Delhi District Court
State vs Aditya Narayan Panda on 3 July, 2014
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IN THE COURT OF MR. PRITAM SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE/ SOUTH EAST DISTRICT/ SAKET
COURT COMPLEX, NEW DELHI.
Unique Identification no. 02403R0380322003
Case no. RBT728/I dated 22.07.2013
FIR No. 407/02
PS : New Friends Colony
State Vs Aditya Narayan Panda
JUDGEMENT
S. No. of Case : RBT728/I dated 22.07.2013
Date of Commission : 6.8.2002
of offence
Name of Complainant : Vivek Malhotra
Name and address : Aditya Narayan Panda
of accused S/o Sh.Mirnal Kanti Panda,
R/o Village Karkulli, P.S. Kontai,
Distt. Midnapur (West Bengal)
Offence Complained : U/s 420/467/468/471 IPC
Plea of accused : Not guilty
Arguments heard : 27.06.2014
Date of judgment : 03.07.2014
Final order : Convicted.
1. The brief facts of the prosecution case are that a complaint was made by Sh.Vivek Malhotra, Branch Manager, ICICI Bank, Branch Greater Kailash, New Delhi to SHO, P.S. New Friends Colony on 6.9.2002 stating that ICICI Bank had received a complaint from their account holder M/s Fashion Designs Council of India (hereinafter called the FDCI) about the missing of cheque bearing no. 068384 dated 30.7.2002 amounting to Rs.2,36,875/ issued by FDCI in favour of FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 1 of 31 2 M/s IPAN. On 6.8.2002, the said cheque was encashed in the account of Sh.Aditya Narayan Panda (hereinafter called the accused), who altered the payee's name on the said cheque by writing his own name and which was credited in his account no. 004601032383 with ICICI Bank, Branch New Friends Colony. It is further stated that the accused Aditya Narayan Panda had withdrawn Rs.2,07,000/ from his account in ICICI Bank on various dates through cheque and ATM card. On this complaint, the present case was registered for offences u/s 420/468/471 IPC.
2. During investigation, four drafts amounting to Rs.1,67,000/ in the name of Sh.Mirnal Kanti Panda, father of the accused, were recovered from the house of the accused at Chirag Delhi, New Delhi. The specimen signature/ handwriting of the accused were obtained and other documents were also seized and same were sent to GEQD, Hyderabad for handwriting expert opinion. Section 467 IPC was also added. After completion of investigation, charge sheet u/s 420/467/468/471 IPC was filed against the accused. Thereafter, vide order dated 10.4.2003, charge for offence u/s 420/467/468/471 of IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charge against the accused, the prosecution has examined twelve witnesses. Ms. Urmil Gulati, Branch Manager, ICICI Bank, New Friends Colony branch, was examined as PW1, Sh.R.N. Sharma, Dy. Manager of State Bank of India, Asaf Ali Road, Delhi was examined as PW2, HC Tarif Singh, who deposited a sealed packet to GEQD Hyderabad, was examined as PW3, Sh.Rajender Chaswal, Manager, United Bank of India, Nehru Place branch was FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 2 of 31 3 examined as PW4, Sh.Vinod Kaul, who was Director of Fashion Design Council of India, was examined as PW5, Smt.Sangeeta Arora, who was Asstt. Manager in ICICI Bank, RPC, was examined as PW6, Vivek Malhotra, Branch Manager of ICICI Bank, was examined as PW7, HC Bodu Ram, who was the Duty Officer, was examined as PW8, Ct. Raj Singh, in whose presence the accused made disclosure statement and recovery of drafts and money was effected, was examined as PW9, Sushant Dhar, who worked with the accused in IPAN company, was examined as PW10, SI Anuj Nautiyal, who is the IO, was examined as PW11 and Sh.Sat Narayan Gupta, Dy. Govt. Examiner of questioned documents (GEQD Hyderabad) was examined as PW12. During prosecution evidence, the following documents were exhibited:
(i) Statement of account of accused Ex.PW1/A
(ii) Draft applications of SBI Ex.PW2/A & B
(iii) Seizure memo of draft applications of SBI Ex.PW2/C
(iv) Road Certificate No.111/02 regarding deposition Ex.PW3/A of Pullanda in GEQD, Hyderabad
(v) Drafts No.118765 and 118758 of United Bank Ex.PW4/A & B of India
(vi) Seizure memo of drafts of United Bank of India Ex.PW4/C
(vii) Photocopy of cheque no.068384 in question Ex.PW5/A
(viii) Original cheque no.068384 in question Ex.PW5/B / Ex.PX4
(ix) Complaint dated 6.9.2002 Ex.PW7/A
(x) Seizure memo of four cheques including cheque Ex.PW7/B in question.
(xi) Recovery memo of letter recovered from accused Ex.PW7/C
(xii) Copy of the FIR Ex.PW8/A
(xiii) Disclosure statement of accused Ex.PW9/A
FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 3 of 31
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(xiv) Seizure memo of 4 demand drafts and Rs.5,550/ Ex.PW9/B
(xv) Arrest memo of accused Ex.PW11/A
(xvi) Personal search memo of accused Ex.PW11/B
(xvii) Letter recovered from accused Ex.PW11/C
(xviii) Specimen signature and handwriting of accused Ex.PW11/D to F
(xix) Application for submitting GEQD result Ex.PW11/G
(xx) GEQD result Ex.PW12/A
(xxi) Forwarding letter of GEQD result Ex.PW12/B
(xxii) Illustrations submitted by Govt. Examiner of Ex.PW12/C
Questioned document
(xxiii) Three cheques of Rs.50,000/ each used by Ex.PX1 to PX3
accused for withdrawal
(xxiv) Two draft applications of SBI Ex.PX5 & PX6
(xxv) Four demand drafts (two of SBI and two of Ex.P1 to P4
United Bank of India)
(xxvi) Case property i.e. currency notes of Rs.5,550/ Ex.P5 (colly)
4. The statement of accused u/s 313 Cr.P.C. was recorded on 4.2.2014 wherein he denied the deposition of witnesses against him being false and interested witnesses. Accused stated that in the year 2002, he was residing at House No.404, Chirag Delhi as tenant. In his neighbourhood, Mr. Sushant was residing. He was working in Paharpur Business Center Ltd. and Sushant was working in IPAN company. Sushant was from his neighbourhood village also. Sushant had taken a loan of Rs.60,000/ from him. One day in the evening, he came to him with a cheque and requested him that he should deposit the same in his bank as he did not had a bank account. Accused further stated that Sushant told him that he had received this cheque from his employer IPAN as they removed him from the services and he further told that after encashing the cheque he FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 4 of 31 5 (accused) could take his money back and the balance amount was to be given by him (Sushant). Accused further stated that Sushant further told him that bank officials were known to him and there would be no problem whatsoever. Finally, the accused was falsely implicated in the case with the collusion of police officials. Accused did not lead any defence evidence.
5. Final arguments heard. Ld. Counsel for accused also filed written submissions. Ld. Counsel for accused relied upon the following authorities:
(i) State of Haryana vs. Ram Singh, 2002 SCC (Crl.) 351
(ii) Kuldeep Singh etc. vs. State of Delhi, 2004(1) JCC 63
(iii) Surinder Pal Jain vs. Delhi Administration, 1993 SCC (Crl.) 1096
(iv) Goverdhan @ Amit vs. State (Delhi), 2009(3) JCC 2051
6. I have perused and considered the entire record carefully. Sections 420/467/468/471 IPC provides: Section 420 IPC provides :
Cheating & dishonestly inducing delivery of property - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 467 IPC provides :
Forgery of valuable security, will, etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 5 of 31 6 make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 468 IPC provides :
Forgery for purpose of cheating - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471 IPC provides :
Using as genuine a forged document or electronic record - Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
7. PW1, Branch Manager, ICICI Bank, Branch New Friends Colony deposed that on 6.9.2002, he had handed over the statement of account no. 004601032383 for the period 8.1.2002 to 6.9.2002 of accused Aditya Narayan Panda, copy of same was Ex.PW1/A, which bore his signature at point 'X'. PW1 further deposed that Ex.PW1/A was certified copy of computer, which she had taken from the floppy of the computer.
8. PW2, Dy. Manager, SBI, Branch Asaf Ali Road, New Delhi deposed FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 6 of 31 7 on 9.9.2002, he was posted as Branch Manager, SBI, Cannaught Place. He had handed over original draft applications to IO Ex.PW2/A and Ex.PW2/B. IO had seized the same in his presence and prepared seizure memo Ex.PW2/C, which bore his signature at point 'A'. PW2 further deposed as per application form, Adtiya Narayan Panda had deposited Rs.49,098/ and Rs.24,040/ for issuing the drafts and draft no.0408371210 dated 26.8.2002 for Rs.49,000/ and draft no. 0408371227 dated 27.8.2002 for Rs.20,000/, respectively in favour of Sh.Mirnal Kanti Panda payable at Contai, code no.0057.
9. PW3 deposed that on 18.10.2002, he was posted at P.S. New Friends Colony. On that day, SI Anuj Notiyal handed over to him a sealed packet sealed with the seal of 'AN', which he had taken to GEQD, Hyderabad, which was received by them on 22.10.2002 vide RC No.111/02 Ex.PW3/A. PW3 further deposed that he had brought the receipt and handed over the same to MHC(M). PW3 further deposed that as long as the sealed pullanda was remained with him, nothing was tampered. PW3 deposed in his crossexamination that pullanda was sealed in front of him. He did not bring the report of GEQD, Hyderabad.
10. PW4, Manager, United Bank of India, Branch Nehru Place deposed that he had been asked by the IO to supply application forms of draft no.118764 dated 29.8.2002 for Rs.49,000/ and draft no.888758 dated 28.8.2002 for Rs. 49,000/ and he handed over the same Ex.PW4/A and Ex.PW4/B to the IO. PW4 further deposed that same were seized vide seizure memo Ex.PW4/C, which bore his signature at point 'A'. PW4 further deposed that the said drafts were prepared FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 7 of 31 8 in favour of Mirnal Kanti Panda by Aditya Narayan Panda.
11. PW5 deposed that he issued cheque dated 30.7.2002 no.068384 in the capacity of Director of FDCI for Rs.2,36,875/ in favour of M/s IPAN. PW5 further deposed that he handed over the said cheque to the executive of IPAN. Subsequently, he came to know from IPAN that they had misplaced the said cheque and they had asked to issue another cheuqe. He deputed his accountant to the bank to get stopped the payment of the said cheque, however, the bank informed them after investigation that the cheque had already been deposited and encashed in favour of the accused Adtiya Narayan Panda and that there was overwriting on the cheque Ex.PW5/B, which bore his signature at point 'A'.
12. PW6 deposed that on 6.8.2002, he was posted as Asstt. Manager in ICICI Bank, RPC. All the dropped cheques were collected by their agency and same came to her for transfer. On 6.8.2002, the cheque no.69384 for Rs.2,36,875/ came to her for transfer in routine manner. She had transferred the same to the concerned account of Aditya Narayan Panda. PW6 further deposed that she could not observe the overwriting on cheque due to pressure of work.
13. PW7 deposed that they had received a letter from FDCI on 5.9.2002 that cheque no.69384 for Rs.2,36,875/ drawn on their account with their Greater Kailash branch was misplaced and was favouring IPAN. They checked their account and found that the said cheque was encashed in the account of Aditya Narayan Panda, who was also maintaining account in their New Friends Colony branch. PW7 further deposed that from the cheque, they discovered that the FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 8 of 31 9 payee's name was altered to Aditya Narayan Panda. They traced Adtiya Narayan Panda at his residence in Chirag Delhi and asked him to go to their regional office at Lodhi Road. He admitted that the alteration was done by him and he had withdrawn a sum of Rs.2,07,000/ using cheques and ATM card. They called PCR and accused was taken to Lodhi Road police station, from there, he was referred to P.S. New Friends Colony. PW7 further deposed that written complaint dated 6.9.2002 Ex.PW7/A bore his signature at point 'A'. PW7 further deposed that he had also submitted three cheques in original bearing no.191171 dated 26.8.2002, 191178 dated 28.8.2002 and 191179 dated 29.8.2002 for Rs.50,000/ each used by the accused for withdrawal of cash from his account vide memo Ex.PW7/B, which bore his signature at point 'A', at Nehru Place and Cannaught Place branches. Recovery memo was prepared in his presence as Ex.PW7/C, which bore his signature at point 'A'.
14. PW8 deposed that on 6.9.2002, he was posted at P.S. New Friends Colony. On that day while working as Duty Officer, he recorded FIR No.407/02 at about 4.00 p.m. Carbon copy of FIR Ex.PW4/A bore his signature at point 'A'.
15. PW9 deposed that on 6.9.2002, he had joined the investigation of this case with IO. Accused made a disclosure statement Ex.PW9/A. Thereafter, they had gone to room no.404, Chirag Delhi, from there accused had got recovered a rexene bag, 4 demand drafts and Rs.5,550/ and the same were taken in possession vide memo Ex.PW9/B. PW9 identified the case property i.e. currency notes in the denomination of 10 notes of Rs.500/, 5 notes of Rs.100/ and one note of Rs.50/ FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 9 of 31 10 in a poly bag without seal, total amounting to Rs.5,550/. Case property is Ex.P5. PW9 deposed in his crossexamination that at the time of giving disclosure statement, one Sushant Dhar was present in the police station with him. The disclosure statement was recorded by the IO. PW9 again said that Sushant Dhar was not present at the time of recording the disclosure statement. PW9 further deposed that when the disclosure statement was being recorded, the accused was already arrested. Other police persons were also present including Sushant Dhar at the time of recording disclosure statement of the accused. The currency notes were sealed by the IO. There was no seal on the currency notes when it were produced in the court. This amount was recovered from the bag of Aditya Pandey at his house. It was a rexene type bag. At the time of recovery of money, Sushant Dhar was with them. PW9 further deposed that he also counted this money. They had brought the accused to the police station from the house of the accused by a threewheeler. They boarded in the threewheeler. IO got counted the money from Sushant Dhar and also took his signature on the statement of Sushant Dhar and seizure memo. IO also made inquiries from Sushant Dhar on that very date. IO might have put the numbers of the currency notes in seizure memo.
16. PW10 Sushant Dhar deposed that in the year 2002, he was residing at House No.404, Chirag Delhi, New Delhi and at that time, he was working in the company of PBC, Nehru Place. The accused Aditya Narayan Panda was also working with him in the company PBC, Nehru Place. The company PBC sent the accused and him to IPAN company for housekeeping work. Thereafter, he was FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 10 of 31 11 transferred to EKRA company. After some days, Manager/officer of IPAN company inquired regarding the absence of accused from the company and also address of the accused and he provided the address of the accused i.e. 404, Chirag Delhi, New Delhi. Police came at the IPAN company and took them to residence of the accused at 404, Chirag Delhi and on search of the room by the police, four drafts were recovered and Rs.5,500/ was recovered from bag which was lying in the room of the accused. Thereafter, IO seized the said four drafts and money vide seizure memo Ex.PW9/B, which bore his signature at point 'B'. PW10 deposed that he could not identify the said drafts due to lapse of time. PW10 identified Rs. 5,550/. Ld. APP for State put a leading question after seeking permission from the court and he was allowed. PW10 admitted the suggestion given by Ld. APP for State that drafts Ex.P1 to P4 were recovered from the room of the accused, which was lying in a bag and cash amount of Rs.5,550/ was recovered from the room of the accused on pointing out by the accused. PW10 deposed in his cross examination that he as well as accused both were living in House No.404, Chirag Delhi. They had been residing in that building for last about two years. He and accused both were from West Bengal. Accused was residing in the adjoining room for the last few months. PW10 admitted the suggestion that he was working in IPAN company in the housekeeping section. Accused was working in Paharpur Business Center (PBC), Nehru Place. PW10 further deposed that he had never kept cheques in his custody as it was not his job. PW10 denied the suggestion that he had kept the cheque in his home. PW10 further deposed that he did not know FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 11 of 31 12 anything except the recovery in this case. PW10 further deposed that he did not know how many documents he had signed and police did not inform him about the documents he had signed. He had met the police officials at the police station only. There were 23 police officials who had accompanied him to the house of the accused. The police officials checked the house of the accused as well as his house. PW10 voluntarily deposed that recovery was effected from the house of the accused only. It was morning when they reached at the house of the accused with police officials. PW10 denied the suggestion that they were knowing each other as neighbour. PW10 further denied the suggestion that the accused had given Rs.60,000/ to him and he had given the cheque to the accused in consideration. PW10 further denied the suggestion that the cheques were brought by him from IPAN company as he was working there as receptionist. PW10 further denied the suggestion that the amount was given by him as consideration and there was understanding between him and the accused that the accused would return the balance amount as he was not having the bank account.
17. PW11/IO deposed that on 06.09.2002 at around 0200 / 0230 a.m., the complainant namely Vicky Malhotra came at the P.S. with accused Aditya Narayan Pandey and handed over a written complaint Ex.PW7/A to the Duty Officer. After registration of the FIR, the Duty Officer handed over the copy of FIR and original complaint to him for further investigation of the case. During course of the investigation, he interrogated the accused and the accused disclosed that he had forged a cheque of Rs.2,36,875/ and deposited the same in his FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 12 of 31 13 account in ICICI Bank. Accused further disclosed that he had withdrawn some amount out of this and got prepared four drafts in the name of his father which he could recover from his residence. Thereafter, he arrested and carried out personal search of the accused vide memos Ex.PW11/A and Ex.PW11/B, which bore his signatures at points 'A', respectively. PW11 further deposed that one paper was also recovered from the pocket of shirt of the accused in which the accused had practiced some alphabets to be forged. The said paper is exhibited as Ex.PW11/C. He seized the said letter vide seizure memo Ex.PW7/C, which bore his signature at point 'B'. He recorded the disclosure statement of the accused Ex.PW9/A, which bore his signature at point 'B'. PW11 further deposed that he alongwith Ct. Raj Singh and the accused went to the house of the accused i.e. 404, Chirag Delhi, New Delhi at around 08.00 a.m. on the same day i.e. 06.09.2002. On pointing out of the accused, four drafts (three of Rs.49,000/ each and fourth was of Rs.20,000/, all in favour of Mirnal Panda) and Rs.5,550 in cash (in the denomination of 10 currency notes of Rs.500/ each, 5 currency notes of Rs.100/ and one currency note of Rs.50/) were recovered from the house of the accused. Said drafts are Ex.P1 to Ex.P4. He seized the said drafts and cash vide seizure memo Ex.PW9/B, which bore his signature at point 'B'. At the time of seizure, one Sushant Dhar neighbour of the accused was also present, in whose presence he seized the above mentioned drafts and cash. He recorded the statement of said Sushant Dhar. Thereafter, the accused was produced before the concerned court and the concerned court sent him to JC. During the course of the investigation, on FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 13 of 31 14 09.09.2002, the complainant Vicky Malhotra @ Vivek Malhotra came at the P.S. and produced four cheques, out of which, one was of Rs.2,36,875/ and other three were of Rs.50,000/ each. The cheque of Rs.2,36,875/ was the same as alleged to had been forged by the accused and remaining three cheques were used by accused to withdraw Rs.1,50,000/ in cash. The said four cheques are Ex.PX1 to Ex.PX4. The said four cheques were taken into police possession vide seizure memo Ex.PW7/B, which bore his signature at point 'B'. PW11 further deposed that on the same day i.e. 09.09.2002, he seized two draft application forms from State Bank of India, Cannaught Place which were filled in for issuing of drafts of Rs. 49,000/ and Rs.20,000/ in the name of Mirnal Panda. The said two drafts application are exhibited as Ex.PX5 and Ex.PX6. The seizure memo of the said two drafts application Ex.PW2/C bore his signature at point 'B'. PW11 further deposed that on 10.09.2002, he also seized two drafts application form United Bank of India, Nehru Place filled in for issuing drafts of Rs.49,000/ each in the name of Mirnal Panda and the said two draft applications Ex.PW4/A & Ex.PW4/B and the same were taken into police possession vide seizure memo Ex.PW4/C, which bore his signature at point 'B'. PW11 further deposed that he obtained the specimen signature and handwriting of the accused as Ex.PW11/D, Ex.PW11/E & Ex.PW11/F, which bore his signatures at points 'A'. In the meantime, SI Himmat Singh also obtained specimen signature and handwriting of the accused. He sent the documents in question and the specimen signatures and handwritings of the accused to GEQD, Hyderabad for its opinion. Thereafter, he recorded the FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 14 of 31 15 statement of the witnesses and prepared the challan and filed the same in the concerned court through concerned SHO. PW11 idenitified the accused in the court. PW11 further deposed that he had also obtained the account statement of the accused Ex.PW1/A from ICICI Bank. He had also obtained the FSL result from GEQD, Hyderabad alongwith the documents and the same was filed in the court on 22.01.2003 vide an application Ex.PW11/G, which bore his signature at point 'A'. The cash amount recovered from the accused was deposited in the Malkhana. PW11 correctly identified the case property i.e. cash of Rs.5,550/ (in the denomination of 10 currency notes of Rs.500/ each, 5 currency notes of Rs. 100/ and one currency note of Rs.50/) in a poly bag which was produced in the court without seal and the same currency notes are Ex.P5.
18. PW11 deposed in his crossexamination that at the time of handing over the complaint by Vicky Malhotra, he was not sitting in the Duty Officer Room. Vicky Malhotra himself came to the police station to hand over the complaint. The accused accompanied with Vicky Malhotra in the police station on that day. Only Vicky Malhotra and accused came to the police station. He had seen the identity card of Vicky Malhotra. He had not mentioned this fact. He had not seen the complaint which the informant claimed that he received at Greater Kailash branch. Vicky Malhotra had informed them that they had called the said Aditya Narayan Panda at his office for inquiry of the cheque in question for an amount of Rs.2,36,875/ in the name of M/s IPAN and thereafter, he brought him to the police station. There was no inquiry whatsoever by him before registration FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 15 of 31 16 of the FIR. It took about one hour in the formalities in the registration of FIR. He received the investigation of this case at about 400 a.m. PW11 admitted that the cheque in question was issued by M/s Fashion Design to IPAN. PW11 further deposed that he had asked M/s Fashion Design when the cheque in question was issued by them to IPAN. He did not know by which mode the cheque in question was sent to IPAN by M/s Fashion Design. He admitted the suggestion that when he had gone for recovery of the cheques one neighbour of the accused namely Sushant Dhar was residing and they were from the same District. He further admitted that in the official record of IPAN, the cheque in question was not received. PW11 further deposed that during the inquiry, it was revealed that Sushant Dhar was working in some private job and the accused was working in IPAN. PW11 denied the suggestion that the accused was working in Paharpur Business Center, 21, Nehru Place, New Delhi instead of IPAN. He did not make investigation about the place of working and name of the company, where Sushant Dhar was working. He denied the suggestion that he knew that Sushant Dhar used to work in reception of IPAN. He further denied the suggestion that the cheque in question was received by Sushant Dhar at the reception of IPAN. He further denied the suggestion that during investigation, it came to notice that Sushant Dhar forged the cheque. He further denied the suggestion that Sushant Dhar gave the cheque in question of Rs.2,36,875/ to the accused for the consideration of Rs. 60,000/ which was paid by the accused to Sushant Dhar. He further denied the suggestion that he had not properly investigated the matter and accused has been FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 16 of 31 17 falsely implicated in this case.
19. PW12, expert from GEQD, Hyderabad deposed that the documents of this case were sent to their laboratory by Addl. Dy. Commissioner of Police, South District, Delhi police vide his memo no.1331/R/SHO/NFC dated 18.10.2002 for examination and opinion. The documents were consisting of questioned documents and standard documents. PW12 further deposed that the documents were marked as Q1, Q1/1, Q1/2, Q1/3 on Ex.PX1 and Q2, Q2/1, Q2/2, Q2/3 on Ex.PX2 and Q3, Q3/1 to Q3/6 on Ex.PX3 and Q4, Q4/1, Q4/2 exhibited as Ex.PX3/1 and Q5, Q5/1 on Ex.PX4 and Q6, Q6/1 to Q6/4 on Ex.PX5 and Q7, Q7/1 to Q7/5 on Ex.PX6 and Q8, Q8/1 to Q8/5 on Ex.PW4/A and Q9, Q9/1 to Q9/5 on Ex.PW4/B and specimen marked as S1 to S3 exhibited as Ex.PW7/1 to Ex.PW7/3, respectively and specimen marked as S4 to S6 exhibited as Ex.PW11/D, Ex.PW11/E and Ex.PW11/F, respectively. After careful and thorough examination of the original documents by using lenses of various magnifications, stereo microscope, video spectral comparatorI, video spectral comparator 2000 and other light arrangements, filters etc., he came to the following conclusion :
(i). In the red enclosed portion stamped and marked Q5 the original writing 'IPAN' has been altered to the existing writing 'ADITYA NARAYAN PANDA' by overwriting and addition.
(ii). In the red enclosed portion stamped and marked Q5/1 the obliterated figures when deciphered read '051316214002'.
(iii). The red enclosed writings stamped and marked Q1/2, Q1/3, Q2/2, Q2/3, Q3/5, Q3/6, Q4, Q4/1, Q4/2 and S1 to S6 were all written by one and the same person.
FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 17 of 31 18
(iv). It has not been possible to express any opinion on the rest of the items on the basis of material at hand.
PW12 further deposed that the opinion Ex.PW12/A bore his signatures at point 'A' and same was correct. The opinion also bore signature of Sh.R.B. Bhosale, Asstt. Govt. Examiner of Questioned Documents (GEQD) at point 'B', who had also examined the documents of this case independently and came to the same conclusion. PW12 further deposed that he identified his signature as he was working in the same office. This opinion was forwarded to the Dy. Commissioner of Police, South Distt., Delhi Police, Delhi vide our letter no.CH356/02/5307 and 5308 dated 19.12.2002 Ex.PW12/B. The letter Ex.PW12/B bore the signature of Sh.Narender Singh, GEQD at point 'A' and PW12 also identified his signature as he was working in the same office as head of the office. PW12 further deposed that the opinion was based on the grounds of cumulative consideration of various similarities both in general and individual writing habits found between the questioned and specimen writings. PW12 further deposed that those were illustrations in his reasons in 2 pages each page is signed by him and are correct. The said pages Ex.PW12/C (colly) bore his signatures at points 'A' on each page. PW12 deposed in his crossexamination that when he examined the documents in question, he was having an experience of about 32 years. At that point of time, he had examined about thousands of documents and gave opinion. He denied the sugegstion that there was chance of mistake in examining the documents in question and the opinion could not be always correct. His opinion was not got verified from his senior as it was not required. PW12 voluntarily deposed that as per practice, the documents of each case were examined by two FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 18 of 31 19 experts and it was not necessary after two experts, third expert should examine. PW12 further deposed that the writing of two persons could not be similar. He denied the suggestion that as he was working in the capacity of Dy. Govt. Examiner of Questioned Documents, therefore, he gave report in favour of the state.
20. As per the prosecution story, the accused had forged cheque bearing no.069384 for Rs.2,36,875/ by altering the name of IPAN and wrote his own name. The accused had presented the said cheque in his account in ICICI Bank, Branch New Friends Colony and got encashed the said cheque in his account and also withdrew Rs.2,07,000/ from his account by using cheques and through ATM card.
21. From the deposition of PW1, statement of account no.004601032383 in the name of accused Aditya Narayan Panda Ex.PW1/A is proved. Ex.PW1/A shows that cheque no.068384 was credited in the account of the accused on 6.8.2002. From Ex.PW1/A, it is further proved that Rs.2,07,000/ have been withdrawn from the account of accused on various dates through cheques and ATM card.
22. PW2 has deposed that on 9.9.2002, he had handed over original draft applications to IO, which is Ex.PW2/A and Ex.PW2/B. Same were seized by the IO vide seizure memo Ex.PW2/C. PW2 further deposed that accused Adtiya Narayan Panda had deposited Rs.49,098/ and Rs.24,040/ for issuing the drafts and draft no.0408371210 dated 26.8.2002 for Rs.49,000/ and draft no.0408371227 FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 19 of 31 20 dated 27.8.2002 for Rs.20,000/, respectively were issued in favour of Sh.Mirnal Kanti Panda (father of the accused). Thus, PW2 has proved draft applications Ex.PW2/A and Ex.PW2/B and their seizure memo Ex.PW2/C. PW2 further established that two drafts of Rs.49,000/ and 20,000/ were got prepared by accused in the name of his father.
23. PW3 deposed that on 18.10.2002, SI Anuj Notiyal handed over to him a sealed packet sealed with the seal of 'AN', which he had taken to GEQD, Hyderabad and deposited the same there on 22.10.2002 vide RC No.111/02 Ex.PW3/A. PW3 deposited the said receipt to the MHC(M). PW3 categorically deposed that there was no tampering in sealed packet till it remained with him. Thus, it is established that sealed packet without tampering was deposited in GEQD, Hyderabad.
24. PW4 has proved that he had supplied to IO application forms of draft no.118764 dated 29.8.2002 for Rs.49,000/ and draft no.888758 dated 28.8.2002 for Rs.49,000/ and same are Ex.PW4/A and Ex.PW4/B and same were seized vide seizure memo Ex.PW4/C which bore his signature at point 'A'. PW4 has further proved that the said drafts were prepared in favour of Mirnal Kanti Panda (father of the accused) by accused Aditya Narayan Panda. Thus, PW4 has proved application form of two drafts of Rs.49,000/ each Ex.PW4/A and Ex.PW4/B and also their seizure memo Ex.PW4/C. It is further established that said two drafts were also got prepared in favour of father of accused.
25. PW5 Sh.Vinod Kaul from FDCI deposed that he issued cheque no. FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 20 of 31 21 068384 dated 30.7.2002 for Rs.2,36,875/ in favour of M/s IPAN and they had handed over the aforesaid cheque to the executive of IPAN. Subsequently, he came to know from IPAN that they had misplaced the aforesaid cheque and asked them (FDCI) to issue another cheque. PW5 further deposed that he inquired from his bank and were informed that the said cheque had already been deposited and encashed in favour of Aditya Narayan Panda and there was overwriting on the cheque Ex.PW5/B.
26. PW6 Sangeeta Arora, Asstt. Manager in ICICI Bank deposed that on 6.8.2002, cheque no.068384 for Rs.2,36,875/ came to her for transfer in routine manner. She had transferred the same to the account of Aditya Narayan Panda. She could not observe the overwriting on the cheque due to pressure of work. PW7 Sh.Vivek Malhotra, Branch Manager from ICICI Bank deposed that they had received a letter from Fashion Design Council of India i.e. FDCI on 5.9.2002 that cheque no.69384 for Rs.2,36,875/ drawn on their account with their Greater Kailash branch was misplaced and it was issued in favour of IPAN.
27. PW7 further deposed that they checked their account and found that the said cheque has been encashed in the account of Aditya Narayan Panda, who was maintaining his account with their New Friends Colony branch. PW7 further deposed that they traced Aditya Narayan Panda at his residence in Chirag Delhi and asked him to go to their regional office at Lodhi Road. Aditya Narayan Panda admitted that the alteration was made by him and he had withdrawn a sum of Rs. 2,07,000/ from his account. PW7 further deposed that they called PCR and FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 21 of 31 22 Aditya Narayan was taken to Lodhi Road police station and after that he was referred to P.S. New Friends Colony. PW7 further deposed that he made written complaint Ex.PW7/A on 6.9.2002 to P.S. New Friends Colony and the case was registered. PW7 further deposed that he had filed original cheque no.068384 alongwith deposit slip used by the accused for depositing the said cheque and also submitted three cheques in original bearing no.191177, 191178 and 191179 dated 26.8.2002, 28.8.2002 and 29.8.2002, respectively, for Rs.50,000/ each, used by the accused for withdrawal of cash from his account, vide memo Ex.PW7/B, which bore his signature at point 'A'.
28. In view of above discussions of the depositions of PW1 to PW7, it is established beyond reasonable doubt that the accused had presented the cheque in question Ex.PW5/B bearing no.068384 in his account in ICICI Bank, Branch New Friends Colony and it was credited in the account of the accused. It is further proved that the accused has also withdrawn a sum of Rs.1,50,000/ vide three cheques each of Rs.50,000/ and Rs.57,000/ through ATM. It is important to mention here that the accused took a defence and also stated in his statement u/s 313 Cr.P.C. that the cheque in question was given to him by his friend Sushant Dhar, who was working in IPAN company as Sushant Dhar had taken a loan of Rs.60,000/ from him and he told the accused to deposit the cheque in question in his account as he was not having bank account and return the balance amount after deducting Rs.60,000/ to him. Now it has to be seen whether there is substance in the defence of the accused that the cheque in question was given to him by his FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 22 of 31 23 friend Sushant Dhar and accused had no knowledge that it was a forged cheque. It is well settled law that the burden to prove a fact lies upon the person, who asserts the said fact. Section 103 of Indian Evidence Act provides as follows: Burden of proof as to particular fact - The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration :
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
It is held in Balram Parshad Aggarwal vs. State, AIR 1997 (SC) 1830 that initial burden is on the prosecution to prove charge against the accused. But once this burden is discharged, it is for the accused to prove facts which are specially within their knowledge.
As the accused has taken this defence, therefore, burden lies upon him to prove this fact that the cheque in question was given to him by Sushant Dhar. The accused did not lead any defence evidence. The accused also did not get crossexamined PW1 to PW8. The defence of the accused is that his friend Sushant Dhar had given the cheque in question to repay a loan of Rs.60,000/. Sh.Sushant Dhar was examined by the prosecution as a prosecution witness PW10. PW10 deposed that the accused was working with him in Paharpur FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 23 of 31 24 Business Center (PBC), Nehru Place. The company PBC sent the accused and him to IPAN company for housekeeping work. Thereafter, he was transferred to EKRA company. After some days, Manager of IPAN company enquired about the absence of accused from the company. Thereafter, the officers of IPAN company enquired him regarding the address of the accused and he provided the address of the accused to them. Police came at IPAN company and took them to the residence of the accused i.e. 404, Chirag Delhi, New Delhi and on search of the room by the police, four drafts were recovered and a cash amount of Rs.5,500/ (500 x 10 and 100 x 5) from a bag, which was lying in the room of the accused. Thereafter, IO seized the said four drafts and cash amount vide seizure memo Ex.PW9/B, which bore his signature at point 'B'. IO recorded his statement. PW10 could not identify the drafts when shown to him. However, when a leading question was put to him by Ld. APP for State, PW10 identified the said four drafts Ex.P1 to P4 and further admitted that Rs.5,550/ were recovered from the room of the accused on pointing out by him. PW10 deposed in his crossexamination that he as well as the accused both were living in house no.404, Chirag Delhi for last two years. PW10 further admitted that he and the accused both were from West Bengal. The accused was residing in the adjoining room for the last few months. PW10 denied the suggestion that they used to talk each other. PW10 further admitted that he was working in IPAN company. PW10 further deposed that he was working in housekeeping section of the company and not as receptionist. PW10 further admitted that the accused was working in Paharpur FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 24 of 31 25 Business Center (PBC). PW10 denied the suggestion that he had taken loan of Rs.60,000/ from the accused and to pay the said loan, he had given cheque in question to the accused as he was not having any bank account.
29. There are some contradictions in the deposition of PW10. PW10 deposed in his examinationinchief that he was working in PBC, Nehru Place alongwith accused and PBC sent him and accused to IPAN company for housekeeping work. PW10 admitted that he was working in IPAN company. PW10 admitted that he and accused both were living in house no.404, Chirag Delhi for last about two years. PW10 further admitted that he and accused were from West Bengal, but PW10 denied the suggestion that he used to talk with the accused. Thus, the deposition of PW10 is little bit shaky but not fatal to the case of the prosecution. PW9 deposed that at the time of recording disclosure statement of accused, one Sushant Dhar was present in the police station. He again said Sushant Dhar was not present at the time of recording of disclosure statement of the accused and other police personnels were also present including Sushant Dhar. The currency notes were sealed by the IO, but there was no seal on the currency notes when they were produced in the court. PW9 further deposed that this amount was recovered from a raxene type bag of Aditya Narayan Panda at his house. There are a few minor contradictions in the deposition of PW9. At once he said that Sushant Dhar was present in the police station when disclosure statement of accused was recorded, but later deposed that Sushant Dhar was not present. I am of the considered view that these contradictions are minor in nature FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 25 of 31 26 and do not go to the root of the case. It is well settled law that the evidence of a witness is to be read in total and it cannot be read and considered in pieces, particularly when the depositions of witnesses are recorded after more than 10 years from the date of incident. There is hardly any contradiction in the deposition of PW11 and PW12. It was held in State of U.P. vs. M.K. Anthony, AIR 1985 (SC) 48 that minor discrepancies not going to the root of the matter would not permit rejection of evidence. Every honest and truthful witness may differ in some detail unrelated to the main incident because power of observation, retention and reproduction differ with individuals. It is also held in Fakira vs. State, AIR 1976 (SC) 915 that minor discrepancies guarantee that witnesses were not tutored.
30. For the sake of arguments, if it is assumed that the cheque was given to the accused by Sushant Dhar (PW10) to repay loan of Rs.60,000/, but from the face of the cheque, it is clear that there is overwriting / alteration in it. PW12 has proved GEQD result Ex.PW12/A in which it is stated that word IPAN was altered to Aditya Narayan Panda at point Q5 in Ex.PX4 by overwriting and addition. There is also cutting on the back of overleaf of cheque Ex.PW5/B and it was a forged cheque. Thus, it is beyond stretch of imagination that accused had not seen the overwriting and cutting in the cheque Ex.PW5/B. There is one more important point to be discussed here that the accused has said that he had to return the balance money after retaining Rs.60,000/ from the cheque in question to Sushant Dhar. Thus, accused had to return Rs.1,76,875/ to Sushant Dhar. However, accused after withdrawal of Rs.2,07,000/ from his account got prepared two drafts FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 26 of 31 27 from SBI, Cannaught Place Branch amounting to Rs.49,000/ and 20,000/ and two drafts from United Bank of India, Nehru Place branch amounting Rs.49,000/ each Ex.P1 to P4. All these drafts were got issued/ prepared in the name of Sh.Mirnal Kanti Panda, who is father of the accused. A question arises if the accused was innocent and he had to return the balance amount to Sushant Dhar after deducting Rs.60,000/, then, why did he got issued four drafts in the name of his father. The recovery of four drafts Ex.P1 to P4 from the house of the accused, which are in the name of his father, further proves that the defence of the accused is sham. Hence, the accused has failed to establish that the forged cheque was given to him by Sushand Dhar and it is established that the accused had knowledge at the time of presenting the cheque in his bank that it was a forged cheque. The accused had presented the forged cheque in his account in ICICI Bank and got it credited in his account and thereby cheated the ICICI Bank.
31. Ld. Counsel for accused argued that the present complaint Ex.PW7/A was neither lodged by FDCI nor by IPAN. Ld. Counsel further argued that ICICI Bank has no locus to lodge the present complaint, therefore, the complaint itself is not maintainable. Ld. Counsel further submitted that even the complainant had not signed the copy of FIR and as such, the FIR is not proved. I do not find any substance in the submissions of Ld. Counsel for accused as it is well settled law that criminal law can be brought into motion by anyone. In the case in hand, the accused presented a forged cheque in ICICI Bank and get encashed the same in his account and thereby the accused has not only committed forgery, but also cheated FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 27 of 31 28 ICICI Bank as he dishonestly and fraudulently induced the ICICI Bank to encash the cheque in his account. The ICICI Bank had locus to file the complaint Ex.PW7/A. In the absence of such dishonest inducement, the bank would not have credited the cheque in his account. The submissions that the copy of FIR was not signed by the complainant again has no substance because the complainant has proved the complaint Ex.PW7/A, which he made to the police. The FIR only contains the contents of the complaint and non signing of the FIR by the complainant is not of much consequence, particularly when complaint Ex.PW7/A has been proved. Ld. Counsel for accused further submitted that as per the prosecution story, the accused had disclosed in his disclosure statement Ex.PW9/A that he had received the cheque in question by post, but the prosecution failed to establish by whom the cheque was sent to the accused. These submissions again has no substance because the accused has himself admitted that he had presented the cheque in his account. It is also proved that cheque was already forged by the accused at the time of its presentation. Therefore, how did the accused came in possession of the cheque in question is not of much material in the present case. Ld. Counsel for accused further submitted that in seizure memo of cheque Ex.PW7/B, Sh.Vivek Malhotra had been shown as a witness and he had also been shown as a witness in seizure memo of receipt ex.PW7/C. Ld. Counsel further submitted that recovery was effected from the presence of Sushant Dhar, then, how Vivek Malhotra was shown as a witness of seizure memo and receipt. These submissions again have no substance because PW7 has deposed that he had given the cheque in question and three other cheques of Rs.50,000/ each, through which FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 28 of 31 29 the accused had withdrawn Rs.1,50,000/ from the bank, to the IO and IO made a seizure memo of those four cheques and obtained the signature of Vivek Malhotra as he produced the same to the IO. Sh.Vivek Malhotra was also made a witness in seizure memo and receipt Ex.PW7/C because he was present at that time.
32. Ld. Counsel further submitted that the complaint was made on 6.9.2002 by the complainant to SHO, P.S. New Friends Colony and as per the arrest memo of the accused, he was arrested on 6.9.2002 at 5.00 a.m., which shows the accused had been falsely implicated and it is fatal to the case of the prosecution. PW11 IO deposed that on 6.9.2002 at about 2.00 / 2.30 a.m., the complainant Vicky Malhotra came to police station with Aditya Narayan Panda and handed over a complaint to the Duty Officer. After the registration of the FIR, Duty Officer handed over copy of FIR and original complaint to him for investigation. The FIR Ex.PW8/A was registered on 6.9.2002 at 4.00 a.m. as this time was given in the FIR. PW11 further deposed that he interrogated the accused and after interrogation, he had arrested the accused. As per arrest memo Ex.PW11/A, the date and time of arrest is 6.9.2002 at 5.00 a.m., respectively. As the complainant came to police station on 6.9.2002 at about 2.00 / 2.30 a.m. alongwith the accused and made a complaint Ex.PW7/A to the police, therefore, after registration of the case and interrogation of the accused, IO arrested the accused at 5.00 a.m. on 6.9.2002. Hence, I do not find any discrepancy in the arrest of the accused. It is also important to mention here that PW7 has deposed that first he went to P.S. Lodhi Road alongwith accused but he was sent to P.S. FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 29 of 31 30 New Friends Colony and after reaching P.S. New Friends Colony, he made complaint to police Ex.PW7/A. Ld. Counsel for accused further submitted that when the case property i.e. currency notes of Rs.5,550/ were produced in the court, they were without seal, whereas, as per the prosecution story IO had sealed currency notes. Case property was produced during examination of PW9 in a poly bag without seal. PW11 deposed that he had sealed the currency notes i.e. Rs.5,550/, but when the case property was produced, it was without seal. It is a discrepancy in the story of the prosecution. However, it is very minor discrepancy and cannot be considered to destroy the case of the prosecution, particularly when the accused has himself admitted that he had deposited the cheque in question in his account.
33. Ld. Counsel for the accused further argued that as per the bank statement accused withdrew Rs.1,50,000/ by three cheques of Rs.50,000/ each, but as per direction from the Income Tax Department, no one can be permitted to withdraw Rs.50,000/ until and unless, the person is having PAN no. Ld. Counsel further argued that the accused was neither having any PAN no., then, how he was allowed to withdrew Rs.50,000/ in one time. Ld. Counsel further submits that there was deep conspiracy amongst the bankers, police officials and Sushant Dhar. These arguments again have no substance because matter pertains to the year 2002 and whether there was any such direction from the Income Tax Department, then, accused should bring the same in his defence. The rulings relied upon by Ld. Counsel for accused are not applicable to the facts of the present case because the FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 30 of 31 31 accused himself admitted that he had deposited the cheque Ex.PW5/B in his bank and it has been established that he was having knowledge that the said cheque was forged one. So far as the question of recovery of four drafts and Rs.5,550/ from the possession of accused is concerned, from the deposition of PW10 and PW11, it is proved that said drafts and Rs.5,550/ were recovered from the house of the accused i.e. 404, Chirag Delhi, New Delhi and there is no question of planting of said drafts upon the accused as the same were got prepared in the name of father of the accused.
34. In view of the above discussions, I am of the considered view that the prosecution has proved its case beyond reasonable doubts that the accused had presented the forged cheque Ex.PW5/B in his account in ICICI Bank, Branch New Friends Colony and used forged cheque as genuine and further dishonestly induced ICICI Bank to credit the said cheque in his account. Thus, the offences u/s 420/471 IPC stand proved. However, the prosecution failed to prove that the accused had forged the cheque in question by making alteration in place of IPAN by writing his own name. As per GEQD result Ex.PW12/A, expert (PW12) failed to express any opinion that writing 'ADITYA NARAYAN PANDA' marked Q5 in Ex.PW5/B was in the hand of accused. Thus, the accused is acquitted u/s 467/468 IPC. Accordingly, the accused is convicted for offences u/s 420/471 IPC.
Announced in Open Court (PRITAM SINGH )
Dated: 03.07.2014 Additional Chief Metropolitan Magistrate
South East District/Saket Court Complex,
New Delhi/03.07.2014
FIR No. 407/02, P.S. NFC State Vs Aditya Narayan Panda 31 of 31