Delhi District Court
State vs Vivekanand Mishra on 31 January, 2025
Digitally
signed by
PRITU PRITU RAJ
Date:
RAJ 2025.02.03
16:33:54
+0530
IN THE COURT OF SH. PRITU RAJ
JUDICIAL MAGISTRATE-01
KKD COURTS, DELHI.
TITLE: : State v. Vivekanand Mishra
FIR NO. : 140/2008
P.S. : Gandhi Nagar
CNR-NO. : DLET020005102008
Date of commission of offence : 01.04.2005 to 31.03.2008.
Name of Informant/complainant : Mukesh Arora
Name of accused : Vivekanand Mishra
Offence/s complained of : s. 381/408/420/468/471 IPC
Cognizance under section/s :s. 381/408/420/468/471 IPC
Charges framed under section/s : s. 381/408/420/468/471/411 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments : 03.12.2024
Date of pronouncement : 31.01.2025
Final Order : Convicted u/s. 408 IPC
: Acquitted u/s. 381/ 420/468/471 IPC
For the Prosecution : Ld. APP
For the Defence : Sh. K.K. Vaid
Present : Pritu Raj
JMFC.- 01,
KKD Courts, Delhi.
FIR No. 140/2008 State vs. Vivekanand Mishra Page 1/40
JUDGEMENT
1. The accused Vivekanand Mishra is facing trial for offences u/s. 381/408/420/468/471/411 Indian Penal Code, 1860. [Hereinafter 'IPC']
2. Stated succinctly, the facts germane for the prosecution of the case is that the present case was lodged on the complaint of Mukesh Arora, who al- leged that he is one of the partner of firm M/s Kings Export and the same is involved in the Business of Garments and Handicrafts. The firm consists of four partners, namely Manmohan Arora, Mukesh Arora, Renu Arora and Neeraj Arora with Mukesh Arora and Manmohan Arora being the Managing Partners of the firm. The accused is alleged to have been work- ing in the firm as Senior manager (Accounts) since the year 2000 and his job included the maintaining of accounts in computer, Managing bank ac- counts and depositing cheques in bank. All the cheque books, deposit slips and bank statements were in the custody of the accused in the regular course of business with the firm maintaining bank accounts in Citi Bank, OBC, Bombay Mercantile Co-op Bank Ltd and PNB with the bulk of transactions being carried out through Citi Bank and Bombay Mercantile Co-op Bank Ltd for the last five years and the current account number 4344 with OBC Bank Gandhi Nagar being used only for the payment of petty bills and small pay order/demand draft.
Digitally signed by PRITU RAJ PRITU Date:
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FIR No. 140/2008 State vs. Vivekanand Mishra Page 2/40
3. It is claimed that on 31.03.2008, during routine audit, discrepancies were detected by the auditors when these were brought to the notice of the ac- cused, he promised to explain it on 01.04.2008. However, the accused never turned up and the complainant got to know that he had gone to his native place in Jharkhand for some alleged urgent work. Growing suspi- cious, the complainant asked the auditors for thorough verification of all accounts for the financial year 2007-08 and thereupon the complainant got to know that accused had committed acts of cheating, forgery and, in or- der to hide the same, had manipulated the accounts. Complainant alleged that the accused took advantage of the trust of the partners of the firm and had been depositing various cheuqes in current account number 4344, OBC Gandhi Nagar without any knowledge or authorization instead of depositing them with Citi bank or Bombay Mercantile Co-op Bank Ltd. It is also alleged that he withdrew the cash illegally from the account by stealing cheque leaves and forging signatures of one of the partners of the firm i.e. Neeraj Arora.
4. Complainant alleges that on detection of the abovesaid forgery, he started verifying the current account of the previous years and it was found that the same act of forgery, cheating, manipulation of account, illegal deposit of cheque and withdrawal of cash had been committed during the financial year 2005-06 and 2006-07.The accused was again sought to be contacted, Digitally signed by PRITU PRITU Date:
RAJ RAJ 2025.02.03 16:34:36 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 3/40 but he started avoiding the phone calls of the complainant and had been thereafter, absconding. After much deliberation and verification, the com-
plainant alleges that the accused withdrew an amount of Rs. 61,1000/-
from the current account no. 4344 OBC Bank, Gandhi Nagar, from the period of 01.04.2005 to 31.03.2008 without any authorization by the firm.
It was also alleged that old and new cheque books, deposit slips and other documents pertaining to the current account no. 4344 OBC Bank Gandhi Nagar are missing and the same was thought to be stolen by the accused.
Hence the present case.
5. P.S Gandhi Nagar registered an FIR in relation to the above incident bearing no. 140/2008 on 14.06.2008 and, after investigation, submitted the charge sheet on 15.11.2008 against the aforementioned accused person u/s. 381/408/420/468/471 IPC. Cognizance was taken on the same date and ac- cused entered appearance on 18.11.2008. Provision of section 207 Cr.P.C. was complied on 18.11.2008.
6. Charges 381/408/420/468/471/411 IPC were framed and read over to the accused, in Hindi, on 10.06.2009, to which accused denied the incident and claimed to be tried.
7. The prosecution, in order to prove the case beyond all reasonable doubt, examined twenty-one witnesses in support of its case during the course of Digitally signed by trial. PRITU PRITU Date:
RAJ RAJ 2025.02.03 16:34:43 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 4/40
8. PW-01 Smt. Anit Kalra, Manager OBC deposed that on 22.07.2008, she was posted at OBC Bank and on the said date, Inspector Jaipal Singh met her for the purpose of investigation of this case and she provided the at- tested statement of account of CA No. 4344 M/s Kings Export for the year 2005-06 and 2007-08. (Ex. P1, Colly. Running into 08 pages). She further deposed that she handed over 47 original cheques of the CA Account No. 4344 which were taken into possession by the police vide seizure memo Ex. PW1/A, bearing her signature at point A. This witness was duly cross-ex- amined.
9. PW-02 was the complainant who deposed that he is one of the partners of the King Exports situated at A-17/18 X-123, Tagore Street, Ram Nagar, Gandhi Nagar, Delhi and that the firm has four partners namely Manmo- han Arora, Renu Arora, Neeraj Arora and this witness. He deposed that on 31.03.2008, the auditor of the firm came to his office and informed him regarding discrepancies in his account of the firm which he had come to know during routine checking. The auditor told the witness that some of the credit entries of February 2008 regarding deposit of cheques at Citi Bank which were reflected in the Firm's account were not reflected in the statement of account of Citi Bank. This witness deposed that the accused worked in the firm as Senior Manager (Accounts) since 2000 and all docu- ments regarding the accounts such a cheque book, Deposit slips and bank Digitally signed by PRITU PRITU Date:
RAJ RAJ 2025.02.03 16:34:54 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 5/40 statements were in his possession and he used to operate the account of the firm. The accused was also given the authority to write the cheques, de-
posit slips and other documents with regard to maintenance of account of the firm and the current account with OBC bank was only used for the purpose of petty transactions and almost non-functional. This witness de-
posed that the after the auditor informed him about the discrepancies, this witness called the accused who assured him that he looked into the matter and informed him about the same on the next date i.e. 01.04.2008. How-
ever, on the said date, accused did not turn up and he remained absent for the next couple of days consequent to which the complainant sent one offi-
cial from his office to the house of the accused where the official was in-
formed that due to some urgent work, accused had left for his native place and Jharkhand and would re-join after a week. When the accused did not turn up after a week, the witness called up the auditor and asked him to verify the cheque the complete account of the firm and the auditor in-
formed him regarding various discrepancies in the account of the firm and also pointed out that various cheques which were to be deposited at City Bank and Bombay Mercantile Bank were deposited in OBC Gandhi Na-
gar without authorization. This witness deposed that he alongwith Man-
mohan Arora were managing the business and usually remained outside of Delhi and India and it was brought to his notice by the auditor that ac-
Digitally signed by PRITU PRITU RAJ cused had taken advantage of their trust and compete independence given Date:
RAJ 2025.02.03 16:35:07 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 6/40 to him in managing the account of the firm and that the accused used to take out leaves of cheques and forged signatures and encashed the same from the current account of the firm at OBC Gandhi Nagar. This witness deposed that in order to cover up his act of fraud and forgery, the accused used to manipulate the accounts of the firm. This witness further deposed that when the auditor pointed out discrepancies in the accounts of the firm and its bank account for the year 2007-08, he got suspicious and started verifying the accounts for previous year and came to know that the ac- cused was indulged in the manipulation of account and illegally withdraw- ing the money of the firm by forging cheques since financial year 2005-06. This witness further deposed that a total amount of Rs. 61,00,000/- had been illegally withdrawn by the accused during this period and when the accused was tried to be contacted with , it came to knowledge that he had discarded his old mobile number. When the accused was contacted on his new contact number, he promised to come to Delhi and explain the ac- counts but later on he started avoiding the phone calls. This witness fur- ther deposed that for the last five years the practice of the firm had been not to withdraw money from its accounts, manually, to avoid risk in trans- portation and all the cash was being delivered by the Citi Bank at the of- fice promise through their officials. Later on, the complainant came to know that the various old and new cheque books, Bank statements and deposit slips pertaining to the current account no. 4344 were missing from Digitally signed by FIR No. 140/2008 State vs. Vivekanand Mishra PRITU PRITU RAJ Date: Page 7/40 RAJ 2025.02.03 16:35:19 +0530 the office of and the matter was reported to the police vide a complaint and the bank statement of the firm, details of the forged cheques and par- ticulars of the accused were handed over to the accused and the same was seized by the police vide seizure memo. After the filing of the FIR and dur- ing the course of the audit for the financial year 2007-08, the auditor pointed out that some account payee cheques issued from the current ac- count no. 4344 does not pertain to the business of the firm. On verification or records of previous two years, it came to knowledge of the complainant that total 21 accounts payee cheques had been issued from the above said account which did not pertain to the business of the firm. The police was informed vide. application of the complainant dated 27.09.2008 which had been made for 17 such cheques and the brother of this witness i.e. Man Mohan Arora had given information to the police for four other cheques through a separate application. This witness has also handed over one Air- tel bill issued in the name of the accused. This witness has also handed over the GPA executed by his brother Neeraj Arora authorizing the wit- ness for running the Managing of the firm and this GPA along-with atten- dance register seized by the police. This witness further deposed that dur- ing investigation, he came to know that accused had been arrested by the police and during investigation, police required specimen signatures of his brother Neeraj Arora for the purpose of analysis. However, Neeraj Arora could not come to India and upon asking by this witness, sent five sheets Digitally FIR No. 140/2008 State vs. Vivekanand Mishra signed by PRITU PRITU RAJ Page 8/40 Date:
RAJ 2025.02.03 16:35:27 +0530 of specimen signatures which were duly attested by Indian High commis- sion, New York and same was handed over to the Police in May 2009 vide. an application and was seized by the police. This witness further de- posed that during this period while arranging the account books and other documents to reference slips of cheque books of account no. 4344 OBC Bank was found and they were taken into possession by the police. This witness correctly identified the accused in court and deposed that on 28.08.2009, he received a threatening call at around 01.30 pm that the ac-
cused had given a contract of Rs. 20,00,000/- for killing this witness and his family members and the caller advising him not to depose in court or opposed the bail application.
10. PW-02 relied on the following documents:-
(i) Ex. PW-2/A being the complaint to Police.
(ii) Ex. PW-2/B being the seizure memo of Bank Statement, forged cheques and details of accused.
(iii)Ex. PW-2/C being the complaint dated 27.29.2008, about 17 A/c payee cheques which did not pertain business of the firm.
(iv)Ex. PW-2/D, being the Airtel bill in the name of the accused.
(v) Ex. PW-2/E being the seizure memo of register and GPA.
(vi) Ex. PW-2/F, being the application vide which five sheets of specimen signatures of Neeraj Arora was handed over to the Police.
(vii) Ex. PW-2/G being the seizure memo qua Ex. PW 2/F.
(viii) Ex. PW-2/H being the seizure memo qua two reference slips of cheque books of account no. 4344 OBC.
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11. PW-03 Manmohan Arora deposed that he is a partner in M/s King Ex- ports, situated at A-17/18 X-123, Tagore Street, Ram Nagar, Gandhi Na- gar, Delhi and the accused was working the firm since the year 2000 draw- ing his last salary at Rs. 9000/- per month. This witness deposed that the firm was having bank accounts with Citi Bank, OBC, Bombay Mercantile Co-op Bank Ltd and PNB. This witness deposed that they had full trust upon the accused and he was handling all the account's work of the firm and all cheque books, deposit slips and bank statement were in his posses- sion during the course of his duty. This witness deposed that during rou- tine audit in March 2008, the CA pointed out the discrepancies in the ac- counts of the firm and he deposed that various cheques which had to be deposited with Citi Bank and Bombay Mercantile Bank were deposited with OBC Gandhi Nagar which was used for petty transactions and it came to light that the accused had embezzled an amount of Rs. 61-65 lacs. When the complainant i.e. PW-2 came to know about this fact, the ac- cused did not turn up back to the firm and PW-2 reported the matter to the police leading to the registration of FIR. On 18.09.2008, this witness was called to the Police where the accused was present and the specimen signatures/hand writing of the accused was taken on the plain paper in this witness' presence. This witness deposed that during verification by the CA, it came to light that certain cheques used by the accused in name of certain companies had no relation with the firm and this witness informed the po-
Digitally signed by PRITU PRITU RAJ FIR No. 140/2008 State vs. Vivekanand Mishra RAJ Date:
2025.02.03 Page 10/40 16:35:47 +0530 lice regarding four cheques vide an application. On 02.05.2009, his brother Mukesh Arora handed over two reference slips of OBC of ac-
counts number 4344 to the police which was seized by them. On the same day, Mukesh Arora also handed over specimen signatures of Neeraj Arora which were seized by the police vide seizure memo and this witness de-
posed that he can identify the signatures of Neeraj Arora as he has seen him writing and signing during the ordinary course of business. This wit-
ness relied upon the following documents:-
(i) Ex. PW-3/A being the specimen hand writing of accused.
(ii) Ex. PW-3/B, being the complaint about four A/c payee cheques which did not pertain business of the firm.
(iii) Ex. PW-3/X and PW 3/Y, being the reference slips.
(v) Ex. PW-3/Z being the specimen signature of Neeraj Arora.
12. PW04 S.K Jain deposed that in the year 2008, he was the Manager In Vaish Co-op Adarsh Bank Ltd, at Laxmi Nagar Shakarpur Branch. On 21.10.2008. the bank received a notice u/s. 91 Cr.PC issued by the SHO PS Gandhi Nagar which was replied by him on 22.10.2008 and submitted to the SHO on 23.10.2008. this witness send statement of account of creative computer of current account no. 1317 of Shakarpur Branch which was duly attested by Bank Official. This witness relied upon the following doc-
uments :- Digitally
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(i) Ex. PW4/A being the reply to notice u/s. 91 Cr.PC. +0530
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(ii) Mark X being the notice u/s. 91 Cr.PC.
(iii) Ex. PW4/B being the duly attested statement of account of creative computers of current account no. 1317.
13. PW-05, A.K. Bansal deposed that on 15.10.2008, he was posted at Chief Manager OBC Branch Office, Gandhi Nagar. He deposed that King Ex- port had an account in his branch at Gandhi Nagar, the account number of which he could not remember. He deposed that on asking of Police offi- cials, he handed over 14 cheques at one time and four cheques at the other time to the police officials. He deposed that he received notice u/s.91 CrPC on 19.07.2008 from SHO PS Gandhi Nagar, another notice u/s. 91 Cr.PC dated 24.09.2008 and another notice u/s. 91 Cr.PC on 06.10.2008. He de- posed that the seizure memo of 14 cheques was prepared by the IO Inspec- tor Jaipal Singh. He deposed that he sent a letter dated 08.11.2008 to SHO PS Gandhi Nagar providing statement of account of M/s. Kataria Sales Corporation. He deposed that he had seen the 18 original cheques of OBC Bank which were handed over by him to SHO PS Gandhi Nagar and the same are already Ex. PW Ex 5/A and Ex .PW5/B. This witness had also handed over the original account opening form alongwith partnership deed of M/S King Exports.
14. This witness relied upon the following documents :-
(i) Ex. PW5/A being the seizure memo of 14 cheques handed over to the Po-
lice. . PRITU Digitally signed by PRITU RAJ Date: RAJ 2025.02.03 16:36:14 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 12/40
(ii) Ex. PW5/B, being the the seizure memo of 04 cheques handed over to the Police.
(iii) Ex. PW5/D, being notice dated 19.07.2008,
(iv) Ex. PW5/E, being notice u/s. 91 Cr.PC Dated 24.09.2008.
(v) Ex. PW5/F, being notice u/s. 91 Cr.PC Dated 06.10.2008.
(vi) Ex. PW5/G, being the seizure memo of 14 cheques seized by Inspector Jai Pal Singh.
(vii) Ex. PW5/H, being letter dated 08.11.2008 to SHO PS Gandhi Nagar providing statement of account of M/S Kataria Sales Corporation.
(viii) Ex. PW5/H-1 to Ex. PW5/H-18, being original cheques.
(xi) Ex. PW5/J, being the original account opening form.
(x) Ex. PW5/K (Colly) being the original parter deed.
15. PW-06, Ashish Saraswat deposed that on 21.10.2008, he was posed at Preet Vihar Branch as Customer Server Manager at ICICI Bank and on that day, he received a notice u/s. 91 Cr.PC dated 21.10.2008 regarding clearance of cheques of M/s King Exports, OBC Gandhi Nagar, Account No. 4344. He deposed that he submitted his detailed report on 07.11.2008 and also gave the statement of account no. 003705006006. He also submit- ted the photocopy of account opening form of CARODA/C- 003705006006 alongwith the photocopy of the ID proof and covering let- ter dated 12.11.2008. This witness relied upon the following documents :-
(i)Ex. PW6/A being the notice u/s. 91 Cr.PC dated 21.10.2008.
(ii) Ex. PW6/B, being the detailed report dated 07.11.2008.
(iii) X-6 being the statement of account no. 003705006006. Digitally signed by PRITU PRITU Date:
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(iv) Ex. PW6/D, being the original account opening form of CARODA/C- 003705006006.
(v) X-8 being the photocopy of ID proof.
(vi) X-9 being the covering letter dated 12.11.2008 vide Ex. PW6/C.
16. PW-07 Sh. Ashok Kumar deposed that on 07.11.2008, he was posed as Manager (Finance), BSES and on the said date he received a notice u/s. 91 Cr.PC dated 21.10.2008 by the SHO PS Gandhi Nagar regarding clear- ance of cheque no. 419340 dated 20.06.2007 against BYPL CR No. 1260050105 of amount of Rs. 5870/- of M/s King Exports, OBC Account No. 4344. He deposed that he submitted his detailed report No. D/CPC19295 dated 07.11.2008. This witness relied upon the following documents :-
(i) Ex. PW7/A, being notice u/s. 91 Cr.PC date 21.10.2008.
(ii) Ex. PW7/B, being the detailed report no. D/CPC19295 dated 07.11.2008.
17. PW-08, Sh. Rajeev Aggarwal deposed that he is running a shop in the name and style of M/s Creative Computers for around 15 years. This wit- ness correctly identified the accused and stated that in the year 1995, there was a building adjacent to his shop were office of one CA namely Sh. N.K. Biyani was located were Vikanand Mishra (accused) used to learn ac- count's work and also did petty official work of Sh. N.K. Biyani. He de- posed that accused used to come to him for repairing of computers or in Digitally signed PRITU byDate:PRITU RAJ RAJ 2025.02.03 16:36:32 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 14/40 connection with some zerox work at the instance of Sh. N.K. Biyani. He deposed that later on the accused left the job at Sh. N.K. Biyani's office and joined new office as M/s King Export at Gandhi Nagar, but he kept on visiting this witness for getting the work of repair of computers at M/s. King Exports being done. He deposed that one fine day, accused came to him and told him that he was dire need of money and this witness gave him Rs. 45,000/- in the year 2005. Out of the amount of Rs. 45,000/-, the accused returned some amount in cash and given him a cheques of Rs. 10,200/-. this witness did not remember the cheques number but correctly identified the cheque shown to him. This witness produced the original re- ceipt bearing no. 712 dated 29.08.2006. alongwith photocopy of the same which was handed over to the accused after receiving the cheque no. 419308 of Rs. 10,200/-. This witness also brought the original bank deposit slip of Vaish Co-operative Adarsh Bank Ltd, Sharkarpur Branch,Delhi dated 26.08.2006. This witness relied upon the following documents:-
(i)Ex. PW8/A being the Cheque no.419308.
(ii)Ex. PW8/B, being photocopy of receipt no. 712 dated 29.08.2006.
(iii) Ex. PW8/C, OSR) being the original bank deposit slip of Vaish Co-op-
erative Adarsh Bank Ltd, Sharkarpur Branch,Delhi dated 26.08.2006.
18. PW09, Anil Kataria, deposed that he is having a business of Sales of Elec- tronic items at 513/26, Main Bazar, Gandhi nagar, Delhi-31. He deposed PRITU Digitally signed by PRITU RAJ Date: 2025.02.03 RAJ 16:36:40 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 15/40 that accused used to come to his shop to purchase goods and he had pur- chased a Samsung washing machine for Rs. 6700/- on 24.02.2007, a Sam- sung TV of Rs. 5800/- on 02.03.2007 and had given two cheques of Rs. 6200 and 6300/-, but this witness did not remember the number of these cheques. He deposed that on 02.02.2006, accused purchased the Sony handy camera of Rs. 15990/- and gave a cheque of Rs. 15000/- and Rs. 990/- in cash. He deposed that he handed over a photocopy of above printed bills and had signed the same. Apart from this, the accused also purchased some electronic items and gave a cheque of Rs. 18600/- which was dishonored and the said amount remains unpaid. The statement of this witness was recorded by the IO on 08.11.2008. This witness produced the carbon copy of bill no. 2698 dated 02.02.2006 of Rs. 15990/- bearing his signature at point A and B. This witness produced original bill bearing no. 7508 dated 24.02.2007 of Rs. 6700/-. This witness could not produce the carbon copy of bill number 7534 dated 02.03.2007 of Rs. 5800/- and correctly identified the accused. He relied upon the following documents:-
(i) Ex. PW9/A, being carbon copy of bill no. 2698 dated 02.02.2006.
(ii) Ex. PW9/B, being the original bill bearing no. 7508 dated 24.02.2007 of Rs. 6700/-.
(iii) Mark 9A, being the photocopy of carbon copy of bill 7534 dated 02.03.2007.Digitally signed
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19. PW-10, Limji Bhai recorded the FIR No. 140/2008 on the basis of rukka handed over by Inspector Jaipal Singh on 14.06.2008. Copy of FIR is Ex. PW10/A and endorsement on rukka made by this witness is Ex. PW 10/B.
20. PW-11, Rajesh Kumar Gupta deposed that in 2008, he was working as In- come Tax Officer at Ward No. 46 (3), room no. 491, Mayur Bhawan Delhi and on 07.11.2008, he supplied the certified copy of ITR for assessment year 2006-07 of the accused with PAN AGGPM3484J. He deposed that record of assessment year 2002-03 to 2005-06 was not available to him. This witness stated that he wrote a letter with regard to supply of certified copies and stated that he does not know who is assessee of the aforesaid income tax returns. He deposed that the original ward 46 (3) was not un- der his charge during the period from 2002-03 to 2005-06. He deposed that he was the Assessing Officer of Ward no. 46(4) for the said period and Ward no. 46(3) was given to him as additional charge for 15 days during which he issued the ITR of assessment year 2006-07. He deposed that he is not connected or concerned with the ITR of PAN No. AGGPM3484J for assessment year 2002-03 to 2005. this witness relied upon the following documents:-
(i) Ex. PW11/A, being the certified copy of Income Tax Return for assess- ment years 2006-07 of accused.
(ii) Ex. PW11/B, being letter with regard to supply of certified copies.
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21. PW-12, ASI Satyapal Singh deposed that on 16.06.2008, he joined the in- vestigation of the present case with Inspector Jaipal Singh. He, alongwith Jaipal Singh went to the office of the complainant, namely Mukesh Arora, which was located at A1718, X/123, Tagore Gali, Ram Nagar, Gandhi na- gar, Delhi, where the complainant met him and IO inquired him about forged cheques and details of cheque pertaining to the period of 2005-06, 2006-07 and 2007-08 were provided. The IO seized the details provided by Mukesh Arora vide seizure memo which is already Ex. PW2/B and details were contained in 03 pages marked as Mark A-1 to Mark A-3. He deposed that on 12.09.2008, he alongwith Ct. Kuldeep and Ct. Manoj went to the native village of accused for execution of NBW and reached there on 13.09.2008 and recorded their presence in the concerned PS. On inquiry, it was revealed that accused had no fix time of going to home. He deposed that on 14.09.2008, at about 03.45 am, the accused was apprehended from his house and his personal search was conducted and he was brought to Delhi on 17.09.2008 vide. Transit Remand after taking permission from the concerned CJM. The accused was taken to home i.e. A-644, Gali No. 10, Sonia Vihar, Delhi from where he got recovered cheque books contain- ing the details of the issued cheques from Sl. No. 418501-418600 of OBC Bank pertaining to account no. 4344 for King Exports. The said book was seized vide Seizure Memo. Subsequently, the accused was medically exam- ined and sent to Lock-up. He deposed that on 18.09.2008, the accused was PRITU RAJ Digitally signed by PRITU RAJ FIR No. 140/2008 State vs. Vivekanand Mishra Page 18/40 Date: 2025.02.03 16:37:08 +0530 taken out of lock-up and his signatures and hand writing were taken on 31 sheets which are already Ex. PW3/A (Colly) and this witness correctly identified the accused.
(i) PW-12 relied upon the following documents:
(ii) Ex. PW12/A, being the arrest memo.
(iii) Ex. PW12/B, being the personal serach memo.
(iv) Ex. PW12/C, being the cheque no. 418501-418600 which were seized.
(v) Ex. PW12/D being the cheque book.
22. PW-13 Ct. Surender deposed that on 12.07.2008, he joined the investiga- tion of the present case alongwith the IO Jaipal Singh and went to OBC Bank Gandhi Nagar where the Manager of the branch Ms. Anita Kalra was interrogated and she provided the details of current account no. 4344 of King Exports pertaining to period 2005-06 to 2007-08 on eight papers and also provided 47 original cheques which were seized by the IO vide seizure memo which is already Ex. PW1/A. This witness deposed that thereafter, he joined the investigation on 15.10.2008 and visited OBC where the Chief Manager, Sh. A.K. Bansal provided 14 original cheques pertaining to account 4344 of King Exports, Gandhi Nagar, Delhi which were seized vide. seizure memo which is already Ex. PW5/G. This witness deposed that he again joined the investigation with the IO and the Chief Manager Sh. A.K. Bansal produced four cheques and original opening form alongwith partnership deed of M/s. King Exports which was seized Digitally signed PRITU by PRITU RAJ Date:
RAJ 2025.02.03 16:37:20 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 19/40 by the IO vide. seizure memo which is already Ex. PW5/C. This witness re-
lied upon the following documents:-
(i) Ex. P-1 to Ex. P-47, being the 41 cheques seized by the IO produced by Smt. Anita Kalra.
(ii) Ex. P-48 to P-55, being the details of statement of accused.
(iii) Ex. P-56 to P-69, being the 14 original cheques handed over by Sh. A.K. Bansal on 15.10.2008.
(iv) Ex. P-72 to P-73, being the four cheques seized by the IO.
(v) Ex. PW13/A, being the seized account form
(vi) Ex. PW 5/K, being the partnership deed.
23. PW14, Ct. Kuldeep deposed that on 12.09.2008, he joined the investiga-
tion of the case alongwith HC Satyapal and Ct. Manoj went to the native village of the accused for execution of NBWs. The accused was appre- hended on 14.09.2008 and Tansit Remand of 06 days was obtained, where- upon he brought to Delhi. He deposed that the accused disclosed that he had withdrawn money using forged cheques of Neeraj Arora and he can get the recovered blank cheque book of those cheques. Pursuant to the dis- closure, the accused took this witness to his residence at Sonia Vihar and a cheque book was recovered from the house of accused and same was seized by HC Satyapal vide seizure memo which is already Ex. PW12/C. This witness also correctly identified the cheque book i.e. PW12/D (Colly).
24. PW-15 Ct. Manoj Kumar deposed that on 13.09.2008, he was posted at Gandhi Nagar and he had gone to Jharkhand for the arrest of accused and Digitally signed by PRITU PRITU RAJ Date:
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the accused was arrested on 14.09.2008 at about 03.45 pm and his personal search was conducted. Thereafter six days transit remand was obtained to reach Delhi. On 17.09.2008, HC Satyapal interrogated the accused, on which, he disclosed that he had withdrawn the money from bank after forging the signatures of Sh. Neeraj Arora. The accused also disclosed that he had kept the remaining blank cheques at his house in Sonia Vihar. The IO Satyapal recorded the disclosure statement of this accused and the cheque books was seized vide seizure memo which is already Ex. PW12/C. This witness relied upon Ex. PW15/A which is the disclosure statement of the accused.
25. PW-16 HC Gupteshwar Rai, he deposed that on 13.09.2008, he was posted at PS Mustafil, Jharkhand as HC and on that day, three police officials from Delhi Police reached his PS alongwith arrest warrant of the accused. He deposed that he accompanied the officials from Delhi Police to the house of the accused where he was arrested by the police officials of Delhi Police vide arrest memo Ex. PW 12/A and his personal search was con- ducted vide memo Ex. PW12/B. After arrest, they all came back to the PS Mustafil, Jharkhand alongwith accused and this witness accompanied Delhi Police officials to District Court, where six days remand was ob- tained and accused was sent to lock-up.
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26. PW-17 Chander Shekhar was the Nodal officer from Bharti Airtel who produced clarifications/rules regarding preservation of CDR record/will- ing details which was Ex. PW17/A. He deposed that as per policy, billing details are maintained for maximum 03 years and hence summoned record are not available.
27. PW 18, IO Inspector Jaipal Singh deposed that on 14.06.2008, he was posted at Gandhi Nagar. On that day, he received the complaint of Mukesh Arora, and he made endorsement on the complaint at point A. Accordingly, the present FIR was registered on the complaint. He de- posed that the complainant had given the photocopy of bank statement of the years 2005-06 to 2007-08 and details of forged cheques and particulars of the accused who was correctly identified by this witness. He deposed that on 16.06.2008, complainant handed over to him the details of forged cheques of current account no. 4344 OBC Bank, Gandhi Nagar, in origi- nal running in 03 pages of financial year 2005-06 (Marked A-1), 2006-07 (Marked A-2) and 2007-08 (Marked A-3), which were seized by the seizure memo Ex. PW2/B. Thereafter, notice u/s. 91 Cr.PC was served to the Chief Manager OBC Gandhi Nagar Branch for providing the false cheques of account no. 4344 of M/S Kings Export Gandhi Nagar, Delhi which was Ex. PW 18/B and the bank statement of current account no. 4344 which is already Ex. PW5/D. He deposed that on 12.07.2008, he went to OBC Digitally signed PRITU by PRITU RAJ Date:
RAJ 2025.02.03 16:37:45 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 22/40 Bank, Gandhi Nagar where Manager Ms. Anita Kalra handed over the account statements of current account no. 4344 in eight pages alongwith the 47 cheques which were forged by the accused. This witness prepared the seizure memo which is already Ex. PW 1/A with the bank statement Ex. P-48 P-55 (colly), 47 cheques being Ex. P-1 to Ex. P-47. (Colly).
Thereafter, on 27.08.2008, this witness obtained the N.B.W. of the accused from the concerned court and case file was handed over to HC Satypal Singh who alongwith staff proceeded to Jharkhand in search of accused.
On 17.09.2008, HC Satyapal returned alongwith accused and on 18.09.2008, HC Satpal handed over the case file to him whereupon, this witness interrogated the accused and sent him to lock up. Thereafter, the complainant Manmohan came to the PS to know about the progress of his case, whereupon the witness obtained the specimen hand writing and spec-
imen signatures of the accused on 31 sheets which is already Ex. PW 3/A. Thereafter, the accused was produced before the concerned court and sent to JC. This witness also received letter of King Export company through reader to SHO which is already Ex. PW3/B. This witness further deposed that on 24.09.2008, he alongwith Ct. Surender visited OBC Gandhi Nagar where he served notice u/s. 91 Cr.PC upon the Manager of the Branch which is already Ex. PW5/E. Thereafter, on 29.09.2008, reader to SHO handed over to him letter of King Export regarding 17 forged cheques by PRITU RAJ accused which is already Ex. PW 2/C. This witness further deposed that on Digitally signed by PRITU RAJ Date:
2025.02.03 16:37:54 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 23/40 06.010.2008, he served notice u/s. 91 Cr.PC upon the Chief Manager, OBC Gandhi Nagar which is already Ex PW 5/F for supplying of original cheques mentioned in the exhibit and on 15.10.2008, he visited OBC Bank and collected 14 original cheques from the Chief manager and seized them vide seizure memo which is already Ex. PW5/G. This witness further served notice dated 21.10.2008 u/s 91 Cr.PC, which is already Ex. PW6/A, to Manager ICICI Bank, Preet Vihar for providing details of chques no.
418593 dated 20.04.2006, and reply of the same was received on 12.11.2008, which is already Ex. PW6/C. Thereafter, on 21.10.2008, he visited Vaisya Bank, Co-operative bank, Laxmi nagar and served notice u/s. 91 Cr.PC which is already Mark X and reply was received on 23.10.2008 which is already Ex. PW4/A. Thereafter, on 07.11.2008, this witness served notice u/s. 91 Cr.PC on Manager of BYPL Ltd East Delhi which is already Ex. PW 7/A and reply was received which is Ex. PW7/B. This witness served notice dated 06.11.2008, upon Income Tax Officer, Ward No. 43 (2) ITO Delhi which is already Ex. PW 18/Z-1 and another notice u/s. 91 Cr.PC on the same date upon Income Tax Officer Ward no. 46 (3) ITO Delhi which is already Ex. PW 18/Z-2. This witness deposed that on 07.11.2008, he visited the Office of Income Tax officer, Ward No. 46(3), Mayur Bhawan ITO and collected reply of his notice which is Ex. PW 11/B together with the ITR which his Ex. PW 11/A alongwith other PRITU relevant documents including Ex. PW 17/A and the attested copy of other RAJ Digitally signed by PRITU RAJ FIR No. 140/2008 State vs. Vivekanand Mishra Page 24/40 Date: 2025.02.03 16:38:04 +0530 relevant documents i.e. ITR. He further deposed that on 21.10.2008, he served notice u/s. 91 Cr.PC upon the Manager of Vodafone which is Ex. PW18/Z-3 and upon the Manager of Airtel which is Ex. PW 18/Z-4. On 08.11.2008, he again visited OBC and collected four original cheques vide seizure memo which is already Ex. PW 5/C. On 12.11.2008, he obtained authority letter from office of DCP (EOW) New Delhi and deposited all documents with office of FSL Rohini and subsequently the statement of all witnesses were recorded by him and charge sheet was prepared and filed. This witness correctly identified the accused.
28. PW-19, Jai Bagwan Sharma deposed that he was running a furniture shop named Ankur Furniture House, Shop No. 1449/3 Jagjeevan Vihar since 1993. He, correctly identifying the accused, stated that accused had worked with his CA namely N.K. Biyani and came to his shop in June 2007 for purchase of furniture. He purchased two diwans which were worth Rs. 6000/- approximately and made payment through cheques. This witness accepted the cheques and since he was in a hurry to make payment of his electricity/dues accepted the cheques in the name of BSES for paying electricity bill and gave the original electricity bill to the accused for pay- ing the same while requesting him the bill amount of Rs. 5870/- through cheques with BSES office. Police inquired from this witness for payment and consequently, this witness handed over the copy of electricity bill PRITU RAJ Digitally signed by PRITU RAJ Date: 2025.02.03 16:38:13 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 25/40 which is Ex. PW 19/A and also handed over the written reply to the IO which is Ex. PW 19/B.
29. PW -20 Ms. Meenakashi Aggarwal was the summoned witness who brought statement of account of the accused bearing saving bank account no. 30310012375 from 01.01.2008 to 25.04.2008, running in four pages. Same was Ex. PW 20/A.
30. PW-21 Sh. Pawan Singh who brought computer generated subscriber de- tails record from Vodafone Idea Ltd pertaining to mobile connection no. 9899803335 which was issued in the name of the accused Vivekananda Mishra bearing address M/s King Export, A17-18 G/Flats Plot No. X/123, Rahul Building, Tagore Gali, Ram Nagar, Gandhi Nagar, Delhi-31. Same is Mark PW 21/X. This witness did not bring any record pertaining to payment made by connection holder with respect to the bills for the us- age of connection as stated that the said record would be available with the office of Finance head office at A-19 Mohan Cooperative Industrial Estate, Mathura Road, Sarita Vihar, New Delhi.
31. Evidence on behalf of the prosecution was closed vide order dated 27.07.2018. All the incriminating evidence which had come in evidence against the accused was put to him vide. SA recorded under s. 313 Cr.P.C. on 04.05.2019 wherein the accused chose not to lead DE.
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32. Final arguments were heard on behalf of both sides and the matter was fixed for judgment. Both parties also filed written submissions.
APPRECIATION OF EVIDENCE
33. In criminal proceedings, the case of the prosecution must be proved beyond all reasonable doubt. Suspicion, however strong, cannot take the place of reasonable doubt and an accused is innocent unless proved guilty. (Raja Naykar v. State of Chattisgarh 2024 INSC 56). With this backdrop, this Court will proceed to examine whether the prosecution has proved it's case against the accused beyond all reasonable doubt. Determination qua s. 408 IPC
34. The first charge against the accused is u/s 408 IPC. Section 408 IPC reads as follows:
408. Criminal breach of trust by clerk or servant.--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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
35. The term criminal breach of trust has been defined in section 405 IPC as follows: Digitally signed by PRITU PRITU Date:
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405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, 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 willfully suffers any other person so to do, commits "criminal breach of trust".
36. s. 408 IPC is a special category of offence which criminalizes criminal breach by clerk/servants. The accused has been charged of committing criminal breach of trust while being entrusted with property in the capacity of a clerk or servant. It is claimed that between 01-04-2005 to 31-03-2008, he was entrusted with cheque no. 368706 and two cheque books and that criminal breach of trust was committed by him qua the said property.
37. In order to successfully bring home the charge u/s 408 IPC, it is imperative to prove - (i) entrustment by one person to another of property or dominion over property, (ii) misappropriation or conversion to his own use by person who received the property, (iii) such conversion or misappropriation is in violation against or in violation of any direction, or law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust, and, (iv) person to whom property was entrusted had received it being a clerk or servant or being employed as one.
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38. The Hon'ble SC in Ram Narayan Popli v. CBI, (2003) 3 SCC 641 , while dealing with the offence of criminal breach laid down the test which needs to be satisfied qua the offence of criminal breach of trust as follows:
361. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him, that amounts to a criminal breach of trust as defined by Section 405. The section is relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust.
365. As noted by this Court in Jaikrishnadas Manohardas Desai v. State of Bombay [AIR 1960 SC 889 : 1960 Cri LJ 1250] to establish the charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted if proved, may, in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion.
39. The Honb'le Supreme Court in Somnath Puri vs. State of Rajasthan (1972) 1 SCC 630 while dealing with the term 'entrusted' held as follows:-
Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. The words 'in any manner' in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount PRITU Digitally signed by PRITU RAJ RAJ Date: 2025.02.03 16:38:49 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 29/40 recieved must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to, deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression 'entrusted' in section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. The ingredient the offence of criminal breach of trust is that the accused had dishonestly misappropriated or converted to his own use the property in question. The word dishonestly as defined in s. 24 IPC is the intentional doing of any act causing wrongful gain to one person or wrongful loss to another.
40. Now adverting to the facts of the present case, the accused has been charged of committing criminal breach of trust qua cheque no. 368706 and two cheque books having leaves bearing no. 418501 to 418600 and 419301 to 419400. The first ingredient required to be proved is that the aforesaid was entrusted to the accused by the complainant. In order to discharge the said burden, the complainant had examined himself as PW-02 and stated that the accused had been working in his company since the year 2000 in the capacity of Senior Manager (Accounts) and all documents regarding the account i.e. cheque books, deposit slips, bank statements etc were in possession with him being given the authority to write cheques, deposit slips and other documents with regard to maintenance of account of the firm. This witness was cross examined at length by the accused and nothing untoward has come in his cross examination to shake the veracity Digitally signed by PRITU PRITU Date:
RAJ RAJ 2025.02.03 16:39:00 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 30/40 regarding the entrustment of cheque books belonging to the firm to the accused. The same has been reiterated by PW-03 and as was the case with PW-02, the veracity of this witness qua the factum of entrustment of cheque book could not be shaken up. Hence the factum of entrustment of the cheque books alongwith cheque no. 368706 to the accused stands duly proved.
41. The second requirement to be proved is the misappropriation or conversion to his own use by the accused. As stated above, the accused had been entrusted with two cheque books which had cheque leaves bearing no. 418501 to 418600 and 419301 to 419400. Alongwith another cheque no. 368706. Hence, for the purposes of this case and as per the charges u/s. 408 IPC framed against the accused, he had been entrusted with at least 201 cheques. The misappropriation or conversion to his use of any of them would make the accused liable for the offence of criminal breach of trust. In this regard, as held in the decision of Hon'ble Apex Court State of HP vs. Karanvir (2006) 5SCC 381 , once entrustment is proved, it is for the accused to prove the mode in which the property so entrusted to him was dealt with by him and once the entrustment has been proved, the burden would lay upon the accused to prove the same.
42. Similarly, the Apex Court in Ram Gopal vs State of Madhya Pradesh (2003 SCC online SC158 has held even through the primary burden of proving Digitally signed PRITU by PRITU RAJ Date:
RAJ 2025.02.03 16:39:09 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 31/40 the guilt of the accused lies on the prosecution, if any fact is within the knowledge of any person, which would be the accused herein, the burden of proving the fact is upon the said person. As observed above, no evidence has been led by the accused to prove the mode in which the property entrusted to him by the complainant was dealt by the accused.
43. In the present case, 18 bearer cheques exhibited as Ex. PW5/H-1 to PW5/H-18 (Colly) had been deposited with Oriental Bank of Commerce Gandhi Nagar Branch for varied amounts like cheque no. 419335 for Rs.
1604/-, cheque no. 419332 for Rs. 925/-, cheque no. 419331 for Rs. 6300/-, cheque no. 419330 for Rs. 6200/-, cheque no. 419312 for Rs. 1754/-, cheque no. 419308 for Rs. 10,200/-, cheque no. 418593 for Rs. 10200/- cheque no. 418592 for Rs. 16000/- cheque no. 419372 for Rs. 1540/- etc. The accused had not led any evidence to show as to how was the amount mentioned in these cheques were used and spent. Similarly, cheque no. 418593, drawn on OBC, which was entrusted to the accused being the part of the cheque book having cheque leaves no. 418501 to 418600, was used in payment of installment of Rs. 10,200/- towards the car loan account no. 003705006006 belonging to accused Viveknand Mishra. The same is duly corroborative from the testimony of PW-06 Sh. Ashish Saraswat, Customer Service Manager, ICICI Bank who produced the statement of Digitally signed by PRITU PRITU Date:
RAJ RAJ 2025.02.03 16:39:17 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 32/40 account from 01.04.2006 to 30.04.2006 (Mark X-6) alongwith his reply to notice u/s. 91 Cr.PC issued by the SHO PS Gandhi Nagar.
44. Similarly, cheque no. 419308, (Ex. PW 8/A) for an amount of Rs. 10,200/-
was given by the accused to Sh. Rajeev Aggarwal, who is a public witness, for the part payment of total loan of Rs. 45,000/-, despite the said cheque being handed over/entrusted to the accused and the same amounts to conversion of the said cheque to the accuseds' own use by him. This witness was cross examined by the accused but his veracity could not be shaken in cross examination and there is no reason to disbelieve his testimony.
45. Another instance of misappropriation of the cheques entrusted to the accused is the misappropriation of cheque no. 419340 dated 20.06.2007 drawn on OBC Gandhi Nagar, account no. 4344 against BYPL CR No. 1260050105 for Rs. 5870/-. In this regard, PW Jai Bhagwan Sharma, who was examined as PW-19 stepped into the witness box and deposed that the accused had purchased two diwans from the shop of this witness for an amount of Rs. 6000/- and offered to pay the said money by cheque as he did not have any cash. This cheque was used by PW19 to clear his electricity bill, BSES by giving the electricity bill to the accused and requesting him to deposit the cheque with BSES office. The veracity of this witness could not be shaken in cross examination and his testimony was Digitally signed PRITU by PRITU RAJ Date: RAJ 2025.02.03 16:39:25 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 33/40 further corroborated by PW 07, Sh. Ashok Mathur, who deposed that he was the Manager (Finance) BSES on 07.11.2008 and he furnished his reply to notice u/s. 91 Cr.PC issued by SHO PS Gandhi Nagar to the effect that the cheque no. 419340 for Rs. 5870/- drawn on OBC Bank was credited to account of Sh. Jai Bhagwan against CRN No. 1260050105. This witness was cross examined by the accused but his veracity could not be shaken in cross examination and there is no reason to disbelieve his testimony.
46. In light of the aforesaid observation, this court is of the considered opinion that the accused had, among other cheques, had misappropriated the aforesaid cheques i.e. Ex. PW5/H-1 to Ex. PW5/H-18, cheque no. 418593, cheque no. 419340 and cheqeue no. 419308 towards his own use.
47. As regards the last ingredient of the accused being employee as clerk or the servant, the same is accepted the accused in his statement u/s. 313 CrPC as well as from the deposition from PW 02 and PW 03 who are the parters of the complainant firm. The factum of the accused being an employee of the complainant is himself admitted by him.
48. In light of the aforesaid discussion, this court has no hesitancy in holding that the prosecution has been able to prove the requirements of the offence of Criminal Breach of Trust committed by a clerk/servant. The accused is hereby convicted of the offence u/s. 408 IPC.
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49. The accused has been charged of committing offence u/s. 420 IPC and it is alleged that between 01.04.2005 to 31.03.2008, he cheated OBC Bank by handing over various forged cheques for encashment on various occasions. The accused has also been charged of committing forgery qua the aforesaid cheques for the purpose of cheating and has been charged for offence u/s. 468 IPC. Additionally, it is alleged that between the aforesaid period, the accused fraudulently, dishonestly, used the above-mentioned cheques as genuine or knowing for having reason to believe them to be forged and has been charged for offence u/s. 471 IPC.
50. The essentials required to be proved for bringing home a charge u/s. 420 IPC, as held in N. Raghavender v. State of A.P., (2021) 18 SCC 70, are as follows:-
It is paramount that in order to attract the provisions of Section 420IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence i.e. (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. It goes without saying that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.
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51. Similarly, to bring home a charge u/s. 468 IPC i.e. forgery for the purpose of cheating, the following requirements, as held in Ram Narayan Popli v. CBI, (2003) 3 SCC 641, are required to be satisfied:
The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false, (ii) is it made by the accused, and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty
52. As regards section 471 IPC which punishes using as genuine a forged document, the requirement to be proved are (i) the document or electronic record is forged, (ii) accused knows or has reason to be believed such document or electronic record is forged (iii) accused may be used of the said document or electronic record despite knowing it to be forged.
53. As regards the charge u/s. 420 IPC, it was imperative to prove that deception was practiced by the accused and said deception resulted in inducement. The prosecution was required to prove that the cheques which had been handed over numbering from cheque no. 418501 to 4180061, 419301 to 419400 and 368706 were forged for the purpose of fraudulently/dishonestly inducing the bank to deliver amount of more than 62 lacs. Hence, the more essential requirement which needed to be proved is that the signatures of Neeraj Arora on the cheques were forged. Similarly, for the offence u/s. 468/471 IPC, forgery is sine-qua-non Digitally signed PRITU byDate:PRITU RAJ RAJ 2025.02.03 16:39:47 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 36/40 preparation of falls documents or electronic records is the condition precedent for the offence forgery (Raghunath Singh & Ors vs. State of UP & Anr, 17011/2008, Allahbad High Court)
54. What transpires from the aforesaid discussion is that the prosecution ought to prove the forgery of the aforesaid cheques in order to bring home the charge u/s. 420/468/471 IPC. In this regard, the prosecution had sought to place reliance on FSL Report. However, it is apparent from the testimony of PW 18 i.e. PW Jaipal Singh who was the IO of the case that the signatures of the accused were taken at the Police station while he was in Police custody and before he was produced before the Magistrate with the witness agreeing to the suggestion that no application u/s. 311 CrPC had been filed before the concerned magistrate after the arrest of the accused for obtaining his specimen signatures. In such eventuality, as is settled law, no reliance can be placed upon the FSL Report as the specimen signatures had been taken during the investigation by IO without permission of the court and the same cannot be used against the accused. I am fortified in this regard by placing reliance on decision of Hon'ble High court in Rakesh vs. State 109 (2004) DLT 130, where it was held :
Moreover, the alleged specimen signatures/handwriting/thumb /finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the I.O without prior PRITU permission from the court. Facts in the case of Sukhvinder Singh RAJ Digitally signed by PRITU RAJ Date: FIR No. 140/2008 State vs. Vivekanand Mishra Page 37/40 2025.02.03 16:39:55 +0530 and others Vs. State of Punjab-, were that specimen handwriting of the appellant were taken under the direction of the Executive Magistrate during the investigation when no inquiry or trial was pending in his court. Accused person did to raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime. In the present case the specimen signatures/writing/thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker looting than that of Sukhvinder Singh (Supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (supra) it follows that the specimen writing/thumb impression/finger print impression of the appellant Sri Chand Chandra Shekhar could not be made use of during the trial. The report of the hand writing expert/Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime'
55. Hence, it is apparently clear that no reliance can be placed upon the FSL report as the specimen signatures were taken without the permission of the court and without the presence of independent witnesses. Apart from the FSL report there is no other evidence led by the prosecution to prove the charges of the forgery against the accused. In the absence of the cheques being proved to be forged, the charges u/s. 420/468/471 IPC remain unsubstantiated. The accused is hereby acquitted of the offence u/s. 420/468/471 IPC.
Determination qua section 381/411 IPC
56. Section 381 IPC criminalizes theft by clerk or servant of property in Digitally signed by PRITU PRITU possession of master. Same is reproduced below:
RAJ Date:
RAJ 2025.02.03 16:40:04 +0530 FIR No. 140/2008 State vs. Vivekanand Mishra Page 38/40 Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
57. Section 411 IPC criminalizes dishonest receiving of stolen property. It reads as under:
Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
58. In the present case, the accused has been charged with committing theft of cheque book reference slip of account no. 4344 OBC Gandhi Nagar while being employed with M/s King Exports. He has also been charged of being found in possession of cheque book reference slip of account no. 4344 OBC Gandhi Nagar bearing details of cheque no. 418501 to 418600 which was received/retained by him knowing or having reason to believe the same to be stolen property. The burden to prove the said charges was upon the prosecution. However, the testimony of PW 02 and PW 03 does not contain a single whisper as to the fact whether those PWs had seen the accused committing theft of the cheque book reference slips. There is no averment in the testimony of these witnesses about the allegation of PRITU alleged theft committed by the accused. Even otherwise, it does not appeal RAJ Digitally signed by PRITU RAJ Date: 2025.02.03 FIR No. 140/2008 State vs. Vivekanand Mishra Page 39/40 16:40:21 +0530 to reason that a person who has been entrusted with cheque book, which included the reference slip, can be charged with the offence u/s. 381 IPC since entrustment itself implies that the document was given to the accused ruling out the possibility of theft by the person to whom it is so entrusted.
59. Even otherwise the cheque book reference slip of account no. 4344 OBC Gandhi Nagar was never recovered from the possession of the accused. Perusal of the testimony of PW 12 and PW 13 shows that it was the cheque book which was allegedly recovered and not the reference slips. Hence the accused is acquitted of the offence u/s. 381/411 IPC. DECISION
60. In light of aforesaid decision, accused Vivekananda Mishra is hereby convicted of offence u/s. 408 IPC. He is however, acquitted of the offence u/s. 420/468/471/381/411 IPC.
61. Let the convict be heard separately on the quantum of sentence.
Digitally signed by PRITU PRITU RAJ Date:
RAJ 2025.02.03
16:40:30
+0530
Announced in open Court (PRITU RAJ)
on 31th January, 2025 Judicial Magistrate-01
East, KKD Courts, Delhi.
FIR No. 140/2008 State vs. Vivekanand Mishra Page 40/40