62/2006, PS Sangam Vihar itself. After completion of investigation, both the accused persons were charge-sheeted for the offence U/s 420/34 IPC. After receiving the charge- sheet, further investigation u/s 173(8) Cr.P.C. was directed to be conducted vide order dated 31.08.2007 of Ld. Magistrate which was taken up by DIU, South District and final report in the form of supplementary charge-sheet for the offences U/s 420/409/468/471/120B/34/500 IPC was filed against them on 15.04.2008.
3. After considering the material on record, charge for the offences U/s 409/477A/34 IPC was framed against them on 03.09.2008 to which they pleaded not guilty and claimed trial. During the course of trial, accused Ved Prakash left this world and proceedings against him were abated vide order dated 15.12.2011. Prosecution has examined following 17 witnesses in support of its case:-
S.N Name of Witness Documents proved Role o Carbon copy of FIR as Ex. PW-1/A (OSR) and
1. PW-1 ASI Om Prakash Duty Officer endorsement on rukka as Ex.PW1/B. CA No. 103/2020 Dambar Singh Vs. State Page No. 3 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 17:59:39 +0530
2. PW-2 Sh. S.P Singh Complaint as Ex. PW2/A Complainant
3. PW-3 Smt. Shabra Pass book bearing no.
Begum 4000459 as Ex. PW3/A
(She was examined (3 pages), withdrawal
twice i.e., on 27.04.2015 forms as Ex. PW3/B to and thereafter on Ex. PW3/D, documents Victim 07.12.2019 on recall u/s containing her sample 311 Cr.P.C.) signatures taken by police as Ex. PW3/E and Ex. PW3/F Her complaint as Ex.
4. PW-4 Smt. Sunita Devi PW4/A, copy of her Victim passbook as Mark-A Her complaint as
5. PW-5 Smt. Satto Devi Ex.PW5/A and copy of Victim her passbook as Mark-A
6. PW-6 Smt. Anita Walia Nil Victim Her complaint as Ex.
PW7/A, disowned
signatures on withdrawal
7. PW-7 Ms. Jyoti Verma Victim
forms Ex. PX1 and Ex.
PX2.
His complaint as
8. PW-8 Sh. Shiv Nandan Ex.PW8/A and copy of Victim
statement Mark A (Colly)
Arrest memo of Ved
He had arrested
Prakash as Ex. PW9/A,
absconding
his personal search
9. PW-9 HC Mukesh Singh accused Ved
memo as Ex.PW9/B and
Prakash with
his disclosure statement
HC Kiratpal
as Ex. PW9/C
Her complaint as Ex.
10. PW-10 Ms. Nafisa Victim
PW10/A
11. PW-11 Sh. Sonu His complaint as Ex. Victim
PW11/A and receipt of
CA No. 103/2020 Dambar Singh Vs. State Page No. 4 / 32
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.06.07
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his pass book as Mark A
Application for PC
remand of appellant as
Ex.PW12/A, arrest memo
and personal search
memo of appellant as Ex.
PW12/B & Ex. PW12/C
respectively, his
disclosure statement as
Ex. PW12/D, complaint
dated 23.05.2006 on st
PW-12 Retired SI Kalu 1 Investigating
12. behalf of postal
Ram Officer
department against Ved
Prakash as Ex. PW12/E,
arrest memo and personal
search memo of accused
Ved Parkash as
Ex.PW12/F and
Ex.PW12/G respectively,
disclosure statement of
accused Ved Prakash as
Ex.PW12/H
Nil He had
accompanied
13. PW-13 ASI Ugrasen
Investigating
Officer
Seizure memo of
documents from office of
Post as Ex.PW14/A,
letter regarding collection
of withdrawal forms 2nd
14. PW-14 Retired SI Balbir from department of Post Investigating
as Ex. PW14/B and Officer
application for getting
the expert opinion by
sending signatures/ initial
to FSL as Ex.PW 14/C
15. PW-15 Retd. Inspector Inquiry report against the 3rd Investigating
CA No. 103/2020 Dambar Singh Vs. State Page No. 5 / 32
Digitally signed
by SUNIL
SUNIL GUPTA
Date:
GUPTA 2024.06.07
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appellant fetched from
Department of Post and
Ishwar Singh Officer
Telegraph as Ex.PW15/A
(running into 80 pages)
16. PW-16 Sh. Umar Mohd. Nil Victim
Copy of passbook as
Mark P-17/A (running
into 3 pages), withdrawal
PW-17 Sh. Radhey
form bearing his
Shyam Gupta
signatures at point A and
(He was examined twice
17. B as Ex. Victim
i.e., on 06.12.2017 and
PW-17/A,documents
thereafter on 07.12.2019
containing his sample
on recall u/s 311 Cr.P.C.)
signatures taken by
police as Ex. PW17/B
and Ex. PW17/C
4. After completion of prosecution evidence, statement of the appellant U/s 313 Cr.P.C. was recorded on 06.12.2017 wherein he stated that he had not committed any offence as alleged and that entries in the passbooks of the depositors as well as in the ledger were made by co- accused Ved Prakash. He also stated that he was not having knowledge about false entries made by accused Ved Prakash. He chose not to examine any witness in his defence despite opportunity.
5. Thereafter, considering the material on record and submissions from both the sides, Ld. Trial Court vide judgment dated 12.12.2017 acquitted the appellant after holding that prosecution had failed to prove its case beyond reasonable doubt.
6. In appeal against said judgment filed before Ld. Sessions Court by CA No. 103/2020 Dambar Singh Vs. State Page No. 6 / 32 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.06.07 18:00:04 +0530 Union of India (Department of Posts through Sr. Superintendent of Post Offices, South Division, New Delhi-19), same was set aside and matter was remanded back to Ld. Trial Court for fresh decision after recalling required witnesses to prove the documents already on record. After doing the needful in terms of said directions by re-examining PW-3 Smt. Shabra Begum, PW-17 Sh. Radhey Shyam Gupta and by exhibiting the FSL report u/s 293 Cr.P.C. alongwith certain documents part of inquiry report earlier Ex.PW15/A by compairing the same with originals thereof, additional statement u/s 313 Cr.P.C. of the appellant was recorded on 07.01.2020 wherein he again stated that he was innocent. He also stated that he was falsely implicated in the present case.
7. Ld. Magistrate again heard the arguments from both the sides and after considering the same alongwith material on record, convicted the appellant herein for the offences u/s 409/477A IPC vide judgment dated 22.02.2020. Vide order on sentence dated 29.02.2020, he was sentenced as under:-
(i) For the offence U/s 409 IPC, he was sentenced to undergo simple imprisonment for a period of three years alongwith fine of Rs. 10,000/-(in default, he was directed to undergo simple imprisonment for one month);
(ii) For the offence U/s 477A IPC, he was sentenced to undergo simple imprisonment for a period of three years alongwith fine of Rs. 10,000/- (in default, he was directed to undergo simple imprisonment for one month).
Total fine amount of Rs.20,000/- was directed to be paid as compensation u/s 357 (1) Cr.P.C. to Department of Posts.
CA No. 103/2020 Dambar Singh Vs. State Page No. 7 / 32 Digitally signedSUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 18:00:11 +0530
8. Said Judgment alongwith Order on Sentence is being challenged in these proceedings.
9. Arguments heard.
10. It has been argued by Ld. Defence Counsel that Ld. Trial Court committed an error in convicting the appellant as material on record was not properly appreciated. It has been submitted the vide impugned judgment, appellant herein was convicted for the offence U/s 409 IPC as well as 477A IPC without there being sufficient material on record to substantiate the allegations pertaining thereto. It has been submitted that the offence U/s 477A IPC was clearly not made out against the appellant by any stretch of imagination as said offence pertains to falsification of accounts and there is no evidence led by prosecution to the effect that appellant had falsified the accounts. It has been submitted that as far as conviction for the offence U/s 409 IPC is concerned, there is no primary evidence against the appellant and he has been convicted only on the basis of secondary evidence. It has been submitted that PW-2 did not produce any original document to substantiate the case against the appellant. It has been submitted that there is no proof to the effect that appellant had falsified the accounts as no FSL report indicates towards him. It has been submitted that PW-14 stated before the Court that he had not sent original vochures of the post office alongwith specimen signatures of appellant for comparison to FSL. It has been submitted that PW-3 and PW-17 were re-
examined after judgment dated 15.01.2019 of Ld. ASJ in appeal preferred by Union of India however, they still did not support the case of CA No. 103/2020 Dambar Singh Vs. State Page No. 8 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 18:00:20 +0530 prosecution. It has been submitted that Ld. Trial Court has convicted the appellant by applying Section 106 Evidence Act thereby placing burden of proof on him which is contrary to the established Principles of Criminal Jurisprudence. It has been submitted that initial burden of the prosecution to prove the case beyond reasonable doubt can never be shifted and that by holding otherwise, Ld. Trial Court has apparently committed a serious error. It has been submitted that the case of prosecution is full of doubts and benefit thereof should have been granted to the appellant as was done by Ld. Magistrate in the earlier judgment dated 12.12.2017 which was subsequently set-aside by Ld. ASJ. Prayer has been made to set aside the impugned and to acquit the appellant.
11. Per contra, it has been submitted by Ld. Addl. PP for State that there was no illegality in the impugned judgment and that prosecution has proved its case beyond reasonable doubt. He has prayed for dismissal of appeal.
12. I have considered the submissions from both the sides alongwith record.
13. As mentioned earlier, appellant has been convicted for the offences u/s 409/477A IPC.
14. Section 409 IPC provides as under:-
409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any CA No. 103/2020 Dambar Singh Vs. State Page No. 9 / 32 Digitally signed by SUNIL SUNIL GUPTA Date:
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dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
15. Offence of Criminal Breach of Trust has been defined u/s 405 IPC as under:-
405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
16. Section 477A IPC provides as under:-
477A.Falsification of accounts.- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any [book electronic record, paper, writing], valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the CA No. 103/2020 Dambar Singh Vs. State Page No. 10 / 32 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2024.06.07 18:00:36 +0530 omission or alteration of any material particular from or in, any such [book, electronic record, paper, writing], valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
17. Hon'ble Apex Court in N. Raghvender Vs. State of Andhra Pradesh, CBI, Crl. Appeal No. 5/2010 has held that following are the ingredients of offence U/s 409 IPC:-
(i) The accused must be a public servant or a banker, merchant or agent;
(ii) He/she must have been entrusted in such capacity, with property;
(iii) He/she must have committed breach of trust in respect of such property.
18. Similarly, in the aforementioned judgment, Hon'ble Apex Court laid down following ingredients of offence under Section 477A IPC:-
(i) That the accused destroyed, altered, mutilated or falsified the books, electronic records, papers, writing, valuable security or account in question;
(ii) The accused did so in his capacity as a clerk, officer or servant of the employer;
(iii) The books, papers etc. belong to or are in possession of his employer or had been received by him for or on behalf of his employer;
(iv) The accused did it willfully and with intent to defraud.CA No. 103/2020 Dambar Singh Vs. State Page No. 11 / 32
Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2024.06.07 18:00:43 +0530
19. Now material on record will be examined to see as to whether the prosecution has successfully proved the aforementioned ingredients against the appellant herein.
20. The case of prosecution against the appellant as per charged framed by Ld. Magistrate on 03.09.2008 is that he alongwith Sh. Ved Prakash in furtherance of their common intention had misappropriated the Govt. money to the tune of Rs. 2,49,000/- or more after committing criminal breach of trust and had also defrauded the investors by making false entries.
21. To prove the case of prosecution, 17 witnesses in all were examined. PW-2 Sh. S.P. Singh is the complainant. He deposed before the Court that the appellant was working as Sub Post Master in Talimabad Post Office, New Delhi and was in-charge of said sub post office. He stated that the nature of duties assigned to him were to look after the accounts of all account holders, to receive money, to make entries in the various passbooks and also to issue the new passbook etc. to various customers. He further stated that on inquiry after complaints of various account holders against him, the department came to know that he had received money from various account holders and made entries in their passbooks however same amount was not so deposited in the Govt treasury/post office rather same was misappropriated by him for his own purpose. He also stated that it further came to the knowledge of department that appellant had issued a fake passbook in respect of account no. 4000866 to its holder. He also CA No. 103/2020 Dambar Singh Vs. State Page No. 12 / 32 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.06.07 18:00:50 +0530 stated that when these facts came to the knowledge of department, appellant was tried to be contacted however he was found absconding since 04.01.2006 whereupon a complaint was made by him on the basis of which present FIR was registered. In his cross examination there is no suggestion to the effect that the appellant was not working as Sub Post Master in Talimabad Post office or that the nature of his duties as stated by PW-1 was not correct. He was questioned about role of accused Ved Prakash whereupon he stated that he had asked Ved Prakash for misappropriated amount in the passbooks/ SB withdrawal form whereupon he told him that handwriting of appellant was in the passbook. He was given a suggestion that appellant was falsely implicated in this case because he had refused to give him bribe. He was also given a suggestion to the effect that he had not conducted proper inquiry just for saving accused Ved Prakash and that accused Ved Prakash was saved by him after taking bribe. All these suggestions were denied by him. So, it can be safely said that the fact regarding the appellant being a public servant at the relevant time and being in-charge of Sub Post Office, Talimabad was having duty to look after the accounts of all account holders and to perform all the functions pertaining thereto stands proved.
22. Regarding entrustment of amount to the appellant and subsequent misappropriation by him, several public persons who were having their accounts with Talimabad Post Office were examined. PW-3 Smt. Shabra Begum was one of such account holders who stated that she had opened an account no. 4000459 at said post office with her husband namely Umar Mohd. She further stated that she had deposited a sum of Rs. 61,000/- in CA No. 103/2020 Dambar Singh Vs. State Page No. 13 / 32 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.06.07 18:01:00 +0530 three tranches of Rs. 30,000/-, Rs.30,000/- and Rs. 1,000/- respectively and when she went to withdraw Rs. 2,000/-, she found that a sum of Rs. 4,000/- only was remaining in her account. She stated that her money was withdrawn by some other person. She proved endorsed copy of her passbook as Ex. PW3/A (running into three pages). In her cross examination she stated that no inquiry was made by police from her and her statement was also not recorded. She also stated that her money was repaid to her by post office officials. She was recalled for re-examination U/s 311 Cr.P.C. in terms of order dated 15.01.2019 of Ld. ASJ wherein she was shown the withdrawal forms (Ex.PW3/B to Ex.PW3/D) and she identified her signatures at point A and B on each form. She stated that she had given those withdrawal forms to concerned officials however she was unable to recollect as to whom she had given the same. She correctly identified the appellant stating that he used to be present in the post office however she failed to recollect if she had given those withdrawal forms to the appellant. She identified her sample signatures at Point A to A-1 on two pages and those documents were taken on record as Ex. PW3/E and Ex.PW3/F. In her further cross examination, she stated that she had received all the money which she had deposited with the post office. She also stated that she do not know as to who had withdrawn the money from the post office.
23. PW-4 Smt. Sunita Devi deposed before the court that she has deposited an amount of Rs. 26,000/- (approx) in her account at Talimabad post office and when she went to withdraw the money, she was told by post office officials that Rs. 20,000/- had been withdrawn and only Rs. 6500/- was remaining in her account. She stated that her passbook was taken by CA No. 103/2020 Dambar Singh Vs. State Page No. 14 / 32 Digitally signed by SUNIL SUNIL GUPTA Date: GUPTA 2024.06.07 18:01:13 +0530 post office officials for further inquiry and after gap of 2-3 months, the sum of Rs. 20,000/- was refunded. She stated that she was not having original passbook as same was handed over to post office officials. She proved photocopy of her passbook as Mark A and her complaint to police in this regard as Ex.PW4/A. In her cross examination, she stated that she was not remembering the name of post office official who had returned her money. She denied the suggestion that there was no embezzlement in her account at Talimabad post office or that she was deposing falsely.
24. PW-5 Smt. Satto Devi deposed before the Court that around 8-10 years ago, she had deposited Rs. 10,000/- at post office Sangam Vihar in her account but when she had gone there to withdraw her money, she found that her money had been withdrawn by someone else. She proved her complaint in this regard as Ex.PW5/A and photocopy of her passbook as Mark A. In her cross examination, she stated that she was not sure as to whether her original passbook was still with her as it was an old case. She denied the suggestion that she had not deposited any money with post office and for that reason, she was unable to produce original passbook.
25. PW-6 Anita Walia deposed before the court that she had deposited money in Talimabad post office, Sangam Vihar through one Mr. Ved Prakash, however passbook was not handed over to her on the same date of Rs. 30,000/- (it appears that witness was trying to say that she had deposited Rs. 30,000/- in her account and passbook in this regard was not handed over to her). She stated that she visited twice or thrice for her CA No. 103/2020 Dambar Singh Vs. State Page No. 15 / 32 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.06.07 18:01:21 +0530 passbook and was finally handed over the same. She stated that she was unable to recollect as to on which date, she had deposited her money and the date on which the passbook was handed over to her. She was cross examined by Ld. APP with permission of the court wherein she stated that police had made inquiry from her, however she could not recollect the facts regarding which inquiry was made. She also stated that she was unable to recollect as to whether she had deposited her money on 30.05.2005 and the passbook mentioned the date as 06.06.2005. She stated that she was unable to recollect the facts due to her old age and lapse of time. She was not cross examined by Ld. defence counsel despite opportunity.
26. PW-7 Smt. Jyoti Verma is the star witness for prosecution as she has deposed several important facts which the other witnesses were unable to state. In her deposition, she stated that she had opened an account at Talimabad Post office, Sangam Vihar with the help of appellant and had deposited Rs. 80,000/- in the said account on 01.06.2005. She stated that when she had visited the post office for withdrawal of money on 02.01.06, she found that money had been withdrawn by someone and another person was sitting on the seat of appellant who told her this fact. Appellant was not found in the post office. She proved her complaint given to police in this regard as Ex. PW7/A. She was shown her signatures on the withdrawal forms Ex.PX-1 and Ex.PX-2 at point A whereupon she stated that those signatures were not pertaining to her. In her cross examination, she stated that appellant was the post master at the time when her account was opened. She also stated that she had signed the form which was filled by her husband at the time of opening of account and her money was refunded CA No. 103/2020 Dambar Singh Vs. State Page No. 16 / 32 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.06.07 18:01:29 +0530 by post office later on. She further stated that she had seen the appellant 5-6 times in the year 2005 and that thereafter, she had not met him and was seeing him in the Court on that day. She stated that her husband had identified him as she had forgotten him and volunteered to say that her husband had accompanied her in the post office whenever she visited. She denied the suggestion that her husband had not handed over the passbook to the appellant and that nothing was deposited in the passbook alleged above.
27. PW-8 Sh. Shiv Nandan stated before the court that he was unable to recollect the time, date, month and year however, he had opened an account at Talimabad post office, Sangam Vihar, New Delhi where he had successively deposited a sum of Rs. 80,000/- approx. He stated that in the year 2006, he came to know about the embezzlement in said post office from public person who used to visit his pan shop. On inquiry, he found that money was withdrawn by someone. He proved his complaint to police in this regard as Ex.PW8/A. He stated that his money was given by post office as settled from the Jhandewalan Head office. He stated that his original passbook was lost and proved copy thereof as Mark A (Colly). In his cross-examination, he stated that after lodging his complaint, no police official had inquired from him. Ld. ASJ vide order dated 15.01.2019 had directed to again examine PW-8 Shiv Nandan to prove original withdrawal slips pertaining to him on record, however same could not be so done as he had unfortunately expired by then (report in this regard along with copy of his death certificate came on record on 04.06.2019).
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28. PW-10 Ms. Nafisa deposed before the court that in the year 2006, she had opened an account in the post office at Talimabad wherein she had deposited money on various dates and when she had approached the post office for withdrawal, she came to know that sum of Rs. 20,000/- were withdrawn from her account and an entry was also there. She was put leading question by Ld. APP after permission of Court wherein she admitted the suggestion that the entry was different on passbook and register. She was unable to say as to whether her account number was 4000817. She denied the suggestion that appellant was in-charge of post office who fled from there after the incident. She admitted that she had made a complaint to police and proved the same as Ex.PW10/A. She stated that she was not in a position to say as to whether appellant had opened her account at the post office or not. In her cross examination, she admitted the suggestion that she withdrew money from her saving account after putting her signature. She also stated that she was not remembering as to whether the appellant had deposited or withdrawn her money from her saving account. She admitted the suggestion that she was unable to recollect as to how much money was deposited in her saving account. She denied the suggestion that she was deposing falsely.
29. PW-11 Sh. Sonu deposed before the court that in the year 2006 (he was unable to provide the exact date), he had went to Post Office Talimabad, Sangam Vihar where he had an account no. 4000905 for withdrawal of money whereupon he came to know that appellant had committed fraud in his account to the tune of Rs. 25,000/- and had run away from there. He proved his complaint made to police in this regard as CA No. 103/2020 Dambar Singh Vs. State Page No. 18 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA 18:01:44 +0530 Date: 2024.06.07 Ex.PW11/A. He stated that he had given a receipt of his passbook mark as Mark A. In his cross examination, he stated that he was unable to recollect on which date, he had opened his account at post office at Talimabad. He further stated that he was having the passbook which he had not brought to the Court. He also admitted the suggestion that he had received his money from the post office.
30. PW-16 Sh. Umar Mohd deposed that he along with his wife Sabra had opened joint account no. 4000459 at Talimabad Post Office. He stated that he had opened the account through the employees i.e., post master and packer. He stated that after opening the account, passbook was handed over to him on which he had deposited the amount of Rs. 30,000/-. He further stated that in the year 2006, one employee from the post office informed him that some amount from his account was withdrawn by someone. He stated that he was called by police officials who had shown him and his wife copy of ledger bearing his signature however neither he nor his wife had withdrawn any amount from their account. He stated that he had also handed over his passbook and proved the copy thereof as Mark A. In his cross examination, he stated that he had not brought his original post office passbook. He also stated that he did not make any written complaint against the post master of post office and admitted the suggestion that he was not having any idea as to who had withdrawn money from his saving account.
31. PW-17 in his testimony before the Court stated that he had opened an account no. 4000154 at Talimabad Post office in the year 2005 and had CA No. 103/2020 Dambar Singh Vs. State Page No. 19 / 32 Digitally signed by SUNIL SUNIL GUPTA Date:
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deposited some amount in aforesaid account on various dates. He stated that he was running a shop near the post office and came to know in the year 2006 that someone had illegally withdrawn money from various account of post office. He stated that thereafter, he came to know that an amount of Rs. 4000/- was withdrawn from his account. He further stated that he had handed over passbook of his account no. 4000154 to the post office department for inquiry and proved the copy of the same as Mark P- 17/A(running into 3 pages). In his cross examination he admitted the suggestion that he cannot tell the date of opening of his aforesaid saving account in the post office. He further stated that he cannot say as to whom he had handed over his original passbook. This witness was re-examined on 07.12.2019 U/s 311 Cr.PC in terms of order dated 15.01.2019 of Ld. ASJ wherein he was shown one withdrawal form on the file and he identified his signatures thereupon at point A and B. The document was taken on record as Ex.PW17/A. He stated that he had given the same in the post office to the appellant and that he had not received any money thereafter as the appellant stated that his account was closed. He was also shown his sample signatures at point A to A-1 on two pages which were identified by him and those documents were taken on record as Ex.PW17/B and Ex.PW17/C. In his cross-examination, he stated that he was not having document regarding depositing money in post office. He admitted the suggestion that appellant had never told him that his account was closed. He stated that he was not knowing as to who had withdrawn money from his account maintained in the post office. He also admitted the suggestion that the appellant had just opened his account in the post office.
CA No. 103/2020 Dambar Singh Vs. State Page No. 20 / 32
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.06.07
18:02:00
+0530
32. Apart from these public witnesses, testimony of PW-15 retired Inspector Ishwar Singh is also material as he had proved the documents i.e. the inquiry report fetched from Department of Post and Telegraph as Ex. PW15/A (running into 80 pages). In his cross-examination, he admitted the suggestion that inquiry report from page no.7 to page no. 80 was photocopy and that the original document was already handed over to police. Some of these documents were later on properly exhibited after comparing the same with the original as Ex. PW15/A-1 to Ex.PW15/A-24 on 20.11.2019 in terms of directions of Ld. ASJ contained in judgment dated 15.01.2019.
33. Apart from aforementioned oral testimonies of the witnesses, prosecution has relied upon three FSL reports/ expert opinion on record. Two such reports are from GEQD, Shimla bearing no. CX-323/2006 dated 25.07.2006 and CX-388/2006 dated 04.12.2006. Third one is pertaining to FSL Delhi bearing no. FSL 2007/D-2039 dated 13.08.2007. Interestingly, none of these three FSL reports were exhibited/ put in evidence by prosecution in any manner whatsoever earlier and for that reason, same were not even put to the accused in his statement U/s 313 Cr.PC recorded as per procedure prescribed under Section 281 Cr.PC on 06.12.2017. It was only when the judgment of acquittal dated 12.12.2017 by Ld. Magistrate was challenged before Ld. ASJ, a direction was issued to exhibit the FSL reports. It appears that even thereafter, out of three FSL reports on record, two reports pertaining to GEQD, Shimla were exhibited as Ex.PX U/s 293 Cr.PC on 19.10.2019. There is no mention of third FSL report dated 13.08.2007 in the order sheet pertaining to that day. It is also to be noted here that on 19.10.2019, the language of order of Ld. Trial court CA No. 103/2020 Dambar Singh Vs. State Page No. 21 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 18:02:07 +0530 indicates as if only one FSL report pertaining to GEQD was being exhibited as the relevant line therein reads as under:-
"Accordingly, the said FSL report is exhibited as Ex.PX."
34. This conclusion gets strengthened from the fact that on both the FSL reports pertaining to GEQD, Shimla, same mark i.e. Ex.PX has been mentioned which is generally not the practice as different documents are given different exhibit marks. In any other eventuality, the word 'colly'/ 'collectively' is mentioned after exhibit mark which is not the case here. Be that as it may, there is no doubt that the report from FSL Delhi was never considered during evidence and was never so put to the appellant during his subsequent statement U/s 313 Cr.P.C dated 07.01.2020. So, the report from FSL Delhi cannot be considered by this court for deciding present appeal.
35. Coming to the report pertaining to GEQD, Shimla bearing no. CX- 323/2006 dated 25.07.2006, it can be seen that as per said report, the person who wrote red enclosed signatures stamped and marked S-1 to S-40 did not write red enclosed signatures similarly stamped and marked Q-1 to Q-6. Interestingly, the documents containing these questioned signatures as well as sample signatures are not on record. So, it remains a mystery as to whose questioned signatures were sent for comparison to GEQD Shimla and whose sample signatures were so sent along with that. So, this report is also of no help to the case of prosecution as far as present appeal is concerned.
CA No. 103/2020 Dambar Singh Vs. State Page No. 22 / 32 Digitally signedSUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 18:02:15 +0530
36. Coming to the other report bearing no. CX-388/2006 dated 04.12.2006, it has been opined therein that the person who wrote signatures stamped and marked Q-1 to Q-4 (signatures of PW-8 on his application for account opening pertaining to account no. 4000255) did not write signatures stamped and marked Q-9 to Q-18 (alleged signatures of PW-8 on withdrawal forms dated 15.02.2005, 07.11.2005 and 30.11.2005). Similarly, it was also opined that the person who wrote signatures stamped and marked Q-5 and Q-6 (signatures of Smt. Radha Rani on account opening from pertaining to account no. 4000247) did not write signatures stamped and marked Q-7 and Q-8 (alleged signatures of Smt. Radha Rani on withdrawal form dated 17.12.2005). Similarly, it was opined that the person who wrote writings stamped and marked S-1 to S-31 (sample handwriting of Ved Prakash) did not write red enclosed writings stamped and marked Q- 19 to Q-24 (various entries/handwriting in the passbooks of Sh. Shiv Nandan Account no. 4000255 and Smt. Radha Rani bearing Account no. 4000247). Smt. Radha was never examined as a witness. It appears that she was not even cited as witness in the list of witnesses annexed with the chargesheet/ supplementary chargesheet. PW-8 Sh. Shiv Nandan was never shown his application for account opening/withdrawal forms. No witness examined by prosecution stated about seizure of those documents so, the source of those documents remains not proved. In effect, this result is also of no help to the case of prosecution.
37. Perusal of testimonies of witnesses mentioned above, in particular their cross-examination as well as arguments made before the Court in appeal suggests that the appellant has nowhere denied that CA No. 103/2020 Dambar Singh Vs. State Page No. 23 / 32 SUNIL Digitally signed by SUNIL GUPTA GUPTA Date: 2024.06.07 18:02:23 +0530 embezzlement/misappropriation of funds had happened in Talimabad Post Office, however his defence is that he did not do any such thing and that the entire crime was committed by co-accused Ved Prakash who is unfortunately no more in this world. In his statement U/s 313 Cr.PC recorded as per procedure U/s 281 Cr.PC before Ld. Magistrate on 06.12.2017 also, appellant stated that he was working as Sub-Post Master during the relevant period, however, he did not commit any offence and that entries in the ledger as well as in the passbooks of the depositors were made by Ved Prakash. He also stated that he was not having any knowledge in this regard and that he had already been exonerated by the postal department in the departmental inquiry. In his subsequent statement U/s 313 Cr.PC also, he pleaded innocence. It is matter of record that nothing pertaining to appellant having been exonerated by his department in departmental inquiry has come on record till date. It is to be noted here that as per PW-2 Sh.S.P. Singh, appellant was in-charge of Sub Post Office and his nature of duties included the duty to look after the account of account holders, to receive money, to make entries in the various passbooks and also to issue new passbook etc to various customers. In these circumstances, whatever wrong has happened in the official dealings at Talimabad Post Office, Sangam Vihar is necessarily to be attributed to the appellant also because being the in-charge thereof, it was his duty to see that everything was done as per procedure and no such offence could have been committed there without his involvement. It is worth pointing out here that apart from appellant being Sub Post Master over there, Sh. Ved Prakash was the only other staff posted in said post office and he was merely a Group D employee probably to perform ancillary functions. It is not the case of prosecution that Mr. Ved Prakash was having the duty to CA No. 103/2020 Dambar Singh Vs. State Page No. 24 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA 18:02:31 +0530 Date: 2024.06.07 look after the accounts of account holders in any manner whatsoever. It appears that it is not even the defence of appellant that Sh. Ved Prakash was having any such assigned duty. No such question was put to PW-2 Sh. S.P. Singh in his cross-examination. Testimony of PW-7 in particular is worth mentioning as she stated that her account was opened with the help of appellant on 01.06.2005, wherein a sum of Rs. 80,000/- was deposited. She also stated that on 02.01.2006, when she went to withdraw the money, appellant was not there and another person was present who told him that her money had been withdrawn by someone. There is a document Ex.PW15/A3 pertaining to account no. 4000292 belonging to her (she did not mention the account number in her testimony, however, same is there in her complaint duly proved as Ex.PW7/A and there was no cross- examination of her on this point) showing that a sum of Rs.80,000/- was deposited in that account on 01.06.2005 thereby corroborating her testimony on this aspect. It also shows that said sum of Rs. 80,000/- was withdrawn on three dates i.e., Rs. 30,000/- on 10.06.2005, Rs. 30,000/- on 16.06.2005 and Rs. 20,000/- on 24.10.2005. There is another document Ex. PW15/A-2 on record which is containing all the deposits/ withdrawal entries dated 10.06.2005 as per which, a sum of Rs. 11,000/- in total was deposited in various accounts on that day whereas a sum of Rs. 1,71,700/- was withdrawn. This figure of Rs. 1,71,700/-includes the amount of Rs. 30,000/- allegedly withdrawn from the account no. 4000292 pertaining to PW-7. This document was specifically put to appellant in his statement U/s 313 Cr.P.C. however he simply stated that those documents were false and fabricated and that he had nothing to do with those documents. So, the testimony of PW-7 to the effect that when she approached the post office on 02.01.2006 for withdrawal of money, she found that money had already CA No. 103/2020 Dambar Singh Vs. State Page No. 25 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 18:02:39 +0530 been withdrawn by someone stands corroborated from record. Interestingly, PW-7 was not cross examined at all on the point of withdrawal of money from her account. In these circumstances, it stands proved that the amount deposited in her account on 01.06.2005 was unauthorizedly withdrawn on different dates by someone else. Now, who had withdrawn that amount if it was not so done by the account holder was something which could have been in the knowledge of appellant only but he did not lead any evidence to that effect and did not provide any explanation except a vague explanation to the effect that entire crime was done by co-accused Ved Prakash. In these facts, Section 106 Indian Evidence Act, 1872 becomes material which provides as under:-
"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
38. Ld. Defence Counsel has submitted that Ld. Magistrate committed an error in applying Section 106 Indian Evidence Act in the given facts as the burden of proof on the prosecution never shifts. Regarding application of Section 106 Indian Evidence Act, this Court is guided by the judgment of Hon'ble Apex Court in Balvir Singh Vs. State of Uttarakhand Crl. Appeal No.301/2015 wherein it was held as under:-
"42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to CA No. 103/2020 Dambar Singh Vs. State Page No. 26 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 18:02:48 +0530 support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.
43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:CA No. 103/2020 Dambar Singh Vs. State Page No. 27 / 32
Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2024.06.07 18:02:56 +0530 "All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence."
44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see ProfessorPage 32 of 42 Glanville Williams--Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion--para 527 negative averments and para 528
--"require affirmative counter-evidence" at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.CA No. 103/2020 Dambar Singh Vs. State Page No. 28 / 32 Digitally signed by SUNIL
SUNIL GUPTA GUPTA Date:
2024.06.07 18:03:04 +0530
45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveller himself : see Section 106 of the Indian Evidence Act, illustrations (a) and
(b).
46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony.
Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required CA No. 103/2020 Dambar Singh Vs. State Page No. 29 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2024.06.07 18:03:12 +0530 to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054."
(emphasis supplied)
39. At the cost of repetition, it is worth mentioning that appellant herein was in-charge of Talimabad Post Office and was having the duty to look after the entire work pertaining to accounts maintained therewith. Any discrepancy relating thereto should have been explained by him only which he has miserably failed to do. There cannot be direct evidence in such cases of criminal breach of trust by a Govt. Servant and circumstantial evidence can be referred to for examining as to whether prosecution has proved its case or not. In this case, as per PW-7, she had given Rs.80,000/- for depositing the same after opening the account with the help of appellant on 01.06.2005. There were unauthorized withdrawals from her account. Appellant was in-charge of that post office and the other staff Mr.Ved CA No. 103/2020 Dambar Singh Vs. State Page No. 30 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2024.06.07 18:03:19 +0530 Prakash was merely a Group D employee so only two inferences are possible regarding withdrawal from an account maintained there. Either the withdrawal is done by the account holder which she has denied and she has not been cross-examined on this aspect or someone else has done that but burden to show that will remain on accused as he was the one responsible for entire work there. Application of Section 106, Indian Evidence Act, 1872 by Ld. Trial Court in the given facts is justified after applying the principles laid down by Hon'ble Apex Court in Balvir Singh (supra). PW-7 has also deposed that she was refunded her amount by post office later on clearly reflecting that wrongful loss was caused to Department of Post by the appellant.
40. Considering the above discussion, this Court is of the view that prosecution has successfully proved ingredients of Section 409 IPC against the appellant by way of testimony of PW-7 and documents pertaining to her account on record. Ld. Trial Court was justified in convicted him for that offence.
41. As far as offence U/s 477A is concerned, in view of this Court only a person regarding whom there is specific evidence on record to the effect that false entries in the accounts were made by him only can be held guilty for commission of that offence. In this case, although the offence U/s 409 IPC has been duly proved against the appellant, however, there is nothing on record to suggest that false entries in the document Ex.PW15/A-2 and PW15/A-3 were done by him. Three FSL/expert reports on record are of no CA No. 103/2020 Dambar Singh Vs. State Page No. 31 / 32 Digitally signed SUNIL by SUNIL GUPTA GUPTA 2024.06.07 Date:
18:03:27 +0530 help to the case of prosecution for the reasons as mentioned earlier. Accordingly, appellant stands acquitted for the offence u/s 477A IPC.
42. The sentence imposed by Ld. Trial Court seems appropriate in the given facts considering the nature of offence committed by appellant. Ld. Addl. PP for State has submitted that costs incurred in prosecuting the appellant should be awarded to prosecution in terms of judgment of Hon'ble Delhi High Court in Karan Vs. State NCT of Delhi, Crl. Appeal No. 352/2020. Record shows that Ld. Magistrate has imposed maximum possible fine of Rs.10,000/- within his power and same has been directed to be paid as compensation to Department of Posts under Section 357(1) Cr.P.C. In these facts, no further compensation/ cost of prosecution is permissible to be given under Section 357(3) Cr.P.C. or any other law. The request of Ld. Addl. PP for State stands declined accordingly.
43. Appellant is absent today as his one relative is stated to have expired. Considering his previous satisfactory conduct in appearance before this Court, he is directed to surrender before Ld. Trial Court on 21.06.2024 at 02:00 pm to undergo sentence for the offence u/s 409 IPC as per order on sentence dated 29.02.2020. On his failure to do so, Ld. Magistrate is directed to take appropriate coercive steps as per law to ensure compliance.
Digitally signedAppeal stands disposed of in above terms. SUNIL GUPTA by SUNIL Date:
GUPTA 2024.06.07 18:03:37 +0530 Announced in the open (SUNIL GUPTA) court on 07.06.2024 Additional Sessions Judge-06 South, Saket Courts, New Delhi CA No. 103/2020 Dambar Singh Vs. State Page No. 32 / 32