Delhi District Court
The Present Case Emanated From The ... vs Unknown on 2 December, 2010
IN THE COURT OF SH. NAVEEN GUPTA, MM,
ROHINI COURTS, DELHI
1. FIR No. : 310/94
2. Date of Offence : 07.05.94
3. Name of the complainant : S. Kowshal
4. Name, parentage and Address
of the accused : 1. Girja Shankar @ G.S.
Sharma S/o Sh. Deepchand,
R/o Village Karala, Delhi.
2. Bharti Sharma W/o Girja
Shankar,
R/o Village Karala, Delhi.
3. Sandeep Kumar S/o
Inderpal, (PO)
R/o N 329, Mangolpuri,
Delhi.
4. Prakash Chand S/o Sh.
Santram,
R/o X29, Budh Vihar,
PhaseI, Delhi.
FIR No. 310/94
PS: Sultanpuri
State v. Girja Shankar etc. 1/24
5. Offence complained of : Section 419/420/468/471/
120B/511/34 of IPC
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving order : 16.11.2010
8. Sentence or final order : Accused no. 1, 2 & 4 are
acquitted.
9. Date of order : 02.12.2010
JUDGMENT
1. The present case emanated from the complaint of Branch Manager, State Bank of Patiala, Karala Branch, Delhi, that on 07.05.94, a cheque bearing no. 894038 dated 02.05.94 for Rs.3,08,000/ was presented to them for payment in clearing by Punjab National Bank, NIT, Faridabad; on scrutiny of the cheque, it was found that the instrument had been forged and it was made to appear like pay order/bearer cheque by affixing bogus rubber stamp; the instrument bore bogus signatures made out to be on behalf of the bank; thus, an attempt was made to defraud the bank to the tune of Rs.3,08,000/; further, it was discovered that the cheque which was forged was from the cheque book issued to one G.S. Sharma in his FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 2/24 current account which was a joint account with Bharti Sharma. On the said complaint, present case was registered.
2. After investigation, chargesheet was filed against the accused persons. The copies of chargesheet were supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused persons under Section 420/511/467/471/120B of the Indian Penal Code (hereinafter referred as 'IPC') to which they pleaded not guilty and claimed trial.
3. During trial, due to nonappearance of accused Sandeep, he was declared proclaimed offender on 09.09.04. Hence, by this judgment, the culpability of accused Sandeep has not been decided.
4. The prosecution examined eight witnesses. PW1 is S.K. Kaushal, Complainant; PW2 is Ct. Manohar Singh, constable involved in investigation; PW3 is Ct. Satpal, constable involved in investigation; PW4 is ASI Devender, Duty Officer; PW5 is SI Mahender Singh, 2nd Investigating Officer; PW6 is SI Balbir FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 3/24 Singh, 1st Investigating Officer; PW7 is ASI Dayanand, HC involved in investigation; PW8 is Jai Singh, independent witness joined in the investigation.
5. Now, PW1 deposed on the similar lines as submitted by him in his complaint Ex. PW1/A. He identified the impugned cheque Ex. PW1/A. PW6 submitted that on 15.06.94, on receipt of complaint Ex.PW1/A, he prepared rukka Ex.PW6/A and got the case registered; he along with Ct. Om Prakash reached at the State Bank of Patiala, Karala, but it was found closed at that time.Thereafter, on 16.06.94, he along with other police officials went to the above said Bank and met the Bank Manager, PW1. Thereafter, they went to the house of accused Girja where his servant Ashwani met them; they joined him [servant] in investiagtion; on his identification, accused Sandeep was apprehended; his disclosure statement Ex.PW6/B was recorded; his personal search was conducted vide memo Ex.PW6/C; at instance of accused Sandeep, accused Prakash was arrested; his disclosure statement Ex. PW6/D was recorded FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 4/24 and personal search was conducted vide memo Ex.PW6/E. Thereafter, specimen handwriting of accused Prakash and Sandeep Ex.PW6/F and Ex.PW6/G were taken. On 25.06.94, accused Girja Shanker was arrested; his disclosure statement Ex.PW6/H was recorded and his personal search was effected vide memo Ex.PW6/I. Thereafter, his specimen handwriting Ex.PW6/J was taken. During crossexamination, he submitted that he did not try to trace out the company HiTec Engineers in whose name the alleged banker's cheque was drawn. He admitted that Ex. PW6/K, an application dated 17.06.94, was submitted by him in the Court. He further submitted that the Manager did not hand over the original cheque to him. The specimen signatures and hand writing of accused Prakash were taken by him during investigation at police station and no permission from any court was taken for the same. He further submitted that no stamp or seal was recovered from any of the accused persons. He did not send the signatures to CFSL.
PW7 submitted on the similar lines as deposed by PW6. PW8 submitted that on 25.06.94, he had gone to PS Sultanpuri for his FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 5/24 personal work; when he reached there, SI Balbir [PW6] got his signatures on some papers; he did not have any knowledge of the contents of the matter for which he had received the summons. During crossexamination by Ld. APP, he submitted that Ex. PW6/I, Ex.PW6/B, Ex. PW6/H and Ex. PW6/D were blank when SI Balbir Singh got signatures from him. He denied the suggestion that accused persons confessed their guilt in his presence. PW4 tendered FIR copy of which is Ex. PW4/A and endorsement on rukka is Ex. PW4/B. PW5 submitted that on 07.09.94, he received investigation of this case; on 19.11.94, he along with Ct. Manohar Singh proceeded to the house of accused Bharti and arrested her after interrogation; he obtained specimen handwriting of accused Bharti Ex. PW2/A and Ex. PW2/B; she was released on bail vide bail bond Ex. PW5/A. He further submitted that on 19.01.95, he along with Ct. Satpal went to State Bank of Patiala and contacted the Branch Manager who produced the cheque and one letter Ex. PW1/A and Mark A respectively which were taken in possession vide memo Ex. PW3/A. During crossexamination by Ld. Counsel of accused Girja and Bharti, he submitted that at the FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 6/24 time when he visited the house of the accused Bharti, her children, one or two other ladies and other relatives were present. He submitted that he had taken the signatures of accused Bharti on the sheets of specimen handwriting Ex. PW2/A and Ex.PW2/B. He did not remember whether he had put any application before the Court for obtaining specimen handwriting of accused Bharti. He submitted that during the period of five months i.e. the period for which he remained investigating officer, he never tried to contact the company HiTec Engineers. He confirmed that Ex. PW2/A and Ex. PW2/B did not bear the signatures of Bharti. PW2 submitted on the similar lines as deposed by PW5 regarding proceedings of dated 19.11.94. During crossexamination by Ld. Counsel for accused Girja and Bharti, he submitted that no other family members of accused was available [when the specimen handwriting of accused Bharti was taken]; the lady whose specimen handwriting was taken had signed those documents of handwriting in his presence.
PW3 submitted on the similar lines as deposed by PW5 regarding FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 7/24 proceedings of 19.01.95.
6. After conclusion of prosecution evidence, statement of accused persons were recorded. Accused Girja admitted that he had maintained the impugned account with State Bank of Patiala, Karala Branch, Delhi, and had got a cheque book which contained the impugned cheque issued but he did not enter into any conspiracy; his cheque book was taken away by accused Sandeep having made excuse that he [Girja] had sought the same from his servant Ashwani; later on, he came to know about the alleged forgery when the police interrogated from him about this case.
Accused Bharti submitted on the similar lines as stated by accused Girja regarding issuance of cheque book. She further submitted that she had never gone to the Bank and she had never filled any cheque. She further submitted that Ex. PW2/A and Ex. PW2/B did not bear her handwriting.
Accused Prakash submits that he had no role in the alleged offence.
Further, accused Girja and Bharti opted to lead defence evidence. They examined one witness, DW1, Ashwani Kumar FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 8/24 Sharma.
7. DW1 submitted that he joined accused Girja Shanker as domestic help in his house in the year 1990; Sandeep was having friendly relations with Girja Shanker and used to visit his house; on 27.04.94, Sandeep came to house of Girja Shanker in the morning and after sometime, he left the house along with Girja Shanker; thereafter, at about 12:00 noon, Sandeep came back; he told him Girja asked him to bring cheque book; after 23 days, Sandeep again came to house and handed over said cheque book to him and stated that cheque book remained with him; he kept the same in the drawer of the table from where he had taken the same. During crossexamination by Ld. APP, he submitted that he did not have instructions from Girja Shanker Sharma to hand over the cheque book to Sandeep on 27.04.94. Further, Bharti Sharma was not present at home on the day when he handed over cheque book to Sandeep.
8. I have heard Ld. APP for State and Ld. Counsels for accused. I have perused the record.
FIR No. 310/94
PS: Sultanpuri
State v. Girja Shankar etc. 9/24
9. Now, Ld. Counsel for accused Girja and Bharti argued that the impugned cheque which had been forged as bearer cheque contained account no. of accused Girja and Bharti which meant that if the cheque had been encashed by the bank, the amount would have been credited from the account of the accused persons; the same led to the inference that accused persons had not been involved in the alleged attempt to cheat and forgery since nobody would defraud himself. He, further, contended that moreover, in the above mentioned circumstances, it is clear that the impugned instrument Ex.PW1/A was not capable for encashment from the account of Bank, hence, no allegation qua attempt to cheat the bank could be leveled against accused persons. Further, Investigating Officer had moved an application dated 17.06.94, Ex. PW6/K, wherein he stated that accused Sandeep and Prakash had tried to cheat the bank to the amount of Rs.3,08,000/, while the disclosure statements of accused Sandeep and Prakash recorded on 16.06.94 contained the involvement of accused Girja too; hence, from perusal of the above mentioned documents, malafide of the Investigating Officer towards accused Girja could, easily, be FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 10/24 assumed. Further, investigating agency did not join HiTec Engineers in the investigation which was the vital and necessary link in the detection of involvement of actual persons in the alleged forgery and attempt to cheat. Ld. Defence Counsel, further, contended that the specimen handwriting Ex. PW2/A and Ex. PW2/B was not of accused Bharti; the same could easily be gathered from the testimonies of PW2 and PW5 who were present at the time of obtaining the same. Further, defence witness Ashwani had categorically stated that cheque book had been taken away by accused Sandeep in the absence of accused Girja. Ld. Counsel, lastly, submitted that prosecution had not been able to prove any case against accused Girja and Bharti.
Ld. Counsel for accused Prakash argued that accused Prakash did not deposit the cheque in the Bank. He contended that there was not even a single admissible evidence to the effect that accused Prakash had forged the cheque. Further, nothing had been recovered from the possession of the accused to prove that he was instrumental to the forgery of cheque. Further, the specimen handwriting of Prakash was not taken in presence of any independent witness and moreover, the same had not been taken FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 11/24 with the permission of the Court. There was no evidence available on record qua involvement of accused Prakash in the conspiracy with the other accused persons to commit the alleged offences. He submitted that there was no direct or circumstantial evidence qua involvement of accused Prakash in attempt to cheat or forgery of the cheque. Ld. Counsel relied upon certain precedents in favour of his arguments: Guru Bipin Singh v. Chongtham Manihar Singh, AIR 1997 SC 1448; Ramesh Chand Gupta v. Union of India, 2009 (2) C.C. Cases (HC) 277; M. Durga Prasad v. State of A.P., 2004 Cri. L. J. 242; Mohd. Asadullah v. State, 2003 Cri. L. J. 2355. He, too, submitted that prosecution had miserably failed to prove any case against accused Prakash and other accused persons.
10.Now, in this case, it is admitted fact that the impugned cheque Ex. PW1/A was one of the cheques from the cheque book issued to accused Girja and Bharti in their joint account with State Bank of Patiala, Karala Branch, Delhi.
The prosecution was to prove the following facts:
(a) whether the accused persons had conspired to forge the impugned cheque and consequently, forged the same; if yes, FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 12/24 then which accused persons were involved in the alleged forgery;
(b) which accused persons were instrumental in depositing the impugned cheque with State Bank of Patiala, Karala Branch, and thereby, attempted to cheat the bank.
11.Now, perusal of the impugned instrument Ex. PW1/A reveals that the same had been made payable to HiTec Engineers. Further, the instrument was sent to State Bank of Patiala, Karala Branch, through clearance by Punjab National Bank, NIT, Faridabad. It means that the instrument must have been, initially, deposited by HiTec Engineers in its account maintained with Punjab National Bank for encashment.
In these circumstances, HiTec Engineers would have been the best available evidence for disclosing the facts that who had submitted the impugned instrument to it; whether there had been any liability of any person towards HiTec Engineers and to discharge the same, the impugned instrument had been given to it; or whether Hi Tec Engineers, itself, was also involved in the alleged forgery or attempt to cheat. The above mentioned queries FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 13/24 remained unanswered in the present case.
The investigating agency had not bothered to join HiTec Engineers in the investigation. It had not contacted HiTec Engineers or not even tried to detect whether any such firm or company existed or not. PW6, 1st Investigating Officer, had categorically stated that he did not try to trace out the company namely HiTec Engineers in whose name the alleged banker's cheque had been drawn. Similarly, PW5, 2nd Investigating Officer, too, stated that he never tried to inquire and contact the company HiTec Engineers as he was not having time because of other engagements.
This is very deplorable state of affairs of investigation in which Investigating Officers did not have time to investigate properly into the offence pertaining to forgery and attempt to cheat to the tune of Rs.3,08,000/, i.e. too in the year 1994 when the value of that amount was considerably high.
12.Leaving aside the above mentioned lacuna, the prosecution has forwarded two probable ways of commission of impugned offences without explanation or clarification that how both ways could co FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 14/24 exist or if it is not so, then which way was adopted by accused persons to commit the alleged offence/s.
Through disclosure statements of accused Sandeep, Prakash and Girja, Ex. PW6/B, Ex. PW6/D and Ex. PW6/H respectively, prosecution had conveyed that three accused persons had conspired to forge the cheque and consequently, they acted upon their plan, forged the cheque and deposited the same in HiTec Engineers. But, prosecution had not given any clarification that despite such disclosure of accused persons, why any rubber stamp or any other material which might have been used for forging the impugned cheque was not recovered from the possession or at the instance of accused persons. Further, why specimen handwriting Ex. PW6/F, Ex. PW6/G, Ex. PW6/J, dated 16.06.94 and 25.06.94, of the respective accused persons were not sent to CFSL for analysis to ascertain that who had actually written the text of the cheque and who had signed the cheque in the name of Manager, State Bank of Patiala. Coming back to the first part of the present paragraph; in the said disclosure statements, no involvement of accused Bharti had been shown or perceived.
Now, prosecution case is silent on the aspect that in presence FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 15/24 of the said disclosure statements, what led the investigating agency to take specimen handwriting of accused Bharti when its initial investigation had revealed that accused Girja, Prakash and Sandeep had forged the impugned cheque. By obtaining the specimen handwriting of accused Bharti and subsequent CFSL report Ex. PWX, it had tried to prove that accused Bharti had forged the cheque.
Hence, prosecution had failed to reconcile the two suggested ways of commission of alleged offences.
13.Further, the impugned cheque was seized by the investigating agency vide seizure memo Ex. PW3/A on 19.01.95; while investigating officers, PW6 and PW5, had already taken specimen handwriting, i.e. on 16.06.94, 25.06.94 and 19.11.94, of all the accused persons including accused Bharti by that day. It is beyond comprehension that how could an investigating agency be so lethargic that it did not seize the basic evidence/primary evidence/only documentary evidence for more than 7 months of registration of the case. It is further incomprehensible that how did Investigating Officers take the specimen handwriting of the FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 16/24 accused persons when they could not be able to know about the text of the impugned forged cheque.
Further, the prosecution case is silent whether any inquiry had been made from the concerned officers of the bank about the impugned forgery.
14.At this stage, the Court is conscious of the precedent laid down by the Apex Court in Ambika Prasad v. State (Delhi Administration), AIR 2000 SC 718, that:
8. [D]ealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed : "....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 17/24 complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
9. Further in Paras Yadav and others v. State of Bihar, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held : "...It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
The present case appears to be on similar footing where the above said guidelines of the Apex Court apply precisely, hence, in these circumstances, it should be considered whether prosecution had been able to establish the case against the accused persons despite the defective investigation.
15.Now, the prosecution had claimed that the disclosure statements of accused Prakash and Girja, Ex. PW6/D and Ex. PW6/H, had been recorded in the presence of an independent witness Jai Singh, PW8, but he categorically stated that his signatures were taken by the police officials on blank papers. He did not support the case of FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 18/24 the prosecution at all.
Besides inadmissible disclosure of accused Prakash, prosecution has not produced any other direct or circumstantial evidence qua his involvement in the alleged conspiracy among the accused persons, consequent forgery or attempt to cheat.
Since no incriminating evidence was brought on record by the prosecution against the accused Prakash; his culpability, if any, could not be proved.
16.Qua culpability of accused Girja and Bharti, perusal of record reveals that there are only two evidences on which the prosecution is relying.
Firstly, the impugned instrument/cheque Ex. PW1/A had been issued to them in their current account with State Bank of Patiala, Karala Branch.
Secondly, the text of impugned instrument was in the handwriting of accused Bharti which had been so analyzed by CFSL in its report Ex. PWX.
But the testimonies of the police officials; PW5, Investigating Officer, and PW2, constable accompanying him;
FIR No. 310/94
PS: Sultanpuri
State v. Girja Shankar etc. 19/24
who had obtained specimen handwriting of accused Bharti reveals that they had categorically stated that the sheets Ex. PW2/A and Ex. PW2/B on which specimen handwriting of accused were taken had been signed by her. But, PW5, during his crossexamination, confirmed that the above mentioned sheets did not bear the signatures of Bharti.
Further, accused persons had contended that the specimen handwriting had not been obtained with the permission of the Court. The prosecution did not provide any explanation to the above mentioned contention as to why the specimen handwriting was not taken in the open Court.
In these circumstances, when accused Bharti had established a doubt on her alleged specimen handwriting sheets; consequently, a strong suspicion is created on the very basis of CFSL report Ex. PWX wherein it had compared the questioned handwriting and the specimen handwriting.
At this stage, the observation of Hon'ble Andhra Pradesh High Court in M. Durga Prasad v. State of A.P., supra, becomes relevant:
90. But, it should be borne in mind that the opinion of FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 20/24 an expert in writing is the weakest and the least reliable evidence and that it is not at all safe to base conviction upon the opinion of writing expert alone.
Courts have refused to act upon the evidence of expert unless it is corroborated by independent evidence. In a catena of decisions, it was ruled by the Apex Court that it would be highly unsafe to convict a person on the sole testimony of an expert. Therefore, the evidence of the expert (P. W. 33) who deposed in court basing on the opinion given by him earlier, cannot be said to be a conclusive proof.
It is so more particularly because of the fact that the said evidence is not corroborated by any independent evidence. Apart from that, as seen from the evidence on record the specimen signatures which were sent to the expert for examination were not obtained in open Court and they were obtained during the course of investigation by the C. B. I. Such an opinion based on the specimen signatures which are not taken in open Court, cannot be relied upon by the Court as it is not a valid opinion. Therefore, conviction cannot be based solely placing reliance on such opinion. Thus, the evidence on record is not sufficient to hold that A3, A7 and A8 have fabricated and forged the documents, as alleged by the prosecution. [emphasis supplied] Moreover, when the specimen handwriting of all the accused FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 21/24 persons were taken, the investigating agency had obtained specimen handwriting qua the text of the impugned instrument but not qua forgery of the signatures put on it which was the essential ingredient of forging any document.
17.Even if for the sake of arguments, specimen handwriting of accused Bharti, Ex. PW2/A and Ex. PW2/B, are considered to be her handwriting only. The precedent laid down by the Apex Court in Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152, precisely mandates that the investigating agency can not obtain specimen writing of accused during investigation. In the said case, it has been held that:
Considering the mandate of Section 73 of the Evidence Act, 1872, direction to an accused to give specimen writing can only be issued by the Court holding enquiry under Cr.P.C. or the Court conducting trial of such accused. Where case is still under investigation and no proceedings is pending in any Court, the accused cannot be compelled to give specimen writing. Failure of the accused to raise objection when called upon to give specimen writing is immaterial.
The Apex Court has, specifically, held that:FIR No. 310/94
PS: Sultanpuri State v. Girja Shankar etc. 22/24
21.[T]he specimen writing of Sukhdev Paul could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequence at all and cannot be used against Sukhdev Paul appellant to connect him with the crime.
18.In the light of above said legal and factual position, the CFSL report Ex. PWX is of no consequence at all and cannot be used against accused Bharti to connect her with the alleged forgery and attempt to cheat.
Having observed the above mentioned, at this stage, only one evidence is available against accused Girija and Bharti that the impugned cheque had been issued to them in their current account maintained with State Bank of Patiala. This is not sufficient evidence to assume or presume that none other than accused Girja and accused Bharti forged the cheque and submitted it to HiTec Engineers who had further deposited it to State Bank of Patiala.
The prosecution has to stand on its own leg to prove the case against the accused beyond reasonable doubt. Despite the existence of the circumstance that the cheque book must have been in the FIR No. 310/94 PS: Sultanpuri State v. Girja Shankar etc. 23/24 exclusive possession of the accused Girja and Bharti, the defence put by accused persons by way of testimony of DW1 that accused Sandeep had taken the cheque book from him and Sandeep had no permission, to this effect, of accused Girja would have to be kept in consideration, specifically when there is no other evidence available on record to connect the accused persons with the alleged offences. Any person can not be convicted on assumptions or presumptions.
19. In view of above said discussion, the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. Accordingly, I acquit the accused Girja, Bharti and Prakash. Bail bonds canceled. Sureties discharged. Any endorsement placed on the documents of the surety may accordingly be canceled and returned.
Announced in open Court Naveen Gupta
(Copies 1+3) MM/Delhi/02.12.10
FIR No. 310/94
PS: Sultanpuri
State v. Girja Shankar etc. 24/24