Delhi District Court
State vs Sachin Suri on 27 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-12,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Presided over by- Ms. Neha Barupal, DJS
Cr. Case No. : 87821/2016
CNR No. : DLSE020000962011
FIR No. : 221/2011
Police Station : Amar Colony
Section(s) : 420/468/471/408 IPC
In the matter of:
STATE
VERSUS
SACHIN SURI
S/o Sh. Vinod Suri
R/o H.No. C-10/182 Rohini Sector 5, New Delhi.
1. Name of Complainant : S. K. Shelly
2. Name of Accused : Sachin Suri
S. 420/468/471/408 IPC
3. Offence complained of :
(Charge u/s 408/420 IPC)
4. Plea of Accused : Not guilty
Date of commission of
5. : 02.11.2010 to 30.06.2011
offence
6. Date of filing of case : 09.08.2011
7. Date of reserving Order : 05.07.2023
8. Date of pronouncement : 27.07.2023
Convicted u/s 408 IPC
9. Final Order :
Acquitted u/s 420 IPC
Argued by:
Dr. Prayag Dutt Pandey, Ld. APP for the State assisted by Mr. B.K. Mishra, ld. counsel for complainant Mr. Manish Kumar Pratihast, Ld. counsel for the accused.
Cr. Case No. 87821/2016 State v. Sachin Suri Page 1 of 26BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. The prosecution version as unfolded from the chargesheet is that between 02.11.2020 to 30.05.2011 the accused, who was entrusted with the responsibility to deposit the cash belonging to NHI in its account at Oriental Bank of Commerce, Nehru Place branch, committed criminal breach of trust with respect to the said cash totalling to amount of Rs. 55,00,000/- (fifty-five lakh).
2. As such, it is alleged that the accused committed the offences punishable under sections 420/468/471/408 of the Indian Penal Code, 1860 (hereinafter, "IPC") for which FIR No. 221/2011 was registered at Police Station Amar Colony, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED-
3. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and arrested the accused and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial vide order dated 23.08.2011.
4. On his appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Section 408/420 IPC was Cr. Case No. 87821/2016 State v. Sachin Suri Page 2 of 26 framed against the accused. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
5. During the trial, the prosecution examined 11 witnesses to prove its case against the accused. All the witnesses relevant to the case have been examined and cross-examined.
6. HC Rambir Singh (PW-1) deposed that on 08.06.2011, he was marked a complaint for registration of FIR by order of SHO. On the basis of said complaint, he registered the present FIR. The copy of the same is Ex.PW1/A. He proved endorsement on the complaint Ex.PW1/B. He had brought the original FIR (OSR). Cross examination of PW-1 was nil despite opportunity.
7. SK Shally (PW-2) deposed that at that time accused Sachin Suri was working with him as an accountant under his supervision. On 07.06.2011, he along with accused Sachin Suri went to Oriental Bank of Commerce, Nehru Place Branch. They deposited cash of Rs. 11 lakhs of the above said Institute. Thereafter they went to meet with two loan officers of the Oriental Bank of Commerce and met with one gentleman and one lady officer. At that time, NHI had borrowed term loan from the above said bank. The instalment of the said term loan used to be deducted in the first week of the month from the account of the institute. There, Sachin Suri discussed with the lady loan officer regarding not deducting the Cr. Case No. 87821/2016 State v. Sachin Suri Page 3 of 26 amount from the above said current account of the Institute in respect to the term loan. On hearing this, PW-2 become astonished as to why Sachin Suri had offered not deducting the amount from the account of the Institute. He enquired from the lady loan officer as to why Sachin Suri had instructed her and she replied that there was no sufficient balance in the account of the Institute. He checked the balance of the Institute on the screen of the lady officer and found there was approximately Rs. 5,00,000/-. Thereafter he found Sachin was not available and he started searching him. He made telephonic call on the mobile phone of the Sachin but he found it switched off. He returned back to office and took the bank statement of the May month of the Institute. He went to the Oriental Bank of Commerce, Nehru Place where he made an enquiry regarding statement of account and found that in May month, there was difference of Rs. 55,00,000. Thereafter he requested to the bank to supply the account statement of the institute from August 2010 to May 2011. He returned back to the office along with the above said statements and instructed to his Accountant Ms. Minakshi Maudgil to reconcile the account statement of the Institute. She informed him that there were eleven entries of the account statement where differences were found in respect of the 55,00,000/-. He went to the bank with counterfoils of cash deposited and made enquiry regarding depositing amount and amount mentioned in the counter receipt file. He deposed that the work of depositing of cash in the account of the Institute was carried out by the accused during his tenure. He proved his complaint Ex. PW2/A. He deposed that accused has misappropriated total 55,00,000/- amount of the Cr. Case No. 87821/2016 State v. Sachin Suri Page 4 of 26 Institute. Thereafter, accused Sachin Suri was arrested on 10.06.2011 vide arrest memo Ex. PW2/B. His personal search was also conducted vide memo Ex.PW2/C. IO seized the hard disk of the office computer on which accused Sachin Suri was working. Seizure memo is Ex. PW2/D. He also handed over the depositing slips of dated 30.05.2011, 04.05.2011, 15.04.2011, 04.04.2011, 10.03.2011, 13.01.2023 & 09.12.2010 total 07 slips of account of the Institute. Police also had seized the same by seizure memo Ex. PW2/E. The slips are Ex. P1 to P7 collectively. PW-2 found differences in the depositing money mentioned in the slip and actual depositing on the same date. He along with IO and accused went to the house of the accused i.e., HN C-10/181 2 floor, Sec-5 Rohni regarding the search. IO prepared search memo EX.PW2/F. They also visited house of the mother of the accused i.e., H/N A-5/157B, Paschim Vihar. IO prepared home search memo Ex. PW2/G our institute also provide internal audit report and other relevant papers as sought by the IO.
7.1 PW-2 was cross examined at length on several dates. PW-2 did not remember whether any person named Prakash was working as peon. He stated that the amount if due to the patient after finalization of the money was paid to the patients and their relative as per rules of the hospital. He stated that every cash deposit was being entered in the tally software by Mr. Sachin Suri. PW2 denied the suggestion that the unclaimed amount of the patients were withdrawn by forging the signatures of the authorized signatories and was misused. PW-2 did not remember whether any NHI staff Cr. Case No. 87821/2016 State v. Sachin Suri Page 5 of 26 was terminated because of having knowledge of aforesaid fraud. No complaint was made against accused Sachin Suri while he was working under PW-2. He stated that the name of the lady loan officer was Anita however, he did not remember the name of gent loan officer. He came to know about this incident at about 11:00 AM to 11:15 AM. He deposed that about 4-5 persons used to work in the same room-where accused Sachin Suri used to work in year 2011. He denied all contrary suggestions put forth by the ld. counsel for the accused.
8. Divesh Kumar (PW-3) proved the bank statements for the months of December 2010, January 2011, March 2011, April 2011 and May 2011. The statements of December 2010 of the abovesaid account is Ex. PW3/A (10 pages). The statements of January 2011 of the abovesaid account is Ex PW3/B (5 pages). The statements of March 2011 of the abovesaid account is Ex PW3/C (9 pages). The statements of April 2011 of the abovesaid account is Ex PW3/D (7 pages). The statements of May 2011 of the abovesaid account is Ex PW3/E (10 pages). He stated that the computer/ system generated was kept under his supervision and without the authority nobody has access to system from which the said documents were taken via using computer. PW-3 was cross examined by the Ld. Counsel for the accused.
9. D.K. Kapoor/Retd. Bank Manager (PW-4) stated that in the year of 2011, he was Bank Manager of Oriental Bank of Commerce at Nehru Place, New Delhi. He provided the copy of original cash slip of account no.261311 to IO of the case. The said Cr. Case No. 87821/2016 State v. Sachin Suri Page 6 of 26 document is Ex.PW4/A. PW4 was cross examined by the ld. Counsel for the accused.
10. Wing Commander B. Jena (PW-5) deposed that on 08.06.2011, he was posted as Administrator in National Heart Institute. He handed over the following documents: biodata of accused Sachin Suri Ex PW-5/C (colly) (OSR), work scope/job description of the accused Ex PW-5/D (OSR), pay in slips, bank statement submitted by accused Sachin Suri from November 2010 to June 2011, attendance sheet Ex PW-5/E, SB account number and appointment letter to the IO. He also handed over the internal audit report received from M/s Rajnish and Associates which is Mark X-
1. He also issued memo to Sachin Suri, who was absconding from his duties on 08.06.2011. Photocopy of the same is Mark Y. The salary slip of the accused is Mark A-4.
10.1 PW-5 was cross-examined by ld. counsel for the accused however he denied all suggestions and his examination revealed that there were 7 deposit slips on record.
11. Inspector Vijay Gehlawat (PW-6) deposed that on 10.06.2011 he was posted as Inspector at Cyber Cell, Malviya Nagar. On that day, he was called by Inspector Manoj Kumar and went to National Hear Institute, where he prepared image copy of the Hard Disk of computer of the accused Sachin Suri bearing no. 4JV3FSD8, Model No. ST380011A and same was sealed by Inspector Manoj vide seal of MK and seized it vide seizure memo Ex PW-2/D. He correctly identified the hard disc which is Ex P-X. He was cross-examined on behalf of the accused however nothing fatal to the prosecution version was revealed therefrom.
Cr. Case No. 87821/2016 State v. Sachin Suri Page 7 of 2612. Inspector Manoj Kumar (PW-7) is the IO. He deposed as to the entire investigation conducted by him. He had arrested the accused at the instance of the complainant from Punjabi Bagh. He also sent the case property and specimen handwriting of accused to FSL Rohini. During investigation he recorded the statement of the witnesses u/s 161 CrPC. After completion of the investigation, prepared the chargesheet and filed the same before the court. He correctly identified the hard disk.
12.1 PW-7 was cross-examined by the Ld. Defence counsel at length on several dates. He admitted therein that this complaint has been filed against Sachin Suri by name. No other person was found involved in the present case except accused Sachin Suri. PW- 7 denied the suggestion that accused Sachin Suri has been falsely implicated by the complainant and therefore the complainant has mentioned in the complaint "possibly others". PW7 denied the suggestion that accused was arrested in PS after calling him. PW-7 denied the suggestion that he was forced to sign several blank papers, which was later on converted into several memos. He stated that nobody from the office was present where accused used to sit when he visited the office on 10.06.2011 in the noon time alongwith accused and HC Nem Sahay. He admitted that when they visited the office of the accused then it was office hour. PW7 denied the suggestion that he had not visited the house of the accused therefore he do not remember the names of his family members. PW7 denied the suggestion that all the proceedings were conducted while sitting in the PS. He admitted that had not searched the e-mail account of the accused. However he stated that the e-mail address of the Cr. Case No. 87821/2016 State v. Sachin Suri Page 8 of 26 accused was available/ printed on the bank account statement of NHI, which was submitted by the accused in NHI which is Ex.PW 2/D-1 (Colly) and same is available on the footer of the statement. He denied all contrary suggestions put to him on behalf of the accused.
13. Anurag Sharma, Assistant Director, FSL (PW-8) examined the questioned documents and submitted his opinion in the form of a report (Ex. PW8/A). He was cross-examined by ld. defence counsel. He opined that it could not be said that the handwriting on the documents was of the accused.
14. HC Nemi Sahay (PW-9) confirmed accompanying the IO and deposed about the investigation as well as seizing and sending of hard disk. He was cross examined by Ld. Defence counsel and he denied all contrary suggestions.
15. Sh. Sudhir Saxena (PW-10) is a bank witness who proved certified copy of account statement of account no. 02171010011290 in the name of National Heart Institute, pertaining to the period 01.09.2010 to 10.06.2011 (running into 116 pages) from the database. The account statement is Ex. PW10/A. He has also brought the certificate u/s 65B Indian Evidence Act w.r.t the aforesaid statement (Ex. PW10/B). PW-10 was cross examined by the Ld. Counsel wherein he stated that he has no personal knowledge of the present case.
16. Dr. Virender Singh (PW-11) is another witness from FSL. He proved his report regarding the hard disk (Ex. PW11/A). He confirmed that the hard disk was in sealed condition when it was Cr. Case No. 87821/2016 State v. Sachin Suri Page 9 of 26 handed over to him. He was cross examined by the Ld. Counsel for the accused.
STATEMENT OF ACCUSED UNDER SECTION 313 CRPC
17. To enable the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313(1)(b) CrPC. In reply, the accused denied all incriminating evidence and stated that he has not committed any offence and it is a conspiracy against him. He stated that the witnesses are interested witnesses. He also stated that he was working in the account department and came to know about the fudging of account by the NHI officials and wrongly misappropriating the amounts of patients. They were not returning the amount to the clients and were misusing the amount for their personal use. He explained that he has been falsely implicated for this reason.
DEFENCE EVIDENCE
18. The accused examined two witnesses in defence- Sh. Mahender Singh and himself.
19. Mahender Singh (DW-1) deposed that he is working as Accountant in National Heart Institute since 1992 continuously. He knew accused Sachin Suri as he was working with them. In the year 2011 he was in billing department. He stated that the person who used to sit at the billing counter had the duty to submit the cash to accused Sachin Suri. Mr. Umakant and Mr. Rawat used to sit at the billing counter at that time. When he used to sit at the billing counter, there was no difference in cash received and submission to Cr. Case No. 87821/2016 State v. Sachin Suri Page 10 of 26 accused Sachin Suri. He did not know Mr. Prakash. He did not know who used to accompany Mr. Sachin Suri whenever he visited the bank to deposit the cash. He never accompanied Sachin Suri. DW-1 was cross examined by the Ld. Counsel for the accused as he was not supporting the defence however, he still did not support the defence version.
19.1 DW-1 was also cross examined by Ld. APP for the State wherein he admitted that accused had the habit of betting in the cricket matches at the time of incident. He came to know that after the incident that accused had sold his house, vehicle and jewellery of his wife due to loss in betting.
20. Sachin Suri (DW-2) entered the witness box and deposed that he was an accountant in NHI and his work was to make cheque for suppliers and depositing cash when his turn came as three persons i.e., he, Umakant and Mahender used to deposit cash. They used to be accompanied by peon Prakash Sharma. He also deposed as to the procedure for opening lock and depositing of cash and counter slip. He also stated that on 06.06.2011 evening, he planned to go to Mata Vaishno Devi with his friend Sanjay Mehta. On 07.06.2011, as the key of the locker was with him, he went to the office and accompanied the complainant to the bank in his car for depositing Rs. 11 lakh. He requested the complainant for leave and went to ISBT for going to Vaishno Devi. He went to Vaishno Devi with his friend and returned on 09.06.2011. He stated that on 08.06.2011 he made a call to Virender Bisht regarding his work. He stated that he was called to Punjabi Bagh by SK Shailly and was Cr. Case No. 87821/2016 State v. Sachin Suri Page 11 of 26 apprehended there to his surprise. He stated that he was falsely implicated. He also stated the DW-1 has been won over by the management as he is still working there.
20.1 DW-2 was cross-examined by ld. APP for State. He denied all contrary suggestions. He admitted that his email id was [email protected]. He was confronted with Ex. PW2/D1 to which he stated that the said document were not given by him to anyone. He also stated that bank officials had not sent bank statement on his email. He stated he had no knowledge regarding alteration/difference in amount deposited.
21. Final arguments were advanced at length on behalf of both the sides and written submissions were also filed by ld. counsel for complainant and ld. counsel for accused.
22. I have heard Ld. APP for State and Ld. Counsel for the accused and carefully perused the record of the case as well as the written submissions.
ARGUMENTS
23. Ld. APP for the State assisted by ld. counsel for the complainant argued that all PWs have corroborated themselves in all material particulars. He contended that PW-2 and PW-5 proved the ingredients of the offence and the manner in which the same was committed. PW-3, PW-4 and PW-10 are bank employees who proved the necessary documentary evidence. PW-1, PW-6, PW-7 and PW-9 are the police witnesses who also supported the Cr. Case No. 87821/2016 State v. Sachin Suri Page 12 of 26 prosecution case. PW-8 and PW-10 are expert witnesses from FSL whose testimony also corroborated the prosecution version. Ld. APP for State argued that the accused has admitted that he was employee of NHI and the said fact is also proved by PW5 therefore first ingredient of the offence is established. He further contended that the accused used to make slips of different amount and deposited lesser amount in the bank and thereby committed the alleged offence. He also argued that the documentary evidence that is Ex. PW10/A when compared with Ex. PW2/D1 shows the offence and the latter has the email id of the accused in the footnote. Though accused/DW2 examined himself as a witness, DW1 did not support the version of the defence and the accused dropped the remaining defence witnesses himself therefore he was not able to substantiate his defence as per ld. APP. It is submitted that the testimonies of all the witnesses have remained consistent and the accused himself could not lead any defence to rebut the allegations, therefore, the accused deserves to be convicted for the offences for which he is charged.
24. Ld. counsel for the complainant placed reliance on Balu Sudam Khalde and Anr. v. State of Maharashtra (Crl A 1910/2010) to stress that there is no straitjacket formula for appreciation of the ocular evidence and that minor discrepancies on trivial matters would not permit rejection of evidence as a whole. Reference was also made to Ravasaheb @ Ravasahebgouda etc. v. State of Karnataka however the said judgment is not relevant to the facts and circumstances of the present case.
Cr. Case No. 87821/2016 State v. Sachin Suri Page 13 of 2625. On the other hand, Ld. Defence counsel vehemently argued at length that prosecution has failed to prove the case against the accused beyond all reasonable doubts. He contended that the relevant material witnesses (bank officials to prove that the accused only used to go to the bank to deposit cash, other staff members who worked with the accused, loan official in the bank) have not been examined and the chain of circumstantial evidence is broken. Reliance was placed on Umesh Tukaram Padwal & Anr v. State of Maharashtra 2019 AIR SC 4279 in this regard. He argued that there is delay in lodging the FIR; the complainant has reason to falsely implicate the accused; no conclusive proof was given by scientific expert that the accused is liable; nothing was recovered from the accused and the prosecution witnesses have levelled false allegations. He directed the court's attention to various documentary evidence and specifically to the letter of the bank dated 04.08.2011 which does not state that the account statement was sent to the accused on his email. Ld. counsel for the accused relied upon Anwar Ali v. State of Himanchal Pradesh (Appeal no. 1121/2016 decided on 25.09.2020) to stress that material witnesses have not been examined in the present case. It was submitted that in view of these arguments, accused should be given the benefit of doubt and should be acquitted of the charges framed upon him.
INGREDIENTS OF THE OFFENCE AND REASONING
26. Section 405 IPC defines criminal breach of trust and states that " whoever, being in any manner entrusted with property, Cr. Case No. 87821/2016 State v. Sachin Suri Page 14 of 26 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 wilfully suffers any other person so to do, commits, criminal breach of trust".
Section 408 IPC punishes whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property.
27. The ingredients of offence under section 408 IPC are as follows:
The accused must be a clerk or servant;
The accused must be entrusted with property/dominion over property in such capacity;
The accused must dishonestly misappropriate/convert the property to his own use or dishonestly use/dispose of the property in violation of any direction of law or legal contract or wilfully suffer any other person to do so.
28. The existence of an employment relationship and the entrustment of property due to that relationship is sine qua non of the offence of criminal breach of trust under section 408 IPC. In the instant case, there is no doubt as to the existence of such relationship as the accused was admittedly employed at NHI as an accountant and he deposed as to the same in his testimony as well. The fact that the duties of the accused also entailed depositing cash Cr. Case No. 87821/2016 State v. Sachin Suri Page 15 of 26 in the bank account of NHI is also not disputed though it is stated by the accused that the said duty was performed turn-by-turn by three persons i.e., Mahender Singh and Uma Kant Sharma and the accused.
29. Therefore, the only question to be answered is whether the accused herein committed criminal breach of trust in such capacity. After perusing the entire material, this court finds that the prosecution has proved the offence beyond reasonable doubt against the accused.
30. It is the case of the prosecution that between 02.11.2020 to 30.05.2011 the accused, who was entrusted with the responsibility to deposit the cash belonging to NHI in its account at Oriental Bank of Commerce, Nehru Place branch, committed criminal breach of trust with respect to the said cash totalling to amount of Rs. 55,00,000/- (fifty-five lakh). There is no witness to the actual misappropriation, therefore the case is based on circumstantial and scientific evidence. In cases founded on circumstantial evidences, the inference of guilt of accused must be cogently established. The following are five golden principles which must be considered for the adjudication of guilt of accused in cases based on circumstantial evidences, as enunciated by Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, Cr. Case No. 87821/2016 State v. Sachin Suri Page 16 of 26 (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
31. PW-2 threw light on the modus operandi adopted by the accused and proved his complaint detailing the transactions in respect of which misappropriation of property was done. It can be seen from his testimony that the work of depositing cash in the bank was carried out by the accused alone (though sometimes peon used to accompany for assistance). Even DW-1 called by the accused as a defence witness stated that it was the accused who used to deposit the cash. The facts as alleged were unearthed after PW-2 and the accused went to the bank to deposit the Institute's cash on 07.06.2011. NHI had borrowed a term loan from the bank the instalment of which used to be deducted in the first week of the month from the Institute's account. After depositing the cash, they went to meet two loan officials where the accused discussed with the lady official regarding not deducting the amount from the said account in respect of the term loan. PW-2 deposed that upon enquiry from the official he found that the account was not having sufficient balance. Thereafter, he could not find the accused and started searching for him. The accused also remained unreachable on his phone as the same was switched off. Then, PW-2 compared the bank statement of the month of May with the one available with him at the office and found a difference of Rs. 55,00,000/- (marked at points X1 to X11 in Ex. P8(colly)). Pursuant to obtaining bank account statement from August 2010 to May 2011, he instructed Cr. Case No. 87821/2016 State v. Sachin Suri Page 17 of 26 accountant Ms. Minakshi Moudgil to reconcile the account statement upon which eleven entries were found to be different in respect of the aforesaid amount. PW-2 also deposed that he went to the bank with the counterfoils of receipt of cash deposited and was informed that all the e-mails regarding the deposition of amount in NHI's account were received on e-mail address of the accused. He deposed that the accused made alterations in the same on the office computer allotted to him and submitted false account statement. PW2 also handed over cash depositing slips (total seven) to the police. The seizure memo (Ex. PW2/E) was proved by PW-2. He deposed as to there being a difference between the sum mentioned on these slips and the actual sum deposited in the bank.
32. In his cross-examination, PW-2 was confronted with Ex. 2/A where it is not mentioned that he met two loan officials, one gent and one lady as deposed by him in evidence. However, it is noteworthy that FIR is merely first information report and it is settled law that it is not meant to be an encyclopaedia. The omission of mentioning the male loan official along with the lady loan official in the complaint is not a fatal one.
33. PW-5 deposed that inter alia, he handed over the account statement given by the accused from November 2010 to June 2011 to the IO. PW-2 was also questioned regarding the account statement during his cross-examination. He denied the contrary suggestion that account statement was not received by the accused on his email and stated that the hard copy of the same was submitted to the Senior Accountant by the accused. He also stated that the said altered copy was on record which was exhibited as Ex.
Cr. Case No. 87821/2016 State v. Sachin Suri Page 18 of 26PW2/D1(colly) during his cross-examination. Though the accused denied receiving the statement of account on his email, he has not been able to question the authenticity of the said document and not even a suggestion touching its authenticity has been given though during final arguments, such questions were raised by ld. counsel for the accused. On the other hand, the prosecution summoned concerned bank witness and placed on record the certified copy of account statement of NHI for the relevant period. A comparison of the two statements shows difference in amount of cash deposited on the dates mentioned in the complaint.
34. FSL result (Ex. PW-11/A) was obtained qua the hard disk of the office computer on which the accused used to work. PW- 2 proved that the IO seized the said hard disk, the seizure memo being Ex. PW2/D. IO/PW-7 confirmed seizing the CPU from the computer with the help of Inspector Vijay Gunawat from Cyber Cell and sending it to FSL. PW-9, who accompanied the IO also supported the prosecution version. Inspector Vijay Gunawat/PW-6 also confirmed that he went to NHI where he prepared image copy of the hard disk of the said computer and the same was sealed and seized by PW-7. PW-6, PW-7 and PW-9 identified this hard disk Ex. P-X in court. Thus, there being no doubt as to the manner in which it was seized, it is pertinent to examine the FSL result pertaining to the said hard disk from which PW-11 retrieved 45 sheets worth data. Perusal of the retrieved data shows that the statement of account containing the altered amounts of cash deposited on 4th and 30th May 2011, i.e., 16,00,000/- on each date as opposed to Rs. 10,00,000/- and Rs. 11,00,000/- respectively.
Cr. Case No. 87821/2016 State v. Sachin Suri Page 19 of 2635. Another aspect pointing towards misappropriation of the cash is the mismatch in the counterfoils of the cash deposited in the bank and the pay-in-slips for the corresponding dates which were proved by PW-4 (bank witness). There is no cross-examination of the witness on this aspect except to the effect that out of 11 counterfoils, only 7 were given to the IO and suggestion that the same were not in the handwriting of the accused. Though the FSL result qua the same does not throw any light on the handwriting, the accused has not been charged for the offence of forgery and it has already been established that it was the accused who used to deposit the cash in the bank.
36. Ld. counsel for the accused argued that there is a delay in lodging the FIR thus it is a well-planned and cleverly drafted complaint. PW-2 denied the suggestion that the complaint was filed under a planned conspiracy after 14-15 hours. It can be seen from the prosecution evidence that the incident/discovery started unfolding around 11:00-11:15 am on 07.06.2011 while the FIR was registered at 1:20 on 08.06.2011. The complainant has deposed elaborately as to the steps taken by him after the accused left the bank on the fateful day to reconcile the account. The said process would certainly take some time; therefore, the delay does not appear to be considerable or unexplained.
37. It was contended on behalf of the accused that the reason for false implication of the accused is that he came to know about the fudging of account by NHI officials and wrong misappropriation of amount of the patients. The defence has not Cr. Case No. 87821/2016 State v. Sachin Suri Page 20 of 26 been able to bring the said fraud on record by way of any evidence other than mere suggestion to PW-2 which was denied.
38. The accused called Mahender Singh (DW-1) as a defence witness. The said witness is an accountant in NHI however he did not support the version of the defence and was cross- examined by ld. counsel for the accused. DW-1 stated that he, Umakant and Rawat used to sit at the billing counter and had the duty to submit the cash to the accused. He was also cross-examined by ld. APP for State wherein he admitted that the accused was in habit of betting in cricket matches at the time of the incident and that DW-1 came to know that after the incident the accused sold his house, vehicle and wife's jewellery due to loss in betting. He confirmed that he joined the investigation and IO recorded his statement under section 161 CrPC.
39. This brings us to the motive behind why the accused would commit the alleged offence. It was contended by the ld. APP and ld. counsel for the complainant that the accused had motive to misappropriate the amount as he had a habit of betting in cricket and must have been in need of money.
Section 8 of the Indian Evidence Act stipulates as follows:
"Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if Cr. Case No. 87821/2016 State v. Sachin Suri Page 21 of 26 such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto."
40. The defence witness did not support the accused and rather testified as to the betting habit of the accused, which went unrebutted. Thus, the said fact is also relevant in deciding the guilt of the accused. It was argued by ld. counsel for the accused that nothing was recovered from the accused. However, it is established that only the accused used to deposit the cash and there is difference in the amounts shown in the statement of account obtained from bank and the one available at NHI. The motive of the accused is also established. Therefore, the absence of recovery of money is not fatal to the prosecution case.
41. Similarly, the conduct of the accused also has a bearing on the decision of the case. It has emerged from the testimony of PW-2 that when he discovered in the presence of the accused on 07.06.2011 that NHI's account did not have sufficient balance, the accused fled from the bank and PW-2 could not find or contact him on his phone. PW5 stated that he had issued a memo to the accused who was absconding from his duties on 08.06.2011 photocopy of which is Mark Y. PW-2 also proved the arrest of the accused from Punjabi Bagh on 10.06.2011. PW-7/IO also confirmed the arrest of the accused on 10.06.2011 from Punjabi Bagh at the instance of the complainant. The defence claimed that the accused had gone to Vaishno Devi shrine after the incident on 07.06.2011 after orally informing the complainant, however the accused failed to prove the aforesaid fact by way of any evidence other than his own testimony. He could have called the person he went with as a defence witness Cr. Case No. 87821/2016 State v. Sachin Suri Page 22 of 26 but did not do so. Similarly, he could have filed evidence of his journey, however this was also not done. The aforesaid fact being within his exclusive knowledge, the onus to prove the same was upon him as per section 106 of the Indian Evidence Act.
41. It was urged by ld. counsel for the accused that no bank official was examined to show that only the accused was going to the bank for depositing cash. However, the said fact having been established by PW-2 and DW-1, lack of examination of bank witness does not have a bearing, hence the contention cannot be accepted. It was also contended that the letter by the bank dated 04.08.2011 does not mention that the account statement was sent by email to the accused and that no customer request for receiving such statement by email is there on record. While the facts mentioned by the ld. counsel are correct, the letter also states that such verbal request may have been honoured the account being old and prestigious. Thus, there does not appear to be a mandatory requirement of a written request to obtain the statement on email and absence thereof is not fatal to the prosecution case.
42. It was vehemently argued on behalf of the accused that no proof has been given that the statement of account was sent to the email id of the accused by the bank nor any bank official was examined in this regard. Furthermore, only the statement for the month of February shows the email id of the accused whereas there is no reported mismatch of amounts in the said month. However, it cannot be lost sight of that the data retrieved by FSL from the computer used by the accused also shows altered statement of account. This, in conjunction with the rest of the prosecution Cr. Case No. 87821/2016 State v. Sachin Suri Page 23 of 26 evidence points towards the guilt of the accused, thus the aforesaid argument is rejected.
43. Another defence raised by the accused is that the chain of circumstantial evidence is not complete in the present case. He relied upon Umesh Tukaram Padwal & Anr v. State of Maharashtra 2019 AIR SC 4279 to urge that the circumstances relied upon by the prosecution should be proved beyond reasonable doubt and should form a complete chain so as to not leave any doubt as to the complicity of the accused. He also contended that the chain is not complete for the following reasons (other than the reasons already discussed above): (a) There are differences of 11 entries as per prosecution however only 7 pay in slips were produced; (b) The complainant states that they found a difference of Rs. 55 lakh whereas the internal audit report mentions fraud of Rs. 57.17 lakh. This contention does not hold merit because not producing 4 pay-in slips does not negate the differences in the remaining 7 slips and internal audit report which was prepared after the lodging of the complaint does not absolve the accused of his liability, rather shows a higher amount of misappropriation.
44. Ld. defence counsel also argued that the loan official in the bank with whom inquiries were made on 07.06.2011 was not examined by the prosecution and therefore the prosecution version is not proved. The fact of going to the bank on 07.06.2011 and inquiry with the said loan official was proved by PW-2. There is no reason to disbelieve the testimony of PW-2 coupled with the documentary evidence on record. The accused did not refute the same in his statement either. Thus, this contention is rejected.
Cr. Case No. 87821/2016 State v. Sachin Suri Page 24 of 2645. So far as the offence under section 420 IPC is concerned, it is apposite to mention the decision of Hon'ble Delhi High Court in Wolfgang Reim v. State, 2012 SCC OnLine Del 3341 which held that a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction. It was held that:
"34. Further, a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction because for the offence of cheating, it is a prerequisite that dishonest intention must exist at the inception of any transaction whereas in case of criminal breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property as per law, therefore, for commission of criminal breach of trust, the dishonest intention comes later, i.e., after obtaining dominion over the property by the accused person whereas for commission of cheating, dishonest intention of the accused has to be present at the inception of the transaction."
46. The said position of law was also laid down in Mahindra and Mahindra Financial Services Ltd. v. Delta Classic (P.) Ltd., 2009 SCC OnLine Gau 105. Therefore, in light of the above, the prosecution has failed to prove the offence under section 420 IPC against the accused.
47. Thus, in the totality of facts and circumstances and the evidence led by the prosecution witnesses and on the basis of entire material available on record, I am of the considered opinion that the prosecution has proved the offence u/s 408 IPC against the accused beyond reasonable doubt.
Cr. Case No. 87821/2016 State v. Sachin Suri Page 25 of 26CONCLUSION -
48. Resultantly, accused Sachin Suri is CONVICTED for the offence under section 408 IPC and ACQUITTED for the offence under section 420 IPC.
49. Let the convict be heard separately on sentence.
50. Copy of the judgment be provided to the convict, free of cost.
Pronounced in open court on 27.07.2023 This judgment comprises of 26 signed pages.
Digitally
NEHA signed by
BARUPAL NEHA
BARUPAL
(NEHA BARUPAL)
Metropolitan Magistrate - 12
South-East District, Saket Courts,
New Delhi/27.07.2023
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