Delhi District Court
State vs Harish Chandra on 3 June, 2025
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
ADDL. SESSIONS JUDGE - 02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Appeal No.191/2023
FIR No.222/2016
State Vs. Harish Chandra
PS: Defence Colony
U/Sec.409/468/471/477A IPC
In the matter of :-
State (Govt. of NCT of Delhi)
Through Chief Public Prosecutor, South District
Saket Courts Complex, New Delhi
..........Appellant
Versus
Harish Chandra
S/o Sh. Chitna Ram
R/o H.No.L-1542, Gali No.9, Church Colony,
Sangam Vihar, New Delhi
..........Respondent
Date of Institution : 05.06.2023
Date of Arguments : 22.04.2025
Date of Order : 03.06.2025
Decision : Appeal Allowed.
Respondent/ Accused
Stands convicted
u/sec. 468/471/477A IPC
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.1 of 62
JUDGMENT
1. Appellant/State has filed present appeal u/sec. 378 CrPC thereby challenging judgment of acquittal dated 28.02.2023 passed by Ld. Trial Court in FIR No. 222/2016, U/s 409/468/471/477A IPC, Police Defence Colony.
2. Appellant (State) herein was complainant before Ld. Trial Court and respondent Harish Chandra was accused before Ld. Trial Court. In order to avoid confusion, parties will be referred with the same nomenclature with which, they were referred before Ld. Trial Court, in my subsequent paragraphs.
3. Ld. Trial Court record reveal that the complaint was filed by Sh. S.P. Baliyan being the General Manager, Accounts and Finance of M/s. Indica Travels & Tours and the same is mentioned below in verbatim :-
"To, The SHO Police Station Defence Colony, New Delhi.
Subject:- Forgery, Fudging of accounts, criminal breach of trust and cheating by employee Mr. Harish Chandra, Assistant Manager, Forex India Travels & Tours Pvt. Ltd. New Delhi. Sir, I, S.P.Baniyal, General Manager, Accounts and Finance of M/S Indica Travels and Tours, B-106 & 107 1ST Floor, Ansal Plaza, August Kranti Marg, Andrews Ganj, New Delhi- 110049 (INDIA) on behalf of M/S Indica Travels and Tours CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.2 of 62 Pvt. Ltd., beg to report against its employee Mr. Harish Chandra, Assistant Manager Forex Indica Travels and Tours Pvt. Ltd. as under: 1. M/s Indica Tours & Travels Pvt Ltd. [Hereinafter referred to as "Company"] is a Private Company engaged in the Business of Buying and Selling of Foreign Exchange including encashment of Foreign Exchange apart from selling of Domestic and International Air Tickets and catering to all Travel needs of its Clients, with its Registered & Head office at B-106 & 107, Ist Floor, Ansal Plaza August Kranti Marg, Andrews Ganj, New Delhi-110049 (INDIA). 2. Mr. Harish Chandra R/O L-1542/10 Gali No.9, Near Church, Sangam Vihar, New Delhi 110062 is employed with our Company since May 2008. His job is as an Assistant Manager, Foreign Exchange business of our Company. A copy of his appointment letter signed by Shri Shiban Kotru President of M/S Indica Tours & Travels Pvt. Ltd. and accepted by Mr.Harish Chandra is enclosed herewith as Annexure 'A'. 3. Mr. Harish Chandra as Assistant Manager of the Company was Incharge and responsible for generating Foreign Exchange Business for the Company and was handling all business of Buying and Selling of Foreign Exchange including the encashment of Foreign Exchange on behalf of the Company. All documentation related to all such transactions in Foreign Exchange and reporting to RBI was also his duty and responsibility. He was responsible for handling and custody of Foreign Exchange cash and its transactions on daily basis. 4. As per our Company's policy, as Foreign Exchange is also, currency, no Foreign Exchange is sold and/or handed over to Clients of Company until and unless equivalent amount/value of said currency in INR was received by the company from the Client. 5. Mr. Harish Chandra remained absent from his job, unauthorisedly company since 23rd July 2016 nor picked up his phone. Due to his unexplained and unauthorized absence the company could not provide services to its customers of Foreign CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.3 of 62 Exchange as entire handling and custody of Foreign Exchange of company was done by Mr Harish Chandra who was even in possession of the Foreign Exchange Safe Keys. A written Communication was sent to him on 28th July 2016 by Company which was duly received by his son on the same date. Copy of the said written communication dated 28/07/2016 is enclosed as Annexure B. 6. On 02/08/2016, Mr Harish Chandra reported back for duty During the course of verification of stock of Foreign Exchange in books of accounts of company by me, Mr. Kesar Singh Danu and Mr Umesh Dixit, it was revealed that the Foreign Currency as per the closing of books of accounts of company on 22/07/2016 did not match with the Foreign currency handed over back by Mr Harish Chandra and our Company's Foreign Exchange equivalent to INR 20,34,480/-[Rupees Twenty Lakhs Thirty Four Thousand Four Hundred Eighty Only] was short. A Note dated 02/08/2016 with the details of foreign exchange and their quantity which were short was issued to Mr Harish Chandra. Mr Harish Chandra sought some time to explain the reason for the same. Copy of the said Note dated 02/08/2016 is Annexure C. 7. A verification of documents as well as sales proceedings were carried out by me and Mr Kesar Singh Danu. We found that besides abovesaid shortage of Foreign exchange, our company had not received amounts of cash memo No. 15937 dated 26/04/2016 of our client Ms Yaiphabi Devi Sarungbam to the tune of Rs 1,68,947/- although the same were shown in our books by Mr Harish Chandra to be deposited in Punjab National Bank Similarly our company had not received amounts of cash memo No.15616 of our client Mr Abhimanyu Sehgal chgal to the tune of Rs 44,954/- although the same were shown in our books by Mr Harish Chandra to be deposited in Axis Bank. We also found that there was a bulk sale in duplicate recorded by Mr Harish Chandra in books of company vide memo # 1652 and # 652 whereby Foreign currency of Euro 2000 and USD 800 in total CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.4 of 62 equivalent to INR 2,04,540/- was also in shortage. After such detection of our Company's Foreign Exchange equivalent to INR 24,52,921/- [Rupees Twenty Four Lakhs Fifty Two Thousand Nine Hundred Twenty One Only] on various international Currencies being wrongly reported by Mr Harish Chandra, a thorough checking of all documents, sales records etc of foreign exchange of company was undertaken by me and Mr Kesar Singh Danu. 8. After a thorough verification of documents, sales records etc and a detailed scrutiny of list of Debtors in addition to above, it was revealed that Mr Harish Chandra had prepared forged and fabricated cash memos of sale of foreign exchange in the name of Ms Tanu Ailawadi and Mr Dinesh Singh Pundir and also manipulated the records of company so as to misappropriate the amounts of sales of foreign exchange received from various customers and an amount of Rs.28,99,083/-[Rupees Twenty Eight Lakhs Ninety Nine Thousand Eighty Three Only] has been misappropriated by Shri Harish Chandra by manipulating the official records knowingly with dishonest intention of siphoning out the money from the Company and converting the same to his use.
9. On 5th September 2016, after all the relevant details of above said fraud and misappropriation of fund of company were gathered, all the documents were shown to Mr Harish Chandra. After verifying the documents, Mr Harish Chandra in presence of me and Mr Kesar Singh Danu confessed his guilt and accepted his involvement in the embezzlement of both the Foreign Exchange as well as misappropriation of money of company. He admitted the correctness of the statement of Account shown to him and voluntarily gave it in writing owning his responsibility of paying back to the Company, the amount of Rs.53,52,004 [Rupees Fifty Three Lakhs Fifty Two Thousand and Four Only] criminally misappropriated by him. Copy of the said writing of Mr Harish Chandra confessing his guilt and admitting his liability of the outstanding amount towards the company with its CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.5 of 62 details is annexed herewith as Annexure D. All Cash memos related to the individual transactions are duly signed by Mr Harish Chandra acknowledging the receipt of INR in order to complete the transactions with the client which he failed to deposit with the company and he dishonestly misappropriated the said money. The copy of said invoices are annexed herewith as Annexure E(Colly). Mr Harish Chandra even signed the two cash memo no. 16211 of Ms. Tanu Ailawadi and Cash memo No. 15249 of Dinesh Singh Pundir and acknowledged in writing the receipt of Foreign Exchange in order to complete the transactions with the said clients which, infact, never happened and he dishonestly misappropriated the said Currency belonging to Company. The copy of the said cash memos are annexed herewith as Annexure F-1 to F-
2. The corporate clientwise statement of account of our company showing the fraud and misappropriation of funds/foreign exchange of our company by Mr Harish Chandra is annexed herewith as Annexure G(Colly). A typed chart showing consolidated details of all the cash memos wherein fraudulent transactions have been carried out by Mr Harish Chandra is annexed herewith as Annexure H(Colly).
10. Shri Harish Chandra has collected money/Foreign Exchange on behalf of M/S Indica Travels & Tours Pvt. Ltd. but not deposited the same with the Company. Besides it, Sh Harish Chandra has misappropriated the Currency of invoices related to individual transactions signed by him, acknowledging the receipt of INR/Foreign exchange in order to complete the transaction with the client which in reality never happened. He has not paid back any amount to the Company, the amount involved is of Rs.53,52,004. Despite admitting his guilt and misappropriation of amount of Rs 53,52,004/- of Company and assuring to return the same, Mr Harish Chandra has deliberately because of his ill intentions, not returned the said amount of Company. I, on behalf of M/S Indica Travels & Tours Pvt. Ltd., respectfully pray that CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.6 of 62 immediate action may be taken against Mr. Harish Chandra for committing offence of Forgery, Fudging of Accounts, Criminal Breach of Trust and Cheating and the amount embezzled by him be recovered and restored to the Company. Thanking You, Yours Faithfully, SD- English, S.P.Baniyal, General Manager, Accounts and Finance, M/S Indica Travels and Tours Pvt. Ltd., B-106 & 107 1ST Floor, Ansal Plaza, August Kranti Marg, Andrews Ganj, New Delhi-110049 (INDIA) Enclosures: 1. Annexure A: A copy of appointment letter OF Mr Harish Chandra signed by Shri Shiban Kotru President of M/S Indica Travels & Tours Pvt Ltd. and accepted by Mr.Harish Chandra 2. Annexure B:Copy of Letter dated 28/07/2016 written by Mr. Shiban Kothru President Indica Travels & Tours Pvt. Ltd. to Mr.Harish Chandra for his unauthorized absence from job .3. Annexure C: Copy of Note dated 02/08/2016 with the details of foreign exchange and their quantity which were short issued to Mr Harish Chandra 4. Annexure D: Copy of writing given by Harish Chandra admitting the correctness of the statement of Account shown to him and voluntarily owning his responsibility of paying back to the Company, the amount of Rs.53,52,004 [Rupees Fifty Three Lakhs Fifty Two Thousand and Four Only] criminally misappropriated by him. 5.
Annexure E: Copy of Cash memos related to the individual transactions duly signed by Mr Harish Chandra acknowledging the receipt of INR in order to complete the transactions with the client which he failed to deposit with the company and he dishonestly pocketed the said money. 6. Annexure F-1 to F-2: Copy of two cash memo no. 16211 of Ms Tanu Ailawadi and Cash memo No. 15249 of Dinesh Singh Pundir signed by Mr Harish Chandra and acknowledging in writing the receipt of Foreign Exchange in order to complete the transactions with the said clients which, infact, never happened and he dishonestly pocketed the said Currency.
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7. Annexure G(Colly): Copy of corporate clientwise statement of account of Company showing the fraud and misappropriation of funds/foreign exchange of Company by Mr Harish Chandra is annexed herewith as Annexure G(Colly). 8. Annexure H(Colly): A typed chart showing consolidated details of all the cash memos wherein fraudulent transactions have been carried out by Mr Harish Chandra was also annexed."
4. Thereafter, on the basis of aforesaid complaint, present FIR was registered against the accused and charge-sheet for the offence punishable u/sec. 409/420/468/471/477A IPC was filed against him. Consequently, charge was accordingly framed to which he pleaded not guilty and claimed trial.
5. Prosecution had examined 13 witnesses in total. Statement of accused u/sec. 313 CrPC was recorded by Ld. Trial Court in which all the incriminating evidence was put to accused to which he denied all the allegations and opted not to lead defence evidence.
6. After hearing all the parties, matter was reserved for pronouncement of judgment and vide impugned judgment dated 28.02.2023, accused Harish Chandra was discharged for all the offences.
7. Feeling aggrieved from the impugned judgment dated 28.02.2023, the State/ Prosecution has preferred the present appeal by taking the following grounds :-
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.8 of 62 I). That Ld. Trial Court did not consider that that PW2 in her testimony has stated that she never purchased any currency vide cash memo Ex.PW2/A and the same was forged. In her testimony she had also proved her passport Ex. PW2/B that she was abroad at the time of sale of currency mentioned by accused as per aforesaid cash memo. That if in absence of PW2 any sale of foreign currency in the name of PW2 is shown by the accused through the cash memo prepared by him, the same can be safely presumed that it is forged and false documents prepared by accused and the onus was an accused to explain which he failed to do in the cross examination of PW2. More so, accused admitted that PW2 never approached him for foreign currency.
II. That Ld. Trial Court did not consider that false entries / alleged forged memo was also proved by PW13 in his testimony and the same is even reflected in books of company in computerized sale register Ex.PW13/3 and customer ledger Ex. PW13/13. Although no payment was ever received in any account of company for the said cash memo and the same is reflected as deficit in book of account of company in FLM-1 Ex.PW13/1 and FLM-8 Ex. PW9/D. In the cross examination, PW1 accused had admitted that even signatures of customers were being taken at the time of sale through cash memos. That cash memos do not bear signatures of the customer as the said transaction was never made by concerned customer and it was created by accused in his handwriting duly CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.9 of 62 proved by FSL Report only to misappropriate the forex currency.
III. That Ld. Trial Court did not consider that PW5 in his testimony has stated that he never purchased any currency vide cash memo Ex. PW5/A wherein it was mentioned that the foreign currency was sold to him and the same was forged. FSL Result on the said exhibit clearly proves that the signatures are of the accused prepared in the name of PW5 for the sale of foreign currency. The accused did not cross examine him and thus admitted the version of PW5 and consequently even the forgery of the cash memo Ex. PW5/B. IV. That if in absence of PW5 any sale of foreign currency in the name of PW2 is shown by the accused through the cash memo prepared by him, the same can be safely presumed that it is forged and false documents prepared by the accused and the onus was an accused to explain which he failed to do. Further in statement of accused recorded u/s. 313 Cr. P.C. the accused admitted that PW5 never approached him for foreign currency and thus admitted the said memo being forged and fabricated.
V. That Ld. Trial Court did not consider that it was also proved by PW13 that the false entry of sale by the forged cash memo was made by the accused and even reflected in the books of company Ex. PW13/3 and Ex. PW13/13. Thus the only inference that follows is that the accused prepared forged and fabricated memos in the name of PW5 and subsequently made false entries in books of Complainant Company and misappropriated the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.10 of 62 said currency.
VI. That Ld. Trial Court did not consider that PW6 in his testimony has stated that he never purchased any currency vide cash memo Ex.PW6/A wherein it was mentioned that the foreign currency was sold to him and the same was forged. FSL Result on the said exhibit clearly proves that the signatures are of the accused prepared in the name of PW6 for the sale of foreign currency. During the cross examination the said fact was not denied by the accused and it was admitted that accused had prepared the cash memo. It was also proved by PW13 that the false entry was made by the accused in reflected in book of the company.
VII. That Ld. Trial Court did not consider that no plausible explanation was put-forth by accused during entire evidence as to why he prepared said cash memos showing sale of foreign currency on behalf of Complainant.
VIII. That Ld. Trial Court did not consider that forgery of documents for the purpose of cheating committed by the accused was further corroborated through witnesses PW9 or PW13 vide document Ex.PW9/C1 to Ex.PW9/C15. That PW9 and PW13 are one and the same person examined under different numbering. Accused admitted in his statement recorded u/s. 313 Cr. P.C. that the aforesaid documents/memos are matter of record.
IX. That Ld. Trial Court did not consider that accused admitted in his statement recorded u/s. 313 Cr.P.C. that records of company showing the difference of Rs. 20,34,480/- when matched with physical foreign exchange handed over by him is the amount which was still outstanding.
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.11 of 62 The accused therefore, admitted the alleged difference in the foreign currency handed over by him to the company.
X. The court has always been considering the plea of the accused that there was no entrustment of foreign exchange cash and he was not custodian of the same. However, during cross examination of PW12 he took a plea that he was entrusted with foreign exchange cash and he might have absent minded left the safe open and somebody might have removed the cash. The accused tried to raise contrary plea and defence in cross examination of PW13 but miserably failed to prove anything.
XI. The Ld. Trial Court did not consider that the accused had voluntarily given his statement and even admitted that he had received the money of the said memos but not paid back to the company. The accused admitted his liability vide documents mark Z1 to 213.
XII. That Ld. Trial Court did not consider that it was also deposed by PW1 in his cross examination that accused was the incharge of Company. That the fact was not denied by the accused that he did not take the alleged money from PWI not did he deny the cash memos issued by him or the signatures of PWI on the cash memo vide which the forex was purchased.
XIII. That Ld. Trial Court did not consider that in testimony of PW7 and PW8 it is deposed and proved that company records were verified with book of company in presence of accused and found that foreign currency of various denominations was found deficit. The report is Ex. PW4/A. The CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.12 of 62 document of charge takeover of Forex Department by accused Ex. PW9/D6 bears the signature of accused at Point-A. It is clearly mentioned at the bottom of said document 'we hereby certify that the statement is true and correct account of all transactions undertaken during the month of accordance with exchange control regulations". There are supporting documents Ex. PW9/D1 and D2 and Ex. PW9/D16 bearing signature of accused. That Complainant Company could not find out discrepancies in spite of preparing and submitting FLM Reports to RBI on time because same were managed and prepared by accused himself.
XIV. That Ld. Trial Court did not consider that the cash memos Ex.PW2/A Ex.PW5/A and Ex. PW6/A bears writing in words and signature of accused which has even been proved by the FSL nor the said cash memos showing sale of foreign currency has been denied by the accused.
XV. That Ld. Trial Court has stated it is proved beyond reasonable doubt that the accused was responsible for generating forex related business for the complainant company and suffice to hold that, the accused is squarely covered under the phrase "agent' for the purposes of section 409 IPC. He was further required to buy and sell forex, being the Assistant Manager of the forex department of the complainant company.
8. Ld. Addl. PP for the State and Ld. Counsel for complainant have argued that impugned judgment of acquittal dated 28.02.2023 is liable to be set aside is not reasoned and Ld. Trial Court has not appreciated the evidence CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.13 of 62 adduced by the prosecution. It has been argued that all the witnesses examined by the prosecution corroborated the story of prosecution and there were no contradictions in the testimonies of any of the witnesses and therefore, the case of the prosecution was proved beyond reasonable doubt. It has been argued that all the documents relied upon by prosecution show that the accused had committed criminal misappropriation of the amount entrusted to him being the official of the company of the complainant and had committed cheating with the complainant by preparing forged and fabricated documents. It has been argued that the offence committed by the accused led to unlawful gain to the accused and loss to the complainant and therefore, the judgment of acquittal is liable to be set aside. It is further argued that Ld. Trial Court has passed the order under challenge by misinterpreting, violating and ignoring the established principles and provisions of law, which caused serious prejudice to the complainant and therefore, the impugned order is liable to be set aside.
9. On the other hand, it has been argued on behalf of Ld. Counsel for accused that the accused has been rightly acquitted by Ld. Trial Court and there is no evidence available on record to show that he had committed any offence. It has been argued that the testimony of PW4, PW7, PW8, PW9 and PW13 are not reliable as none of the witnesses had seen the accused committing any such offence. It has been argued that the testimony of PW13 is contradictory and is not reliable and that he had deposed falsely before the Court. It has been argued that the aforesaid witnesses during cross-examination have not corroborated the story of prosecution and that CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.14 of 62 the guilt of the accused has not been proved beyond reasonable doubt. It has also been argued that the allegations against the accused for embezzlement of Rs. 53,52,004/- in one year was not possible as the internal audit report of the company does not specify the same. Further, the accused had been employed with the complainant company for several years and infact due to his services, the company had profited on the previous years and therefore the allegations against the accused being vague, are liable to discarded. It has also been argued that the aforesaid amount alleged to be siphoned off by the accused is a fictitious amount as no such amount existed. It has also been argued that Ld. Trial Court vide judgment dated 28.02.2023 has also clarified the manner in which the money transactions were done in the company by way of a pictorial chart and the same shows that there was a defined system of deposit of money by the accused and that he did not commit any offence. It has also been argued that Ld. Trial Court rightly appreciated regarding the extra judicial confession allegedly made by accused and the same was hit by Sec. 24 of the Indian Evidence Act. It has been argued that the extra judicial confession relied upon by prosecution is a weak evidence and the veracity of the same is doubtful. It has also been argued that the aforesaid statement is unreliable and does not inspire confidence as the same is hit by Sec. 24 of the Indian Evidence Act. It has been argued that even during the statement of accused recorded u/sec 313 CrPC, accused had categorically mentioned that he had never committed the offence and that no cash memos were ever forged and fabricated by him. It has also been argued that no offence u/sec. 406/506 IPC is made out against the accused as he had CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.15 of 62 never committed any criminal breach of trust or criminal misappropriation. It has also been argued that Sec. 409 IPC defines the act to be committed either by a public servant, or a banker, merchant, factor, broker, attorney or agent to commit the offence and since the accused did not fall in any of the aforesaid categories, he was wrongly charged and no offence u/sec. 409 IPC was made out against the accused. It has also been argued that no offence u/sec. 468/471 IPC is made out against the accused as sec. 463 IPC provides that whoever makes any false document or electronic record with the intention to commit fraud and that the fraud is committed, commits forgery and since the accused had never prepared the false documents or created any forged document, he cannot be made liable and therefore, he has been rightly acquitted by Ld. Trial Court. It has also been argued that the document Ex.PW9/C1 to Ex.PW9/C15 and documents Ex.PW9/C and Ex.PW9/D are the alleged documents which were purported to be prepared by the accused, could not have been prepared in the absence of the signatures of the client to whom the currency was sold. It has also been argued that no offence u/sec. 477A IPC is made out against the accused as accused does not fall in any of the category mentioned under the aforesaid provision and he has been rightly acquitted.
10.The question which needs adjudication, in present appeal, is whether Ld. Trial Court rightly acquitted the accused for the offence punishable U/Sec. 409/468/471/477A IPC or not ?
11.Before adverting to the evidence of prosecution, I must mention here, the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.16 of 62 observations of Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
12.I have heard Ld. Addl. PP for the State/ appellant, Ld. Counsel for accused/ respondent and Ld. Counsel for complainant company in the present matter and have carefully gone through the trial court record and also the evidence CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.17 of 62 placed on record by the prosecution.
13. Briefly, in the present matter, upon registration of the present matter, investigation ensued and after completion of the investigation, charge-sheet was filed on 25.02.2017 and accused was summoned. Charge against the accused was framed on 25.05.2017. The testimonies led by the prosecution before Ld. Trial Court, are mentioned in brief :-
14.PW1- Jitender Manocha was the public witness who deposed that in the year 2015, he had purchased 2500 or 3000 UAE Dirham from the complainant company and at that time, accused Harish Chandra was Incharge of Indica Tour & Travels and he had made payments of aforesaid Dhiram to the accused for an amount of Rs. 54000/- and that the he had bills of the same. He identified the cash memo sl. no. 15478 and 15479 dated 20.11.2015 Ex.PW1/A and Ex.PW1/B. During cross-examination on behalf of prosecution, he had admitted that he had purchased theaforesaid currency in the name of his wife namely Nisha Manocha and had paid an amount of Rs. 55649/- for 3020 UAE Dhiram and Rs. 55281/- for 3000 Dhiram to the accused.
15.During cross-examination on behalf of accused, PW1 deposed that he had given the payment to the accused in the office of the company.
16.PW2- Ms. Ranjha Sen Gupta, deposed on the lines of PW1 and stated that she had purchased the currency Thai Baht from the complainant Indica CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.18 of 62 Travels for an amount of Rs. 45000/-. Upon being shown the invoice receipt no. 15837 dated 31.03.2016, the witness deposed that the same does not bears her signature and that the passport number mentioned on the receipt i.e. Z2867550 had already expired in the year 2014, at the relevant time and the receipt was Ex.PW2/A. The copy of her original passport was Ex.PW2/B.
17.During cross-examination, PW2 deposed that from 29.03.2016 to 05.04.2016, she was in Thailand and the copy of her arrival and departure in the passport was Ex.PW2/C.
18.PW3- W/Ct. Ratan Prabha deposed that she had registered the FIR upon receiving the rukka and the same was Ex.PW3/A and Ex.PW3/B.
19.PW4- Sh. S.P. Baniyal (complainant) deposed on the lines of the complaint and the report prepared after checking the accounts of the company was Ex.PW4/A and his complaint was Ex.PW4/B.
20.During cross-examination on behalf of prosecution, he admitted that during verification of the accounts, the foreign exchange of the company was found to be short of Rs. 53,52,004/- and all the documents pertaining to the same were handed over to the IO and were also shown to the accused on 05.09.2016 and he had admitted his signatures on the documents/ cash memos Mark Z-1 to Mark Z-31 and the remaining documents were already as Ex.PW1/A and Ex.PW1/B. CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.19 of 62
21.During cross-examination on behalf of accused, PW4 deposed that he was the General Manager, Accounts in Indica Tour & Travels Company since the year 1996 till 2016 and was promoted from time to time. Accused Harish Chandra was appointed in the year 2008 and that accused was of good character prior to the present incident. Prior to 23.07.2016, accused had always obtained leaves from the company on an application, however on 23.07.2016, he remained absent without intimation. Further, that accused was not authorized to keep the keys of the chest containing foreign exchange and there were only one key of the said chest and there was no other master key. Further, there was no procedure of search of accused with regard to possession of the keys at the time of his ingress or out-gress of the premises of the company. Further, the accounts were reconciled when accused joined duty on 02.08.2016. No internal auditing of the company was done every month and the external audit of the company, usually to be done around July- August of the next closing year. Accused himself was responsible for incorporating the details of transactions regarding foreign exchange of the company and get the same audited from the auditors which included the money received and the expenditure of the company. He further admitted that he and his department being the head of the department were responsible in the complainant company for preparing its balance sheet and profit and loss account from the books of accounts maintained by the officials of the company annually and the same was prepared fairly by its officials.
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22.PW5- Prakash Verma being a public witness deposed that IO visited his office on 23.12.2016 and the cash memo Ex.PW5/A which was not regarding any transaction made by him amounting to 1000 dollars.
23.PW6- Inderjeet Bose deposed that the cash memo 15836 Ex.PW6/A regarding transaction amount of Rs. 45000 Thai Baht was not made by him and the same does not bear his signature and the cash memo was not genuine.
24.PW7- Kesar Singh Danu being the Senior Manager, Computer and Accounts with complainant company Indica Tour & Travels deposed on the lines of the complaint filed against the accused.
25.During cross-examination on behalf of accused, PW7 deposed that he was working under the authority of PW4 Sh. S P Baneiyal, and prior to the detection of present case, the accused used to work sincerely in the company. Prior to the accused Sh. Rajesh Chauhan was heading the forex department of the complainant company. Further, that he did not know the exact qualification of accused and accused was recruited in the complainant company on the basis of his experience as represented by him at the time of his appointment. The account department of complainant company is responsible to maintain its books of account and further that the forex department had to maintain its books of account separately and the same was maintained by the accused. The external auditors and RBI officials who visited the complainant company for auditing purpose were assisted CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.21 of 62 by accused in relation to the forex department of the complainant company. Further, the complainant company had instructed Sh. SP Baniyal to lodge the FIR against the accused as accused had embezzled the amount and foreign exchange of complainant company in small amounts over a long period of time and hence the same remained undetected for long time. Since, the accused remained unauthorizedly absent for long duration and due to his absence the business of foreign exchange of foreign company was suffering, he was issued the letter /notice to join. Further, the foreign exchange safe keys were only with the accused and no one else and there was no master keys of foreign exchange safe. The custodian of keys in the complainant company were permitted to take the keys alongwith them while leaving the premises of complainant company.
26.PW8 Umesh Dixit Manager Accounts of the complainant company deposed that the accused was working as Assistant Manager Foreign Exchange at Indica Travel and Tour Pvt. Ltd and remained absent from his job after 22.07.2016. The president of aforesaid company was Sh. Shiban Kotru who instructed PW8, SP Baniyal (PW4), Sh. Kesar Singh Danu (PW7) to verify the stock of foreign currency which were in the possession of the accused in the course of assigned duty with the records of books of complainant company. Thereafter, he alongwith S P Baniyal and Sh. Kesar Singh in the presence of accused had verified the said record with the records of books of company and they found that the foreign currency of various denomination was found deficient as on 02.08.2016. They had prepared the report and put signatures which was Ex.PW4/A. Further, the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.22 of 62 original of said reports was given to accused Harish Chandra and receiving was taken at point C from him on document Ex.PW4/A.
27.During cross examination PW4 deposed that accused was a honest employee of complainant company prior to the present incident. The books of account and balance sheet and profit and loss account in relation to foreign exchange were solely maintained by accused and all transactions related to foreign exchange was solely done by accused. No internal auditing and internal re-conciliation on monthly or quarterly basis was ever done in the company. Chartered accountant of the company used to come for external audit of the company. Further, that the auditing of account in the company includes all sum of money received and expended by the company and the matter in respect of which the receipt and expenditure takes place. He could not tell the exact number of clients dealt by the company in relation to foreign exchange as the same is not his department. He did not remember the exact profit and loss of the company in the financial year 2016-2017. Accused Harish Chandra was not induced by the company to write and sign on the paper admitting the act as mentioned in the present case in his presence. Further, prior to the incident he had never heard accused indulging in any of the activities as complaints in this case.
28.PW9 Sh. Krishan Kant GM Accounts and Finance deposed that he was working in the complainant company since September, 2016 and the accused had joined the company in May, 2008 as Assistant Manager, Foreign Exchange. He was responsible for generating foreign exchange CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.23 of 62 business for the company and was also responsible for issuing cash memos and other related documents on behalf of company being sole persons in the department. In pursuance of notice U/s 91 Cr.P.C. PW9 had submitted carbon copies of all cash memos, one original cash memos on 06.01.2017 to the IO through letter which was Ex.PW9/A and the seizure memo of the same was Ex.PW9/B. The carbon copy of the cash memo were Ex.PW9/C1 to Ex.PW9/C15, Ex.PW9/CX and Ex.PW9/D1 to Ex.PW9/D16.
29.During cross examination PW9 deposed that the complainant company is a small company and hence no rule book putting forth the responsibility of its employees is available. The Account department of the company and company used to maintain books of accounts of complainant company excluding the forex department which was solely maintained by the accused and there was no internal auditing in the complainant company.
30.PW10 Inspector Vishal Singh deposed regarding the approval of registration of FIR vide application Ex.PW10/A and that he endorsed the complaint vide Ex.PW10/B.
31.During cross examination PW10 deposed that he did not conduct any preliminary enquiry and registered the FIR without delay as the offence was cognizable in nature.
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32.PW11 Dr. B A Vaid from Truth Lab Delhi deposed that he had received the documents of the present matter from SHO PS Defence Colony vide memo no.113/R/SHO/Defence Colony dated 24.01.2017 which was Ex.PW11/A and he gave his report vide Ex.PW11/B. The letter of A K Srivastav was Ex.PW11/C.
33.Despite opportunities, no question was asked to the witness by the accused.
34.PW12 SI Amit Maan IO deposed regarding the investigation conducted in the present matter and relied upon document Ex.PW12/A to Ex.PW12/G and also deposed regarding the FSL report Ex.PW11/A.
35.During the cross examination PW12 deposed that he had collected all the relevant documents from the complainant company and other witnesses further he had served notice U/s 91 Cr.P.C for obtaining the appointment letter of accused for the said post as well as regarding nature of duties which was supplied to him and seized by him. Further he had not demanded any rules and regulation application to the employee of the complainant company including the accused. Further, during his investigation he came to know that accused was whole sole Incharge of Forex department of complainant company and was solely handling all the affairs relating to the same including preparation of account statement and FLM report. Further during investigation, he found that the accused who was 12th pass have cheated the company for about 2-3 years without the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.25 of 62 knowledge of the company. Further, during investigation it was found that accused was the sole custodian of safe keys, cash of foreign exchange department. He also found from the complainant company that the accused was incharge of safe keys of foreign department. He did not find any document or any rule book containing the information that there was only one keys for the safe of foreign exchange department. Further, during investigation he had examined the witnesses of the complainant company who also informed him that the accused remained absent from his duty without intimation and was not handing over the charge of his department which created suspicion in the mind of the complainant. Further, during investigation he came to know that accused was in perfect mental condition. Further he had conducted the search of the accused but no recovery was effected and also checked the bank account status of all the bank accounts revealed by the accused and no suspicious transaction was found in the said bank account. No clue for trace of money was found during the investigation and after his investigation he came to the conclusion that accused had misappropriated the funds of the complainant company by preparing forged and fabricated cash memos. During investigation he did not come across any collusion between the complainant company and the accused for preparing forged cash memos. Further, the accused being incharge of the forex department was authorized to prepare the cash memos without permission of any other official of complainant company. As per his investigation the foreign currency was never directly transferred into the forex department by the accounts department. The document Ex.PW12/DX was the document in the hand CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.26 of 62 writing of the accused wherein he had admitted his guilt and the same was given by him before the officials of the complainant company. Further, that accused had prepared hard copy of forged cash memos which could not be edited or deleted by the complainant.
36.PW13 Krishan Kant GM Accounts and Finance of the complainant company deposed that he jointed the complainant company in March 2016 and was on probation for six months and after six months from September, 2016 he became the head of accounts and finance and forex department of the complainant company. He deposed regarding the manner of his working and the accounts of the company during the period between 2015 to 2017 onwards and relied upon document Ex.PW13/1 to Ex.PW13/3. He further deposed that the accused was working as Assistant Manager for the complainant company and handled all the transaction pertaining to foreign exchange including sale and purchase and solely responsible for generating foreign business and issuing cash memos and other related documents on behalf of the company. Further, that the accused had prepared forged cash memos of Sh. Rakesh Srivastav, Kuldeep Singh, Inderjeet Bose, Ranja Sen Gupta, P N Narainswamy, Sanjeev Kumar Sawhney, Dr. Madhusun Chaudhary, Kiran Chaudhary, Zakir Hussain, Venketarama Subramaniyum Pragya Bhatnagar, Rajat Sharma, Anupama Srivastav, Shivjeet Kullar, Pawan Sharma, Mahima Sharma, Dushyant Vashisht, Dheeraj Prasad, Sunil Vohra, Priya Sharma, Abhimanyu Sehgal, Naveen Chaudhary, Aarti Sharma, Shradha Joshi, Rajat Bhatt, Dibakar Behra, Kakali Chaudhary, Prakash Verma, Sunil Kumar, Khandpur Archit, Manoj Yadav, Prakash CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.27 of 62 Rathore, Jatinder Manocha, Nisha Manocha, Priya Sharma, Dinesh Singh Pundir, Tannu Ahlawadi, Yaiphabi Devi, Sarungbam, Abhimanyu Sehgal, World One India Forex Pvt. Ltd. during the course of his duty. Further, the accused remained unauthorizedly from his duty. Due to the exigency of the business and for certain important customers the company was constrained to purchase foreign currency through authorized dealer and sell it and due to the absence of accused the company could not do foreign exchange business. After written communication dated 28.07.2016 was sent to the accused, the accused reported back to duty on 02.08.2016. Further, in the presence of accused when the stock of foreign currency was tallied with the books of account of company, as on 22.07.2016, it was found that there was difference in various foreign currency and physical currency handed over by the accused amounting to Rs.22,34,480/-. The report which was prepared regarding the shortage of foreign currency was Ex.PW4/A. After the accused reported back on duty the entries of relevant purchase of foreign exchange and sale of the same were verified from the books of accounts and the cash memos. During the same, it was found that there were discrepancy in the entries made by the accused. The witness relied upon the document Ex.PW13/A to Ex.PW13/Z and ex.PW13/Z1 and Ex.PW13/Z2 in this regard.
37.During cross examination PW13 Krishan Kant deposed that accused was not issued written notice in the period between 20.06.2016 to 22.07.2016 to explain about the outstanding amount of individual account as on 31.03.2016 and accused was orally asked regarding the aforesaid period CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.28 of 62 and initiate the proceeding of recovery from the individual client further no written notice was issued to those individuals between the aforesaid period. The total embezzled amount was found to be Rs.53,52,004/- done by the accused. Further, that the accused was solely responsible for complete accounting of forex department. Further, the accused had not shown the payments received in cash from clients namely Madhusudhan Chaudhary and Kiran Chaudhary as in the books of accounts he had not made the entries. Further, that accused may have done overwriting in some of the cash memos also. He has further deposed that being the general manager of accounts and finance of the complainant company he was required to look after day today accounting and finalization of accounts. Further, the accounting practices and procedure which are followed in complainant company are satisfactory and full of cheques and balances. From 20.02.2013 till 20.07.2013 accused was fully responsible to file Forex/FLM with RBI without any other approval from Management of the Company. During cross examination PW13 also deposed regarding the manner of working of the accounts department as well as the manner in which the forex of the company was purchased, sold and declared to RBI as well as audited by the accused himself.
THE OFFENCE
38.The offence U/s 409 IPC which states as follows :-
"409. Criminal breach of trust by public servant, or by banker, merchant or agent.--
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.29 of 62 Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, 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."
39.The aforesaid section classes together public servants, bankers, merchants, factors, brokers, attorneys and agents. As a rule, the duties of such person are of highly confidential character, involving great power of control over the property entrusted to them, and a breach of trust by such persons may often induce serious public and private calamity. Exceptional circumstances, which themselves indicate the dishonest intention of the accused, mere non production of money, which is rightfully in the hands of accused will not amount to crime of misappropriation. There must be something to prove dishonesty. Such dishonestly, may be inferred from the surrounding circumstances and the term upon which the accused had the money in his possession. To constitute an offence U/s 409 IPC the accused either a public servant or banker or agent who was entrusted with property of which he is duty bound to account for and that the accused had committed criminal breach of trust. Section 405 IPC defines criminal breach of trust and requires that there should be entrustment and whether the accused was actuated by dishonest intention or not and whether the accused misappropriated or converted to his own use or to the determent of CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.30 of 62 the persons who entrusted it. To constitute an offence U/s 409 IPC apart from entrustment it is also an essential requirement to show that the accused acted in the capacity of public servant, banker, merchant, factor, broker, attorney and agent.
40.The law pertaining to Section 420 IPC is discussed herein below. Section 420 IPC states that:-
420. Cheating and 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.
41.The law pertaining to the cheating has been discussed by higher echelon of judicial system and the same is discussed below :-
42.In the case of A.M. Mohan Vs. State 2024 SCC Online SC 339 , it has been held that :-
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
12. A similar view has been taken by this Court in the cases of Archana Rana v. State of Uttar Pradesh and Another4, Deepak Gaba and Others v. State of UP and Another5 and Mariam Fasihuddin and Another v.
State by Adugodi Police Station and Another.
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13. It could thus be seen that for attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. In other words, for attracting the provisions of Section 420 of IPC, it must be shown that the FIR/complaint discloses:
(i) the deception of any person;
(ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and
(iii) dishonest intention of the accused at the time of making the inducement.
14. The averments with regard to the present appellant as have been found in the FIR is as under:
"At the instance of the said Lakshmanan (accused No.1), I (complainant) paid directly Rs. 20,00,000/- to one Mohan (appellant-accused No. 3) and the said Lakshmanan (accused No.1) transferred the remaining sale consideration of over 18 odd crores to Mohan for the purchase of his lands at Sunguvarchatram. But suppressed the execution of sale deed dated 03.02.2017 by the appellant/accused No.3."
43. Further, in the case of Wolfgang Reim & Ors. Vs. State 2012 SCC Online Delhi 3341, it has been held that :-
31. So far as Sections 417, 419 and 420 IPC are concerned, there must be dishonest intention at the inception of delivery or retention of property is the gist of the offence and in absence thereof there can be CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.32 of 62 no offence of cheating. The Hon'ble Supreme Court has held in Sukhdeo Jha Utpal vs. The State of Bihar;
AIR 1957 SC 466 as under :-
"On charge of cheating, the fact that the accused made a false representation with the knowledge, that it was false and that he had a dishonest intention to induce the person deceived to part with his property, at the very time when he made a false representation, is an essential ingredient of the offence. On such a charge, the burden lies on the prosecution to prove affirmatively, not only that the accused has made a false representation, but also he made it with a dishonest intention, knowing that the representation he was making was false."
32. It was further held by the Hon‟ble Supreme Court of India in S.W. Palanitkar vs. State of Bihar; (2002) 1 SCC 241 as under:-
"........In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating."
33. In the present case, there is nothing on record to show that the petitioners knowingly made any false representation, much less dishonestly or fraudulently any representation. Therefore, one of basic ingredients of Sec 415 or 420 IPC is not made out.
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.33 of 62 \34. Further, a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction because for the offence of cheating, it is a prerequisite that dishonest intention must exist at the inception of any transaction whereas in case of criminal breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property as per law, therefore, for commission of criminal breach of trust, the dishonest intention comes later, i.e, after obtaining dominion over the property by the accused person whereas for commission of cheating, dishonest intention of the accused has to be present at the inception of the transaction."
44. Sec. 467 IPC states that :-
"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 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."
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45. Sec. 468 IPC states that :-
"Forgery for purpose of cheating -
Whoever commits forgery, intending that the document or electronic record1 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."
46. Sec. 471 IPC states that :-
"Using as genuine a forged document :-
Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."
47. The offence u/sec. 467 IPC is an aggravated form of the preceding section. The forged document must be one of those mentioned in the section. Sec. 468 IPC punishes forgery committed for the purpose of cheating. To bring a document within the definition of a forged document, it is required firstly to be shown that the false document was covered u/sec. 464 IPC and even mere proving of making a false document without establishing the intention of the maker is not sufficient to constitute an offence and unless the forgery of a document is proved, it cannot be said that the said forged document is used as genuine one. Therefore, to constitute an offence u/sec. 471 IPC, first an offence u/sec. 468 IPC has be established. Mere preparation of document under once own signature and CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.35 of 62 writings by making false averments therein does not fall within the definition of forgery. The ingredient of the offence u/sec. 468 IPC is committing of forgery with a particular intent, that intent being that the document forged should be used for the purpose of cheating. The Section does not require that accused should actually commit the offence of cheating. Forgery is usually an act done in furtherance of some other criminal design. What is material is the intention or purpose of the offender in committing forgery.
48. To constitute an offence u/sec. 468 IPC, the prosecution is required to establish that the accused had committed forgery and that he did it with an intention that the document forged shall be used for the purpose of cheating. The term forged document is defined u/sec. 470 IPC. Sec. 471 IPC states that whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be forged shall be punished in the same manner as if he had forged such document. Therefore, what this section requires is a use as genuine of any document which is known or believed to be forged document. The condition precedent for an offence u/sec. 467 and sec. 471 IPC is forgery. The condition precedent for forgery is making a false document. Therefore, sec. 471 IPC requires to use the forged document as genuine. To bring home, sec. 471 IPC user of a forged document as genuine, inter-alia must be made fraudulently and dishonestly. While deceit is an important ingredient of the definition of the word 'fraudulently' it is not an ingredient of the definition of the word 'dishonestly' which involves a pecuniary or CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.36 of 62 economic gain or loss, while the word 'fraudulently' by construction excludes that element. Further, it is required that the accused knew or had good reason to believe that it was not the signature of the person by whom the document is set to have been written.
49. The law pertaining to the aforementioned offences u/sec. 464/467/468/471 IPC is discussed in my subsequent paragraphs, of this judgment.
50. It has been held in the case of Mohd. Ibrahim & Ors. Vs. State of Bihar, 2009 8 SCC 751 para 9 to 22, that :-
"9. The term "forgery" used in these two sections is defined in section
463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below :
"464. Making a false document.--A person is said to make a false document or false electronic record--- First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
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(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.38 of 62 [Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]."
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
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11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.40 of 62 executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.
Section 420 IPC
13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.41 of 62 and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-
accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code.
A clarification
15. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term `fraud' is not defined in CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.42 of 62 the Code. The dictionary definition of `fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla vs. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus "The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999 (2) SCC 617.
16. The Penal Code however defines `fraudulently', an adjective form of the word `fraud', in section 25, as follows :
"A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". The term "fraudulently" is mostly used with the term "dishonestly"
which is defined in section 24 as follows : "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To `defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.43 of 62
(i) Fraudulent removal or concealment of property (sec.206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (sec. 207).
(iii) Fraudulent suffering or obtaining a decree (sec.
208 and 210)
(iv) Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)
(vi) Fraudulent acts relating to stamps (sec. 261-261)
(vii) Fraudulent use of false instruments/weight/measure (sec.264 to 266)
(viii) Cheating (sec. 415 to 420)
(ix) Fraudulent prevention of debt being available to creditors (sec. 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423).
(xi) Forgery making or executing a false document (sec. 463 to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477)
(xiii) Fraudulently going through marriage ceremony (sec.496).
It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.44 of 62 law, unless that fraudulent act is specified to be an offence under the Code or other law. Section 504 of Penal Code
17. The allegations in the complaint do not also made out the ingredients of an offence under section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace. The allegation in the complainant is that when he enquired with accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to appellants 1 and 2, it cannot be said to amount to an "insult with intent to provoke breach of peace". The statement attributed to accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by first appellant in favour of the second appellant.
Conclusion
18. The averments in the complaint if assumed to be true, do not make out any offence under sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under section 341 and causing hurt under section 323 of IPC.
19. For the reasons stated above, the appeal is allowed in part. The order of the High Court is set aside. The order dated 14.12.2005 of the learned Sub-Divisional Magistrate is quashed insofar as offences under sections 420, 467, 471 and 504 IPC. Consequently, the charges framed under those sections are also quashed. The order dated 14.12.2005 and the charges in so far as the offence under sections 323 and 341 IPC are left undisturbed. The appeal is allowed in part accordingly."
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51. It has been held in the case of Sheila Sebastian Vs. R. Jawaharraj & Anr. 2018 7 SCC 581, para 17 to 30, wherein it has been held that :-
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied.
Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that-
"a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.46 of 62
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed that:
"There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.47 of 62 When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
24. In Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.
The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case.
The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.48 of 62 made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
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27. A reasonable doubt has already been thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The State of Maharashtra, (2018) 3 SCC 66 wherein 'reasonable doubt' has been enunciated by this Court as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis." In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
28. This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.50 of 62 accused, still the accused could not be convicted. The latches in the lopsided investigation goes to the root of the matter and fatal to the case of prosecution. If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal. In the process, the common man will lose confidence on the criminal justice delivery system, which is not a good symptom. It is the duty of the investigation, prosecution as well as the Courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice.
29. Although we acknowledge the appellant's plight who has suffered due to alleged acts of forgery, but we are not able to appreciate the appellant's contentions as a penal statute cannot be expanded by using implications. Section 464 of the IPC makes it clear that only the one who makes a false document can be held liable under the aforesaid provision. It must be borne in mind that, where there exists no ambiguity, there lies no scope for interpretation. The contentions of the appellant are contrary to the provision and contrary to the settled law. The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed and it is brought to our notice that already the competent Civil Court has cancelled the mortgage deed and the appellant got back the property.
30. In light of the above discussion, we find no reason to interfere with the order passed by the High Court, resultantly appeals stand dismissed being devoid of merits."\ CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.51 of 62
52. To constitute an offence U/s 477A IPC 477A. Falsification of accounts.--
Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation.--It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed.
53. This section refers to acts relating to book keeping or written accounts. It makes the falsification of books and accounts punishable even though there is no evidence to prove misappropriation of any specific sum on any particular occasion. Section 477A IPC speaks of two offences, namely, falsification of accounts and making of false entry or omitting or altering or abating the omission or alteration of any entry and these two offences are distinct and not interdependent. To bring home the guilt of the accused for the offence U/s 477A the prosecution is required to prove CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.52 of 62 twofold viz., that the person who commits the offence is a clerk, officer, or servant and secondly, that there was intent to defraud. It is sufficient, to satisfy the words of section to prove that the person charged under this section is one who undertakes to perform and does perform the duties of a clerk, or servant whether infact he is a clerk or servant or not, and though he is under no obligation to perform such duties and received no inner remuneration. The emphasize is upon the word in the capacity of a clerk, officer, or servant. Therefore, Section 477A makes a person liable if he being an officer, clerk or servant, does any of the things mentioned in the section in connection with any book, paper, writing, valuable security or account which belongs to or is in possession of that person employer or has been received by him for or on behalf of his employer.
54. Therefore, to attract Sec. 477A IPC, the employee concerned must destroy, alter, mutilate or falsify book or accounts etc. of the employee, inter alia with intent to defraud. The terms "intend to defraud" has already been explained in Sec. 25 IPC. It contains two elements viz. deceit and injury. A person is said to deceive another when by practicing suggestio falsi or suppressio veri or both, he intentionally induces another to believe the things to be true. Injury is defined in Sec. 44 IPC which means any harm whatever illegally caused to any person, is body, mind, reputation and property. Whenever the word fraud or intent to fraud or fraudulently occur in the definition of a crime, two elements are essential i.e. deceit or an intention to deceive, secondly to cause actual injury. Sec. 477A IPC CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.53 of 62 therefore, requires the falsification of accounts with intent to defraud. It does not require any deprivation of property. Fraud means, making a person believe what is not true with intent to cause the injury.
55. In the present matter, prosecution has examined as many as 13 witnesses. Among the witnesses examined by the prosecution, PW1- Jitender Minocha and PW2- Ms. Ranjha Sen Gupta, are the witnesses who were the customers and clients of complainant Indica Tour & Travels and had some point of time had purchased foreign currency from the complainant and the same was paid in cash. Both the aforesaid witnesses were shown cash memos Ex.Pw1/A, Ex.PW1/B and Ex.PW2/A and upon seeing the same, the aforesaid witnesses disclosed that the same did not bear their signatures or their details and that their name had been forged on the aforesaid slips. However, both the aforesaid witnesses have not been cross-examined in respect to their deposition by the accused persons. In fact, PW1 during the cross-examination deposed that she had given payment to the accused in the office of the company and the same is not refuted by the accused by way of cross-examination and therefore, the testimonies of both the aforesaid witnesses was reliable qua their deposition and supported the story of prosecution.
56. PW4- S.P. Baniyal is the star witness of the prosecution as he was the witness who had filed the complaint against the accused being a member from Indica Tour & Travels and it was upon his complaint that the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.54 of 62 criminal law was set to motion. The aforesaid witness corroborated his testimony with his complaint Ex.PW4/B and also narrated the manner in which the accused committed forgery and cheating upon Indica Tour & Travels while being the employee and in control of foreign exchange/ accounts of the company. During cross-examination on behalf of accused, the witness PW4 again corroborated the version of the complaint and categorically mentioned that he had worked with Indica Tour & Travels between 1996 to 2016 and that is when the accused Harish Chandra joined the company in the year 2008 and it was accused who was solely authorized to keep the keys of chest containing foreign exchange and that there was only key of the same and there was no other master key. With the aforesaid deposition, it has been proved by prosecution that accused was sole incharge of the foreign exchange which was received in the office of complainant and the same is not disputed by accused by leading any cogent evidence or disputing the aforesaid fact by placing on record any document in support. Further, it was PW4 who had also deposed that the accused was never searched while entering or leaving the office of the complainant. It has also been deposed during cross-examination that there was no monthly audit by the complainant company and it was only yearly conducted in the month of July and August. Further, that it was the accused who was solely responsible for incorporating the details of the transaction regarding foreign exchange of company and get the same audited. The aforesaid testimony of witness PW4 further substantiate the allegations against the accused which has not been rebutted by accused by leading any cogent evidence and therefore the testimony of PW4 was reliable and corroborative in nature.
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57. Further, in the present matter, PW7- Kesar Singh Danu, is the witness who along-with PW4 and PW8- Umesh Dixit and PW9- Krishan Kant, who was also examined as PW13 upon recalled u/sec. 311 CrPC and examined as a Court Witness. The testimony of aforesaid witnesses is crucial to determine the offence committed by the accused as all the aforesaid witnesses were working in the managerial capacity with complainant company Indica Tour & Travels and had deposed on the lines of the complaint filed by PW4. Aforesaid three witnesses i.e. Kesar Singh Danu, Umesh Dixit and Krishan Kant worked with the complainant company in the accounts department and when the accused stopped attending the office, informed the accused to report for his duties as he was absent without any cause or intimation. Further, once the accused rejoined the office, all the accounts in the presence of the accused were verified and it was found that some of the amount which were allegedly shown as deposited with the complainant company in the books of accounts were never deposited and were siphoned off by the accused. PW7 was duly cross-examined by the accused, however accused failed to point out any contradiction in the testimony of PW7 and the same was corroborative in nature and compare to PW4, PW9/PW13 and PW8. PW7 during cross- examination categorically mentioned that prior to the aforesaid incident, the accused was working sincerely. The accounts department of the complainant company was responsible for maintaining its books of accounts, however the forex department had to maintain its books of accounts separately and the same was maintained by the accused. He also deposed that the external auditors and RBI Officials who visited the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.56 of 62 complainant company for the purpose of audit were assisted by the accused. He also deposed that embezzlement committed by accused remained undetected for long time as all the dealings in the company pertaining to foreign exchange was only done by the accused. He reiterated the fact disclosed by PW4 and corroborated his version by saying that the keys of the foreign exchange safe was always only in the possession of the accused and no one else and there were no master keys of the foreign exchange and the custodian of the keys were permitted to take the same by leaving the complainant company and therefore, there was no contradiction in the testimonies of aforesaid witness and was corroborative in nature. Further, the accused failed to point out any contradiction in the testimony of PW7 by leading any cogent evidence and therefore, the testimony of PW7 remained unrebutted and hence was reliable.
58. PW8- Umesh Dixit was the Manager Accounts of the complainant company and deposed that when the accused remained absent from his job on 22.07.2016, the President of the complainant company namely Shiban Kotru instructed him, PW4 and PW7 to verify the stock of foreign exchange from the books of stock of the complainant company and therefore, PW4 and PW7 in the presence of the accused had verified the same and found that foreign currency of various denomination was found deficient as of 02.08.2016 and the report prepared by them Ex.PW4/A was signed by him. Further, the original of the said report was also handed over to the accused and the same bears the signature of the accused at point C on CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.57 of 62 Ex.PW4/A. The aforesaid witness was duly cross-examined by the accused and during cross-examination, the accused did not dispute the report Ex.PW4/A in which it has been categorically mentioned the deficient amount which was found in the report dated 02.08.2016 and it was mentioned the shortage of currency amount and the currency actually handed over. The accused did not dispute his signatures on the document Ex.PW4/A. The aforesaid witness PW8 again deposed during the cross- examination that the books of account, balance sheet and profit and loss account in relation to foreign exchange was solely maintained by the accused and all transactions related to foreign exchange was solely done by accused. He corroborated the version of PW4 and PW7 by saying that there was no internal auditing conducted on monthly or quarterly basis and the same was done annually. With the aforesaid testimony of PW7, the witness deposed regarding the manner in which the accused committed falsification of accounts of the complainant company during the period of his employment with the complainant company and therefore the testimony of aforesaid witness remained unrebutted and was reliable and trustworthy.
59. PW9- Krishan Kant who was also examined as PW13 again deposed on the lines of the complaint and stated that he had worked as GM Accounts and Finance with the complainant company and he had joined the company in March 2016. In September 2016, he had become Head of Account and Fiance and even foreign department of the complainant company. He also deposed regarding the manner of his working and the CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.58 of 62 accounts of complainant company between the period 2015 to 2017 and detailed regarding the forged cash memos which were prepared by the accused during his tenure and that a written communication was sent to accused on 28.07.2016 to report back on duty. Further, the accused reported back on duty on 02.08.2016 and when the stock fo the foreign currency was tallied in the presence of the accused with the books of accounts of the company, it was found that there was difference in the various foreign currency and the physical currency which was handed over by the accused. The aforesaid witness also relied upon the various cash memos/ carbon copies of the cash memos which were found in the office in the possession of the accused. It was further deposed that accused was responsible for issuing the cash memos and other related documents on behalf of the company being the sole person in the said department. The aforesaid witness during cross-examination again corroborated the version of previous witnesses and deposed that the total embezzled amount was found to be Rs. 53,52,004/-. He corroborated during cross-examination the version of PW4, PW7 and PW8 that the accused was solely responsible for complete accounting of the forex department and that he had not shown the payments received from the clients in the books of accounts and had not made entries qua the same and siphoned off the amount received in cash from the clients. During cross-examination, he further deposed that accounting practices and procedure was followed by complainant company and satisfactory. Therefore, even during cross-examination on behalf of accused, accused failed to cull out any contradiction in the testimonies of the aforesaid witnesses and hence the same were reliable and trustworthy.
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60. The other witnesses examined by the prosecution are PW10- Inspector Vishal Singh and PW11- Dr. B.A. Vaid who had prepared the FSL Report and PW12- SI Amit Mann who deposed regarding the investigation conducted by him. The report of FSL was Ex.PW11/A and Ex.PW11/B. It has been concluded in the FSL Report upon examining the admitted and the questioned documents and upon examination, he opined on the questions asked by the IO in the following manner :
1) Whether the question signature marked to Q-79 to Q-119 tallies with the specimen signature marked S-1 to S-5 and admitted signature A-
1 to A-7 or otherwise ? To the aforesaid question, it has been opined that the red enclosed questioned signature Q-79 to Q-96 and Q-103 to Q-119 and the blue enclosed signatures marked A-1 to A-7 and S- 1 to S-5 were all written by one and the same person.
2) Whether the questioned handwriting Q-40 to Q-78 tallies with the specimen handwriting marked to S-12 to S-40 and admitted handwriting to A-8 to A-14 or otherwise ? To the aforesaid question, it has been opined that the red enclosed questioned writings Q-40 to Q-64 and Q-69 to Q-78 ad the blue enclosed standard writing marked A-8 to A-14 and S-12 to S-40 were all written by one and the same person.
3) Whether the questioned numerals marked Q-1 to Q-39 tallies with the specimen numerals marked to S-6 to S-11 and admitted numerals to A-15 to A-20 or otherwise ? To the aforesaid question, it has been opined that the person who wrote blue enclosed standard writings A- 2 to A-14 and S-12 to S-40 did not write the red enclosed questioned writing marked Q-65 to Q-68.
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61. The aforesaid witness PW11 being an expert witness deposed that the questioned signatures matched with the admitted signature and therefore proved that the forged cash memos were prepared by the accused during the discharge of his duties as an employee. The aforesaid witness was not cross-examined by Ld. Counsel for accused and therefore, even his testimony remained unchallenged by the accused and therefore was reliable and trustworthy.
62. In view of the aforesaid facts and circumstances and after considering the testimonies of all the witnesses examined by the prosecution, there is no contradiction in the testimonies of witnesses and the case of the prosecution has been proved beyond reasonable doubts. As such, complainant and all the witnesses examined by the prosecution, stood their acid test of cross examination. I believed their testimonies to be trustworthy and reliable. Therefore, after carefully considering the testimonies of the witnesses recorded in the present matter, the expert evidence placed on record and the documents relied upon by the prosecution substantiate that the accused while being the employee with Indica Tour & Travels and having the control of foreign currency exchange of the aforesaid company and acting in the fraudulent manner altered and falsified the books of accounts, cash memos of the complainant company and misused the valuable security of the complainant company while being in the aforesaid employment and having intention to defraud the complainant made false entries with the purpose to cause wrongful loss to the complainant and committed cheating with the complainant and had CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.61 of 62 committed the offence u/sec. 477A IPC. Further, the accused Harish Chandra also being the employee of the complainant prepared false documents/ cash memos and committed forgery and hence committed offence punishable u/sec. 468/471 IPC.
63. Considering the aforesaid appreciation, the judgment dated 28.02.2023 passed by Ld. Trial Court of acquitting the accused, stands set aside. Present Appeal filed by appellant/ State stands allowed and accused/ respondent Harish Chandra stands convicted for the offence punishable u/sec. 468/471/477A IPC.
Announced In The Digitally signed
by SHEETAL
SHEETAL CHAUDHARY
Open Court Today CHAUDHARY Date:
2025.06.03
16:01:22 +0530
[Sheetal Chaudhary Pradhan]
ASJ-02, South-East/Saket/Delhi
03.06.2025
CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.62 of 62