Delhi District Court
State vs . Laxmi Kant Etc. on 19 December, 2011
: 1 :
IN THE COURT OF SH. AMIT ARORA, METROPOLITAN MAGISTRATE,
NORTH- 04, TIS HAZARI COURTS, DELHI
State Vs. Laxmi Kant Etc.
FIR No : 13/93
U/S : 420/468 IPC
P.S : Partap Nagar
1. Sl. No. of the Case : R42881/06
2. Date of Commission of Offence : 30.11.92
3. Date of institution of the case : 18.07.1994
4. Name of the complainant : Sh. K.L. Kapur
5. Name of accused, parentage
& address : 1. Laxmi Kant Verma, S/o Shiv
Sharma, R/o Vill. Khodi Gaon, Gurgaon.
6. Offence complained or proved : U/s 420/468 IPC.
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted
9. Date of Final Order : 19.12.11
JUDGMENT
1. The accused Laxmi Kant Verma has been sent to face trial with the allegations that he was employed with the complainant's "Jaipur Golden Transport Company"
as a cashier cum accountant and during his employment he had misappropriated a sum of Rs. 11,50,000/ by making false entries in the cash book and by preparing false vouchers showing payment made to the parties, which were FIR NO: 13/93 P.No. 1 of 11 : 2 : never paid.
2. In brief the criminal machinary was set into motion on the basis of a complaint filed by Sh. K.L. Kapur who was the General Manager of Jaipur Golden Transport Company. The complaint was filed on 14.01.1993 addressed to the SHO, PS Partap Nagar(now known as Gulabi Bagh) and it was stated that Laxmi Kant Verma was responsible to receive and disburse payment on behalf of the complainant company and was also looking after the bank transactions, preparation of cash vouchers etc. making entries in the ledgers. It is stated that on 31.11.1992 during the surprise checking of account book which was conducted by Sh. S.B. Trikha, Chartered Accountant it was found that there was a shortage of Rs.16,000/ in cash book in the year 19921993 and the accused had falsified certain entries i.e receipt of one party M/s Alok Textiles. It was stated that when the matter came to the knowledge of the General Manager/complainant, a thorough checking of the account were made and it was found that Laxmi Kant Verma had misappropriated in as much as Rs.11,15,000/. The details showing the manner in which misappropriation was committed was also stated in the complaint. In brief it was alleged that Lami Kant Verma had misappropriated Rs. 5,25,000/ by making false entries in cash book, he had prepared 9 vouchers and inflated the sum of Rs. 1,00,000/ in the account books and the said Rs. 1,00,000/ was also misappropriated. It is further alleged that the accused debited Rs. 2,70,000/ showing payment to various persons on different dates which were actually never paid and he emblezzed the sum of Rs. 2,70,000/. It was stated that all the alterations were made by the accused in the company FIR NO: 13/93 P.No. 2 of 11 : 3 : record in his own hand writing and a total sum of Rs. 11,15,000/ was misappropriated by the accused.
3. On the basis of this complaint an FIR was registered for the offence u/s 420/408 IPC. The investigation were conducted and in the course of investigation IO collected certain documents i.e records from the Jaipur Golden Transport Company and recorded the statement of the witnesses. The accused Laxmi Kant Verma was arrested on 02.02.1993 and one other coaccused Pradeep Kumar Sharma was also arrested on 04.02.1993. During the course of investigation the matter was further investigated by S.P. Rawat who also seized the cash book and other documents from the complainant company. On 24.01.1994 hand writing specimen of the acused were taken and they alongwith certain documents seized from Jaipur Golden company were sent to the CFSL for opinion. On the basis of the investigation the accused Laxmi Kant Verma and Pradeep Kumar Sharma were chargesheeted and challan was filed in the court.
4. On 24.02.2005 the court took cognizance for the offence and both the accused were summoned. They were provided with the copy of challan and after hearing arguments, the accused Pradeep Kumar Sharma was discharged by the court as he was charge sheeted only on the basis of disclosure of accused Laxmi Kant Verma. However as there was a prima facie case made out against the accused Laxmi Kant Verma a charge u/s 408 IPC and in the alternative u/s 420 IPC was framed against him. The accused pleaded not guilty and claimed trial.
5. To substantiate its allegations the prosecution had examined as many as 8 witnesses. The complainant Sh. K.L. Kapur was examined as PW1. PW2 FIR NO: 13/93 P.No. 3 of 11 : 4 : Rakesh Gera, who used to work in the transport company as a clerk in the legal department was examined as PW2. PW3 is G.K. Shah and he was a legal advisor in the complainants company. PW4 was S.B. Trikha, who was the chartered accountant working with the complainant company. PW5 Roshan Lal was the inspector in the complainant company. PW6 was the duty officer who had proved the FIR as PW6/A. PW7 is SI is SI Arjun Singh who is only a formal witness as he accompanied the IO and had only deposed about the disclosure statement given by the accused persons. The said disclosure statement is hardly of any significance as it is a confession given to police which is inadmissible in evidence. PW7 is P.C Tamtam who is formal witness of the prosecution.
6. In the present case FIR was registered as far back in the year 1993 and the challan was filed on 18.07.1994. Thereafter the matter got delayed on several grounds. Initially it was deficient copies which delayed the matter and it was only in the year 1999 that the copies were finally supplied to the accused persons. It is evident from order sheet, that a long time was taken in serving the IO and a lot of efforts were made to ensure the attendance of the IO. In the year 2000 the matter was listed for consideration on charge and finally on 24.02.2005 the court had framed charges against accused Laxmi Kant Verma and the other accused Pradeep Sharma was discharged. The prosecution although cited as many as 17 witnesses however it had only examined 8 witnesses out of which many are hearsay witness.
7. It will be useful to discuss in brief the evidence led by prosecution : PW1 is Sh. K.L. Kapur, who is complainant in this case and was General Manager in the FIR NO: 13/93 P.No. 4 of 11 : 5 : complainant company. He deposed that in the year 1992 during the surprise checking of accounts book, the chartered accountant Sh. S.B. Trikha had discovered shortage of cash of Rs. 16,000/ and thereafter a wholesome inquiry was conducted. He deposed that it was found during inquiry that the book of accounts maintained by accused Laxmi Kant were having may forged entries and accused had made overwriting in the book of accounts by inflating the payments made to various cutomers. He deposed that Laxmi Kant embezzled a total amount of Rs.11,00,000/ and the written complaint filed by him was exhibited as Ex.PW1/A. The witness was cross examined by the accused. In his cross examination he denied that the complaint filed by him was on hearsay basis. He admitted that accused was appointed as a clerk and there was a senior who checked the working of the clerk. It is stated in the cross examination that the accused used to make wrong entries in the vouchers and he came to knew about this fact when he saw receipts of the parties. He stated that when the parties used to come to pay debts they used to show their receipts and lesser amount was entered in the ledger book by the accused. He also admitted that the ledger book of accounts were not regularly audited by the chartered accountant, and it was audited only twice or thrice in a year. He denied the suggestion that accused was falsely implicated. He admitted that there were other staff members who was dealing with the accounts but volunteered that accused was the incharge. He also admitted that sometime the manager used to take home delivery in the absence of the accused.
8. The another main witness of the prosecution is the chartered accountant namely FIR NO: 13/93 P.No. 5 of 11 : 6 : S.B.B Trikha, who was examined as Ex. PW4. He had deposed that he conducted the checking of the accounts and he found shortage of Rs.16,000/ in cash. He also deposed that the accused was maintaining the cash books and had inflated parties accounts by debiting Rs. 16,000/ on different dates and mis appropriated Rs. 16,000/. He further deposed that in December 1992 he again conducted a thorough checking of the accounts books and found that accused had embezzled Rs. 11,15,000/ belonging to the company by inflating the debit side of the cash book. He further deposed that he informed the chief manager PW1 and stated he has orally informed the manager about the manner in which the accused had embezzled the cash. He also deposed that he submitted all the documents to substantiate the findings. In his cross examination he denied the suggestion that he was deposing in the pressure of the company.
9. The next witness is PW2 Sh. Rakesh Gera, who was working in the legal department. He deposed that PW4 informed the legal department of the company about the discrepency of the accounts books. Threafter he and G.K. Shah, Legal Advisor of the company and Roshan Lal met PW4. He deposed that the chartered accountant of the company informed there the entire facts regarding the discrepency in the accounts book. He deposed that he alongwith other officials of the company went to PS to file a written complaint and he also joined the investigation. He deposed that Sh. Gulshan Shah, legal advisor had handed over four photocopies of statement submitted by the accused and his father regarding the embezzlement of cash and the said statement were seized by the police vide siezure memo Ex. PW2/A. He deposed that accused was FIR NO: 13/93 P.No. 6 of 11 : 7 : arrested and his personal search was taken and the accused made a disclosure vide memo Ex. PW2/C. In his cross examination the witness has categorically admitted that he had no personal knowledge of this case and his knowledge his based on the information received from Mr. Trikha (PW4) and Mr. Shah(PW3). He also admitted that he had no personally check the accounts book. Hence, in view of the admission of the witness it is clear that he is a hearsay witness and his testimony is not admissible. PW3 is G.K. Shah, who was also legal advisor of the company. In his deposition he has stated that he was informed by the General Manager about the mis appropriation committed by the acused. His evidence is only formal in nature.
10. PW5, Roshan Lal, who as an employee of the company and was working as claims inspector in the company. He deposed that he had participated in the police investigation and the accused had taken the police to Mayur Vihar, Dilshad Garded and he was also present at that time. In his cross examination he has stated in has no personal knowledge of the complaint and nothing was recovered from the possession of the accused in his presence. He also deposed that the work of home delivery was looked by the then manager Pardeep. He also stated that Pardeep used to send goods to the parties and the recovery from the parties were given to Pardeep. Hence the witness is only formal in nature and he was only an employee of company and having no personal knowledge about the misappropriation allegedly committed by the accused.
11. The other witness examined by prosecution are police official namely PW6, who was a Duty Officer and had proved the FIR as Ex. PW6/A. PW7 is SI Arjun FIR NO: 13/93 P.No. 7 of 11 : 8 : Singh, who was only a witness to the disclosure statement given by the accused and the same was proved as Ex. PW7/C. There is one another witness namely P.C. Tamta, PW7 who has stated that he has no knowledge about this case and the accused was residing in his locality in the year 1993. Witness was cross examined by Ld. APP for the state. He denied the suggestion that accused Laxmi Kant came to him and requested to keep Rs. 5,000/.
12. As the remaining witnesses could not be examined by the prosecution, the prosecution evidence was closed. The prosecution failed to examine the other witnesses in this case despite several repeated opportunities. It is argued by the Ld. cl. for the accused that from the testimony of the material witnesses no case made out against the accused. It is also argued that the prosecution has failed to produced the accounts books which are alleged to be fabricated by the accused. It is stated that accounts book of the company which are stated to have been infalted by the accused should have been proved in court and the prosecution was under duty to prove that there were alteration/ in the hand writing of the accused. It is stated that even the CFSL report could not establish that the hand writing on the questioned documents was of the accused. I may add here that Sh. S.C. Mittal was also named as prosecution witness in the challan. He was the principle Scientific Officer from CFSL. The witness had stated in the court that documents were forwarded to him for comparison and he had sought for some further specimen hand writing for the comparison. It is strange and shows the callous nature of the investigation agency especially the IO. As per the record there is a report dated 22.08.1994 having number CFSL94/D 104 as per the FIR NO: 13/93 P.No. 8 of 11 : 9 : report it is stated that "the specimen supplied are limited in extent and do not afford entire range of comparable matter. As such further comparable material necessary for further examination and opinion in this case may be procurred and sent to laboratory at the earliest.
13. It is highly strange that subsquently no such attempts was made by the IO to procure the specimen from the accused and no further opinion was taken. I am surprised that investigation officer has not discharged his duty in a fair manner for the reason best known to him. It is also evident from the order sheet that he deliberately avoiding the process of the court during the trial of this case and the court had to adopt coercive methods to secure his attendance. The role of the IO SI Rajiv Ratan and SI S.P. Rawat was totally unacceptable as they defeated the spirit of the law and acted in a highly arbitrary manner. The seizure memo of certain statement which are extra judicial confession made by the accused is also no significance. There are some photocopies of documents which are certain letters written by the accused and his father to the complainant company wherein the accused had made a confession and has stated that he will pay back the company for the loses. Only photocopies have been filed on record. Neither the hand writing on these documents have been proved nor the signature on these documents have been proved. The photocopies of these extra judicial confession letters are of no significane. Their authencity is itself doubtfull.
14. Finally on 01.12.11 the prosecution evidence was closed as the prosecution failed to examine its remaining evidence. The allegations which have been made against the accused are of misappropriation and embezzlement of a huge sum of FIR NO: 13/93 P.No. 9 of 11 : 10 : money by way of forgery and falsification of accounts book and ledger books. In such circumstances it was incumbent upon the investigating agency have seized the original documents i.e register, ledger book and accounts book of the company and to have produced those accounts book in the court at the time of evidence. Similarly, it was necessary to make out a successful case against the accused that the hand writing of the alterations or preparation of false vouchers should have been proved by comparison through a hand writing expert who would have supported the case of the prosecution and would have connected the accused with the false entries. Further the IO for the reasons best known to him failed to complied with the directions received from the FSL expert who had sought for further specimens to arrive at a conclusion. However no such steps were taken by the investigating agency.
15. It is alleged by the complainant in his oral testimony that accused prepared false receipts showing inflated amount i.e payment made to the various parties and a mtter was brought into knowledge of the complainant, when he saw those entries. However, no such party was examined in court neither any such receipts was produced. Admittedly the prosecution faled to recover any amount of cash from the accused which wa allegedly misappropriated by him. Hence in the absence of this, there is hardly any piece of evidence agaisnt the accused except the oral testimony of the PW1 and PW4. The entire case pertains to falsifications of record and the same could not have been proved to be forged in the absence of any record. The oral testimony of the witness is not sufficient to make a foolproof case against the accused. There are only bare allegations which are not FIR NO: 13/93 P.No. 10 of 11 : 11 : suppported with any substantive evidence.
16. The prosecution could not examined the witness namely Sisal Kumar, Rajinder Sharma and Roshan Lal. It was the case of prosecution/investigating agency that the accused handed certain part of the misappropriation money to these persons who have acknowledge the receipt during their statement u/s 161 CrPC. However, none of these witnesses could be examined by the prosecution.
17. In my opinion the prosecution miserably failed to proved its case beyond reasonable doubt. The accused is hereby acquitted of all the charges. Bail bond /surety bonds are discharged. Endorsement if any on documents be cancelled.
File be consigned to record room.
Announced in the open court
On 19th December , 2011 (AMIT ARORA)
Metropolitan Magistrate-04 /North
DELHI
FIR NO: 13/93 P.No. 11 of 11