Delhi District Court
Vikas Khanna vs State on 7 June, 2022
IN THE COURT OF SH. AJAY KUMAR JAIN
ASJ/SPECIAL JUDGE (NDPS), PATIALA HOUSE COURTS
NEW DELHI
IN THE MATTER OF
CA No. 165/19
Vikas Khanna
S/o Late Sh. Vijay Khanna
R/o 9407, DLFIV,
Gurugram, Haryana
..........Appellant/Accused/Convict
Versus
State
.........Respondent
FIR No. 438/2015
PS Tilak Marg
U/s:420/467/468/471/380/201 IPC
Cr. C No. 59978/16
JUDGMENT
1. Vide this appeal, the appellant/accused/convict Vikas Khanna challenged the judgment dated 29.07.2019 convicting the accused for the offence u/s 417/467/468/471/380/201/120B IPC and order on sentence dated 08.08.2019.
2. Brief facts as per the chargesheet filed before the trial court are that a complaint dated 21.12.2015 is lodged by Joint Registrar (criminal), Hon'ble High Court of Delhi in which it is stated that bail application no. 706/14 was filed by accused Vijay Khanna and his wife Radha Khanna. During proceedings on 28.10.2015, accused Vijay Khanna handed over a banker's cheque dated 15.10.2015 drawn on Citi Bank in favour of Registrar General, High Court for the sum of Rs. 53 lacs in compliance of order dated 26.05.2014 however when the cheque was presented to back, it was returned unpaid with the remark cheque is forged, fake/stolen, in the meanwhile, accused Vijay Khanna inspected the judicial filed on 02.12.2015, 04.12.2015 and 05.12.2015. On 07.12.2015 Mr. Pramod Kumar dealing assistant and Mr. Mamik Tirkha, AOJ Criminal noted Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 1/9 missing of bank note, noting of cash branch, noting of criminal branch and fake banker's cheque. Thereafter, vide order dated 09.12.2015 bail application of accused were dismissed and the Ld. Registrar General was directed to institute appropriate proceedings against Vijay Khanna pursuant to which this complaint is filed and the present FIR was registered.
3. During investigation, accused Vijay Khanna on production warrants was arrested. He disclosed that to secure the anticipatory bail, submitted the forged bank draft of Rs. 53 lacs. For this purpose, he has used the cheque book of his son Vikas Khanna lying in the house which he was not using, and later on, upon inspection of high court file, removed the said forged banker's cheque, the bank noting and also burnt all these documents in the park in front of his house. The specimen signature and handwriting of accused were also taken. During investigation, it was found that the accused Vikas Khanna has given the said cheque book to his father, and in that account only his salary came, and he has not used the said cheque book series. The accused Vikas Khanna was not arrested and he was kept in column no.12.
4. The appellant was not chargesheeted however while taking the cognizance vide order dated 24.06.2016, the trial court summoned this appellant/accused Vikas Khanna. During proceedings vide order dated 02.05.2017 framed the charges u/s 420/467/468/471/380/301 r/w section 120B against both the accused. The prosecution for substantiating its case examined 15 witnesses.
5. Ld. Counsel for the appellant/accused Vikas Khanna submitted that this accused is convicted merely on the basis of the fact that he is the son of the co accused Vijay Khanna against whom the entire act of commission of forgery and cheating is alleged by the prosecution. Ld. Counsel submits that during the appeal proceedings, the said accused Vijay Khanna died and the proceedings against him stand abated. Ld. Counsel submits that none of the witnesses have deposed against the present accused and from the perusal of the judgment, it can be made out that the Ld. Trial court based the conviction only on presumptions and assumptions, and one of the reasons given is that for the reasons best known to Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 2/9 present accused, he has not initiated any proceedings against his father for misusing the cheque leaf. Ld. Counsel submits that it is not expected from a son to initiate proceedings against father against whom prosecution has already been lodged by the State.
6. Ld. Counsel submits that the present accused was employed in a company and opened an account bearing no. 543770622 in Citi Bank NA on 28.05.2010, and on 05.06.2010 he was issued chequebook containing series 898331 to 898345. This fact was stated by PW4 Jagdish Salwan in his reply Ex.PW4/A, and also produced the statement of account of appellant which clearly shows that appellant was not using this chequebook. Only his salary comes into the said account and he used to withdraw the salary through ATM. He left the company in 2011, and in the year 2011 itself, closed the account and for that reason, the cheque was lying unused for more than 5 years i.e. from 05.06.2010 to 28.10.2015. Ld. Counsel submits that the present accused, son of accused Vijay Khanna is residing with his father and mother. The said chequebook was in the house and in possession of his father and there was no occasion for him to know about the said chequebook because he was not using the same. Ld. Counsel submits that Ld. Trial court without any basis observed that his father cannot misuse the cheque leaf without his knowledge. Accused Vikas Khanna came to know the misuse of the cheque only when he was summoned by the IO and prior to that he was not even aware whether any cheque was removed or misused by his father Vijay Khanna. There is no occasion for the accused to initiate the proceedings against father Vijay Khanna. Accused Vijay Khanna in his disclosure statement categorically stated that he had misused the chequebook without knowledge of present accused and after knowledge of the present case destroyed the cheque leaves. Ld. Counsel submits that trial court in para 149 incorrectly observed that present accused was not present in India however the present appellant Vikas Khanna never employed abroad. It is his younger brother Varun Khanna who was employed in Philippines. Ld. Counsel submits that there is no evidence to show the involvement of present accused with coaccused Vijay Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 3/9 Khanna his father. It cannot be inferred from the material on record that he has the conspiracy with main accused. Merely on the basis that he is the son of co accused Vijay Khanna, cannot be implicated for offence u/s 120B IPC [relied upon Damodar Vs State of Rajasthan, 2003 Cr. LJ 5014 (SC)].
7. Ld. Addl. PP submits that the cheque leaf which is converted into forged banker cheque by deceased accused Vijay Khanna, father of present appellant is taken out from the chequebook of present accused. Both are residing together. The present accused not at any point of time pointed out or initiated any proceedings against his father that his father has misused his chequebook therefore, the inference of conspiracy could be drawn. Hence the accused is rightly convicted for the offence charged.
8. Heard. Record perused.
9. Brief background facts are that during the hearing of bail application on 26.05.2014 before Hon'ble High Court of Delhi the deceased accused Vijay Khanna and his wife Radha Khanna agreed to deposit Rs. 77 lacs pursuant to which deceased accused Vijay Khanna deposited Rs. 24 lacs however after forging the cheque leaf of account of his son (present accused), he prepared the banker's cheque dated 26.10.2015 for the sum of Rs. 53 lacs and filed before the Hon'ble High Court of Delhi which was dishonoured on account of being forged, thereafter, the Hon'ble High Court of Delhi directed Registrar General to initiate appropriate proceedings then the present FIR was registered.
10. During investigation, accused Vijay Khanna disclosed that he has found one old bank account chequebook of Citi Bank of his son Vikas Khanna. He had taken out one cheque and written Banker's cheque on its top and deposited before the Registrar General. Thereafter, the court ordered to convert it into FDR for 90 days and then after inspection removed the incriminating documents including the forged cheque. There is nothing in his statement that his son has provided him the chequebook for forgery.
11. The trial court qua this accused in the impugned judgment observed that this accused was not arrested during investigation however kept in column no.12 Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 4/9 but while taking the cognizance, he was summoned and charges were framed against this accused. The charge against the present accused is that the forged banker's cheque which was used by his father accused Vijay Khanna was issued from his account. It is also observed in the impugned judgment that accused Vijay Khanna despite opportunity failed to state and prove before the court how he came into possession of forged banker's cheque due to which an adverse presumption has been raised against him. This accused Vikas Khanna not disputed the fact that the chequebook belongs to him, and also not led any defence evidence but in his statement u/s 313 Cr.PC pleaded that he has an independent source of income but the funds earned by him are managed by his father and his father takes care of the entire family expenses including the investments and payment of installments and due to this reason his account details and chequebook signed or unsigned remain in the custody of his father Vijay Khanna. This accused has also not initiated any proceedings against his father Vijay Khanna.
12. PW4 Jagdish Salwan, Manager Citi Bank duly proved this cheque is from the chequebook of present accused. It is also found in the testimony of PW4 that two cheques have been used, and it is against the natural course of conduct the present accused has not obtained the remaining cheque leaves. The trial court in the impugned judgment also observed that this court does not find any reason that why accused Vijay Khanna would keep seeking time from Hon'ble High Court of Delhi for awaiting funds from his son if the chequebook of accused Vikas Khanna from which one cheque has been used as forged banker's cheque, being actually in possession of Vijay Khanna then he could use the same before the Hon'ble High Court of Delhi much earlier. It has also been observed by trial court had the accused Vijay Khanna actually having control over the funds of his son Vikas Khanna who was working at Philippines then he could made some part payment which was done earlier but none was made. It is also observed by Ld. Trial court that had the chequebook of accused Vikas Khanna was in possession of Vijay Khanna then there appears to be no reason for accused Vijay Khanna to Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 5/9 remain under the threat of withdrawal of interim protection for such a long time. Ld. Trial court observed that it is also not defence of Vikas Khanna that he was not in India on the day when the cheque was used, and it is not the defence of accused that father wants to drag him in criminal case therefore, found that present accused is a part of criminal conspiracy and convicted this accused for offence u/s 120B r/w 417/467/468/471/380/201 IPC
13. As per the case of prosecution, this accused is not at all involved with co accused Vijay Khanna, his father and the mother who had agreed to deposit Rs. 77 lacs in a bail matter before the Hon'ble High Court of Delhi. It is also not the case of prosecution that this accused is involved in the pairvi of said case or at any time accompanied his father to the Hon'ble High Court of Delhi for the said case. It is also not the case of prosecution that this accused has ever conducted the inspection of the files with his father and helped him in removing the forged Banker's cheque and other notings. It is also not the case that this accused is even aware about the proceedings against his father and actively participated in the pairvi of his father and mother before police or in the court. The police during investigation also do not found any overt act at the instance of present accused therefore, not arrested this accused and kept him in column no.12. The deceased coaccused in his disclosure statement before the police nowhere stated at any point of time present accused helped him in doing the act of forgery. The said co accused categorically disclosed that he has taken out the chequebook of his son without his knowledge and forged the banker's cheque on one of the cheque leaf and destroyed the balance chequebook.
14. The present accused is tried merely on the basis that he is son of co accused Vijay Khanna and one leaf of his chequebook has been used. This accused is not at all associated with coaccused Vijay Khanna in the criminal proceedings before Hon'ble High Court of Delhi and also in creating the forged cheque. The testimony of PW4 Jagdish Salwan, Manager Citi Bank is relevant who stated out of entire chequebook, only two cheque leaves were used not any other cheque leaf. This itself suggests that the chequebook is not used by the accused and the Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 6/9 money also stopped coming in the said account since 2011. The present cheque leaf was used in the year 2015. This itself suggests that chequebook was lying idle in the house and the present accused is not pursuing the said account actively through the cheques.
15. The Ld. Trial court construes the factum of conspiracy against this accused primarily on the ground that the coaccused Vijay Khanna despite opportunity failed to state and prove before the court how he came in possession of forged banker's cheque due to which an adverse presumption has been raised against him. Secondly, this accused Vikas Khanna not disputed that the chequebook belongs to him and pleaded that he has independent source of income but his funds managed by his father. Thirdly, this accused has not initiated any proceedings against his father Vijay Khanna. Fourthly, coaccused Vijay Khanna keeps seeking time from Hon'ble High Court of Delhi for awaiting the funds from his son and if he had been actually in possession of the said chequebook he can use the same much earlier.
16. There is no direct circumstance on record from which it can be inferred that this accused is associated with his coaccused Vijay Khanna in forging the cheque. The witnesses examined before the court are High Court officials, bank officials, etc but none of them stated that he was ever present with his father during the proceedings. This accused is not stated to have contributed any amount to his father i.e. around Rs. 24 lacs which was deposited in the High Court earlier from his account. The independent earning of this accused is clear from his account statement showing his salary as Rs. 1,13,360/ per month in the year 2011. Therefore, there is no need for this accused to indulge in hanky panky activities with his father. Even otherwise, there is nothing in the prosecution case that this accused has at any point of time indulged in arranging the funds with his father for the case pending at Hon'ble High Court of Delhi. This accused in his statement u/s 313 Cr.PC categorically stated that he has handed over all the chequebooks in the custody of his father who manages the entire expenses of the house and came to know about the present case from the IO. There is nothing on Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 7/9 record that any kind of handwriting of present accused came on the present cheque which was misused. There is nothing in the statement u/s 313 CrPC from which it can be inferred that this accused has given chequebook to his father for use of any kind of forgery. Ld. Trial court also inferred the conspiracy from the point that if the chequebook was with father, he could use the same much earlier. The factum of using of cheque came after delivering Rs. 24 lacs however when accused Vijay Khanna could not give the balance of Rs. 53 lacs, he forged the cheque in question. The act that accused Vijay Khanna has no used the cheque at the first instance do not in any way suggest that it was given later on by present accused for forgery.
17. Though, the direct proof of conspiracy is hardly available however it does not mean that the court can infer conspiracy merely on the basis of presumptions and assumptions, and the said inference must be on the basis of concrete fact. This accused is not found to be associated with his father in any of his activities for which he was implicated in number of cases. This accused is also not found to be associated with his father in any of the hearing at Hon'ble High Court of Delhi or while inspection of file in the Hon'ble High Court of Delhi. The father of accused during investigation disclosed that he used the chequebook without knowledge of his son. The police also did not find any overt or covert act of present accused except using of his chequebook leaf therefore, he was kept in column no.12. There is nothing came in evidence that this accused has ever helped his father in illegal activities. This accused is found to be depositing the salary amount in the said account and the said account was not used after 01.10.2012, and the incident of forgery is in 2015, which clearly suggests that the said chequebook was lying idle without any use in the house which was misused by coaccused Vijay Khanna.
18. On reappreciation of evidence, I do not find any overt or covert act of present accused Vikas Khanna with his father coaccused Vijay Khanna connecting him with the forgery of cheque in question. Therefore, the impugned judgment of conviction and order on sentence qua the present accused/appellant Vikas Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 8/9 Khanna set aside. Accused /appellant Vikas Khanna stands acquitted of the charge. Accused is directed to furnish bonds in terms of section 437A Cr.PC. Bonds furnished. Criminal Appeal is allowed and disposed off.
19. Copy of the judgment alongwith TCR be sent back to trial court. Copy of the judgment be given to the appellant as well as complainant free of cost. After compliance, file be consigned to record room.
Announced in the open court on this 7th day of June, 2022 (Ajay Kumar Jain) ASJ/Spl. Judge, NDPS/N. Delhi 07.06.2022 Vikas Khanna Vs. State CA No.165/19 Date: 07.06.2022 Page No. 9/9