Delhi District Court
State vs Jai Kohli Etc on 30 January, 2013
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 300 of 2002
POLICE STATION: CHANAKAYA PURI
U/S: 420/511/468/471 IPC
IN THE MATTER OF
STATE
VS
JAI KOHLI ETC.
(1) Jai Kohli
S/o Late Sh. V.K. Kohli
R/o House No. 38, Professor Colony, Tagore Park, Jalandhar, Punjab
(2) Rajeev Verma
S/o Mr. Raj Kumar Verma
R/o House No. 1219, Ajeet Nagar, Jalandhar, Punjab
Date of institution:03.01.2006
Date of reserving judgement/Order:07.08.2013
Date of Pronouncement of Judgement/Order:30.01.2013
FIR NO.: 300 of 2002
POLICE STATION: CHANAKAYA PURI
U/S: 420/511/468/471 IPC 1 of 21
Brief statement of reasons for such decision :
1.The case of the prosecution in brief is that on or about 20.11.02 at High Commission of Canada, Chanakaya Puri, New Delhi, both accused namely Rajeev Verma and Jai Kohli entered into a criminal conspiracy to do an illegal act punishable with imprisonment and in pursuance of the said conspiracy, the accused Rajeev Verma attempted to cheat the said High Commission for procuring student visa for himself on the basis of a false and fabricated document mentioned in the complaint mark 'X.' It is further alleged that the accused Jai Kohli forged the documents mentioned in the report of GEQD, Hyderabad mark 'X 1' to cheat the said High Commission and the accused Rajeev Verma knowingly used the said forged documents as genuine.
2. After supplying copies U/s 207 Cr. PC, a charge for the offences u/s 420/511/120 B IPC, 468/120 B IPC and 471/120 B IPC was settled against both the accused by my Ld. Predecessor on 21.08.08 to which accused Jai Kohli pleaded not guilty and claimed trial.
3. The accused Rajeev Verma however subsequently pleaded guilty for the offences u/s 420/511/120 B IPC and 471 IPC and he was convicted for the said offences by my Ld. Predecessor vide order dated 25.03.2010.
4. The prosecution in order to prove its case against the accused Jai Kohli has examined as many as 12 witnesses.
(i) The prosecution has examined Retired HC Mehtab Singh as PW 1. He deposed that on 20.11.2002, he recorded FIR No. 300/2002 on the basis of rukka brought by Ct. Jai Bhawan sent by SI Satish Malik. He proved the copy of FIR on record as Ex.
FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 2 of 21 PW 1/A and entry on rukka as Ex. PW 1/B. He identified his signatures on both memos at Point A (OSR).
The witness was not cross examined by Mr. Nitin Rai Sharma, Counsel for accused despite opportunity being given.
(ii) The prosecution has examined Mr. Prem Nath from PNB Jallandhar as PW 2. He produced on record the account bearing no. 28030 and 33058 in the name of Sh. Vipul Kumar and joint account of Sh. Swatantar Aggarwal and Vipul Aggarwal respectively. He further deposed that the report had been given by Sh. K.C. Dilbar the then Senior Manager. The report pertaining to account no. 33058 was Ex. PW 2/A and report pertaining to account no. 28030 was Ex. PW 2/B. He identified the signatures of Sh. K.C. Dilbar at point A respectively on both the abovementioned memos.
He deposed that he could identify the signature's of Mr. K.C. Dilbar as he had seen him signing and writing in course of his official duties. He further deposed that he has also submitted the attested copy of same statements which were Ex. PW 2/C and Ex. PW 2/D bearing signature of Sh. V.K. Asija, Senior Manager, at point A on both statements. He further deposed that he has also submitted a letter regarding the verification report of both account which was Ex. PW 2/E bearing signature of Sh. V.K. Asija, Senior Manager, at point A. In his cross examination by Sh. Nitin Rai Sharma, Counsel for accused, he deposed that Sh. K.C. Dilbar has retired from his job. He admitted that the permanent address of Sh. K.C. Dilbar was mentioned in the bank record and the address can be traced from the said bank record. He further admitted that Ex. PW 2/A and Ex. PW 2/B were not prepared by him. He further admitted that he had not received the query regarding the verification of said accounts by him. He further admitted that Ex. PW 2/C to Ex. PW 2/E were not prepared by him. He admitted that Sh. V.K. Asija, FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 3 of 21 Senior Manager, was still working with their Bank. He further admitted that he has no personal knowledge about this case.
(iii) The prosecution has examined Sh. Gurtej Singh, Senior Manager, UCO Bank, Jallandhar as PW 3. He produced on record one attested copy of the statement of account number 118741 in the name of Tripta Kumari and account no. 118742 in the name of Raj Kumar. He deposed that the verification report regarding account number 118741 and 118742 were prepared by Sh. R.M. Sharma, the then Joint Manager, and Surender Pal, the then Manager. The report's were Ex. PW 3/A and Ex. PW 3/B respectively bearing the signature of Sh. R.M. Sharma, the then Joint Manager, and Surender Pal, the then Manager at point A and B respectively.
He deposed that he could identify the signature's of both officials as he had seen them signing and writing in the course of their official duties. He further deposed that he has submitted the attested copy of statement of account bearing no. 118741 from 27.06.2002 to 23.03.2010 which was Ex. PW 3/C (2 pages) bearing his signature's at point A on both pages. He further deposed that he has also submitted original statement of account no. 118742 from 27.06.2002 to 23.03.2010 which was Ex. PW 3/D (2 pages), bearing his signature at point A on both pages.
In his cross examination by Sh. Nitin Rai Sharma, Counsel for accused, he deposed that Mr. R.M. Sharma and Surender Pal were still working in the bank but in different branch. He admitted that he has no personal knowledge about this case.
(iv) The prosecution has examined Sh. Chander Kant Bakshi, Relationship Manager, SBI, Jallandhar as PW 3. It seems that he has been inadvertently examined as PW 3 instead of PW 4. He deposed that he has appeared in FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 4 of 21 compliance of summons to prove the bank account statement of one Ms. Kanta Rani W/o Sh. Avtar Singh bearing manual account number 2798 thereafter, converted into bank master account no. 01190002798 and at present contains CBS Account no. 10096985082. He produced certified copies of the aforesaid bank account and the same were in three pages and were collectively Ex. PW 3/A bearing signature's of Mr. Ashok Lekhi at point A, B and C. He further deposed that he identify signatures of Mr. Ashok Lekhi as he had seen him writing and signing during the course of his duties. He further deposed that his office Identity Card also bears signature of Mr. Ashok Lekhi.
The witness was not cross examined by the defence Proxy Counsel despite opportunity being given.
(v) The prosecution examined Sh. Husan Lal, Office Assistant from Passport Office, Jallandhar as PW 4. He produced on record certified passport office record, of the office of Passport and Immigration Office Jahallandhar pertaining to Rajeev Kumar, in the file number 402/61118/98, Rajeev Verma in 50 pages and the same were collectively exhibited as Ex. PW 4/A, bearing signature's of Mr. Raj Kumar, Superintendent Passport office Jhallandhar at point A and his short signature's at point B. He deposed that each page bears the short signature's of Mr. Raj Kumar at point 1 to 49.
This witness also was not cross examined by Ms. Sheela, Proxy Counsel for accused despite opportunity being given.
(vi) The prosecution thereafter has examined Mr. Manoj Kumar from SBP, Jallandhar as PW 5. He deposed that he has appeared in compliance of summons to prove the bank account statement of Master Inderjeet Bhopal S/o Sh. Avtar Bhopal bearing account number 01190007311. He also produced certified copies of the aforesaid bank account, account opening form running into six pages attested by Sh. Jarnail Singh, FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 5 of 21 present Branch Manager. The same was exhibited as EX. PW 5/A collectively bearing signature of Sh. Jarnail Singh at point A respectively. He further deposed that he could identify his signature as Sh. Jarnail Singh has signed in his presence. He further deposed that he could also identify the passbook of the above said account which was issued from their bank. He deposed that he has also seen the photocopy of the passbook which was attested by Sh. V.K. Nagar, the then Branch Manager and the same was EX. PW 5/B bearing his signature at point A. He further deposed that he could identify his signature as he has seen him writing and signing during the course of his job.
The witness was not cross examined by Sh. Pankaj Kumar, Ld. Counsel for accused despite opportunity being given.
(vii) The prosecution has examined Sh. Sujit Ghosh from Punjab & Sind Bank, Jallandhar as PW 6. He deposed that he has appeared in compliance of summons to prove the bank account statement of Jai Kohli S/o Sh. V.K. Kohli bearing account number 373. He further deposed that he has also brought certified copies of the aforesaid bank account running into two pages attested by Sh. Chanranjeet Singh, present Branch Manager. The same was EX. PW 6/A collectively and bearing signature's of Sh. Chanranjeet Singh at point A respectively. He further deposed that he could identify signature's of Sh. Chanranjeet Singh as he has signed in his presence. He further deposed that he could also identify the passbook of the above said account which was issued from their bank. He further deposed that he has also seen the photocopy of the passbook which was attested by the then Branch Manager and the same was EX. PW 6/B and bearing his signature's at point A. He further deposed that he could identify his signature's as per the official record.
The witness was not cross examined by Sh. Pankaj Kumar, Ld. Counsel for accused despite opportunity being given.
FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 6 of 21 (viii) The prosecution thereafter has examined Sh. Pawan Verma from
OBC, Jallandhar as PW 7. He produced on record certified copy of account pertaining to S/B A/c No. SBRES103110 of one Sh. Saran Dass w.e.f 03.06.2002 to 01.10.2002 and the same was Ex. PW 7/A. The earlier statement of the same account submitted by the bank vide letter dated 29.11.2002 was Ex. PW 7/B and the letter was Ex. PW 7/C. He deposed that the pass book was Ex. POBC1 and was forged and fabricated one.
The witness was not cross examined by defence despite opportunity being given.
(ix) The prosecution has examined Sh. Vishvesh Rawal from Bank of Baroda, Jallandhar as PW 8. He produced on record certified copy of records pertaining to S/B A/c No. 1838 of Mr. Avtar Bhopal w.e.f 15.02.2005 to 04.07.2011. He further deposed that he has been authorized to depose in this case vide letter Ex. PW 8/A. Certified copy of the account was Ex. PW 8/B and the attested copy of the bank opening account form was Ex. PW 8/C. Attested copy of specimen signature card was Ex. PW 8/D. Earlier copy submitted by the bank was Ex. 8/E. He further deposed that he could not say as to whether pass book Ex. P1 was genuine or forged one. He deposed that it can be verified from the record of the bank.
The witness was not cross examined by defence despite opportunity being given.
(x) The prosecution has examined Mr. S.C. Gupta from FSL as PW 9. He had undergone his inservice initial training in the field of document examination and allied subject during the year 197073 from GEQD, CFI's, Calcutta. He has also contributed large number of research papers on the subject, which were published in National and International Journals.
FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 7 of 21
He deposed that documents related to this case were received in his lab from Additional Deputy Commissioner of police, New Delhi District vide their letter dated 10.03.2003, he examined all the documents which were marked disputed documents in 'Q'series, specimen writings / signatures in 'S'series. He further deposed that after carefully and throughly examining the disputed documents in all aspects of handwriting examination with the help of scientific instruments available in the lab and comparing them with their respective specimen writing / signature, he arrived at an definite conclusion in the form of opinion dated 24.04.2003, which were got typed by Government Stenographer and the same was Ex. PW 9/A bearing his signature at point A. He further stated that Ex. PW 9/A also bears signatures of Smt. K.B. Jena at point B, who has also independently examined all these documents and arrived at the same conclusion. The Ex. PW 9/A was forwarded by letter no. DXC131/2003/1294 dated 24.04.2003 and the same was Ex. PW 9/B. Ex. PW 9/B bearing signatures of Sh. S.K. Saxena which bears his signature at point C, the then GEQD. He further deposed that he knew the signatures of Sh. S.K. Saxena because he worked under him.
The witness was not cross examined by the defence Counsel despite opportunity being given.
(xi) The prosecution has examined Inspector Satish Malik as PW 10. He deposed that on 20.11.2002, he was posted as SI PS Chanakaya Puri and on that day at about 04.45 pm, he alongwith Ct. Jai Bhagwan were on patrolling duty near the Immigration section of Canadian High Commission where they met Mr. A. Milick, Counsellor, Canadian High Commission alongwith Mr. Rajeev Kumar Verma. He further deposed that Mr. A. Milick handed over a complaint alongwith the enclosures discussed in it against Rajeev Kumar Verma and on the basis of the complaint, he prepared rukka Ex. PW 10/A bearing his signature at point A. He handed over the rukka to Ct. Jai FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 8 of 21 Bhagwan at about 05.10 pm for getting the case registered at PS Chanakaya Puri. He further deposed that after sometime Ct. Jai Bhagwan returned to the spot and handed over copy of FIR and original rukka to him. At about 06.00 pm, he arrested the accused Rajeev Verma and personal search of accused Rajeev Verma was also carried out vide memo Ex. PW 10/B and Ex. PW 10/C respectively both bearing his signature's at point A. He further deposed that he recorded the disclosure statement of accused Rajeev Verma vide memo Ex. PW 10/D. He further deposed that specimen handwriting of accused Rajeev Verma was also taken. The accused was taken in police custody remand and on 22.11.2002 the accused Rajeev Verma in police custody on his volition pointed out the house of the present accused Jai Kohli at house no. 38 professor colony, Jhallandhar vide pointing out memo Ex. PW 10/E bearing his signature at point A. He joined independent witness professor S.M. Sharma in the investigation. He further deposed that on the pointing out of Rajeev Verma the accused Jai Kohli was arrested vide arrest memo Ex. PW 10/F bearing his signature at point A and PSM Ex. PW 10/G which bear his signature at point A. He further deposed that house search of accused Jai Kohli was conducted vide house search memo Ex. PW 10/H bearing his signature's at point A and during the search of the house 18 different exhibits were seized vide this memo which included blank passbooks, stamps, bank statements etc. He further deposed that the disclosure statement of accused Jai Kohli was recorded vide memo Ex. PW 10/I bearing his signature at point A. He further deposed that the specimen handwriting and signature of accused Jai Kohli was taken during the investigation and the same were sent to the CFSL and the report of the same was already Ex. PW 9/A. He further deposed that during the investigation, he had verified the bank statement, income tax statement of accused Jai Kohli which were infact seized from him and he had recorded the statement of the witnesses U/s 161 Cr. PC and completed the investigation in all respect. He identified the accused Jai Kohli present in the court.
In his cross examination by Mr. K.K. Manan, Ld. Counsel for the FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 9 of 21 accused, he admitted that accused Jai Kohli did not use any forged document in the embassy to get the student visa for Rajeev Verma. He denied the suggestion that nothing was recovered from accused Jai Kohli or that he planted the documents on him which were recovered from accused Rajeev Verma. He admitted that he took the specimen of the accused Jai Kohli in police custody without permission of the court. He denied the suggestion that he had falsely implicated accused Jai Kohli in the present case. He further denied the suggestion that he was deposing falsely being IO of the case.
(xii) The prosecution has examined HC Jai Bhagwan as PW 11. He deposed that on 20.11.2002, he was posted as Ct. at PS Chanakaya Puri and on that day at about 04.45 pm, he alongwith IO SI Satish Malik were on patrolling duty near the Immigration section of Canadian High Commission where IO met Mr. A. Milick, Counsellor Canadian High Commission alongwith Mr. Rajeev Kumar Verma. He further deposed that Mr. A. Milick handed over a complaint alongwith the enclosures discussed in it against Rajeev Kumar Verma on the basis of the complaint, IO prepared rukka already Ex. PW 10/A. He further deposed that IO handed over the rukka to him at about 05.10 pm for getting the case registered at PS Chanakaya Puri. He deposed that after sometime he returned to the spot and handed over copy of FIR and original rukka to IO. He further deposed that at about 06.00 pm, IO arrested the accused Rajeev Verma and personal search of accused Rajeev Verma was also carried out vide memo already Ex. PW 10/B and Ex. PW 10/C respectively. He further deposed that IO recorded the disclosure statement of accused Rajeev Verma vide memo already Ex. PW 10/D. He further deposed that specimen handwriting of accused Rajeev Verma was also taken. He further deposed that the accused was taken on police custody remand and on 22.11.2002 the accused Rajeev Verma in police custody on his volition pointed out the house of the accused Jai Kohli at house no. 38 professor colony, Jhallandhar vide pointing out memo already Ex. PW 10/E. He further deposed that IO joined independent witness professor S.M. Sharma in the FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 10 of 21 investigation. He further deposed that on the pointing out of Rajeev Verma the accused Jai Kohli was arrested vide arrest memo already Ex. PW 10/F and PSM Ex. PW 10/G. He further deposed that house search of accused Jai Kohli was conducted vide house search memo already Ex. PW 10/H and during the search of the house 18 different exhibits were seized vide this memo which included blank passbooks, stamps, bank statements etc. He further deposed that the disclosure statement of accused Jai Kohli was recorded vide memo already Ex. PW 10/I. He further deposed that the specimen handwriting and signature of accused Jai Kohli was taken during the investigation and the same were sent to the CFSL and the report of the same was already Ex. PW 9/A. He further deposed that during the investigation IO had verified the bank statement, income tax statement of accused Jai Kohli which were infact seized from him and IO had recorded the statement of the witnesses. He identified the accused Jai Kohli present in the court.
In his cross examination by Mr. K.K. Manan, Ld. Counsel for the accused, he admitted that accused Jai Kohli did not use any forged document in the embassy to get the student visa for Rajeev Verma. He denied the suggestion that nothing was recovered from accused Jai Kohli or that IO planted the documents on him which were recovered from accused Rajeev Verma. He admitted that IO took the specimen of the accused Jai Kohli in police custody without permission of the court. He denied the suggestion that accused Jai Kohli was falsely implicated in the present case. He further denied the suggestion that he was deposing falsely being interested witness.
5. Statement of accused Jai Kohli u/s 313 Cr. PC was recorded wherein he denied that on or about 20.11.2002 at High Commission of Canada, he alongwith co accused Rajeev Verma entered into criminal conspiracy to cheat said High Commission and for the purpose he forged the documents required. The present FIR Ex. PW 1/A was registered. He stated that it was a matter of record that on a complaint a rukka was prepared which was Ex. PW 10/A and further arrest and personal search of coaccused FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 11 of 21 Rajeev Verma was carried out vide Ex. PW 10/B and Ex. PW 10/C respectively. Disclosure statement of accused Rajeev Verma was Ex. PW 10/D, pointing out memo was Ex. PW 10/E. Thereafter, he was arrested and personally searched vide Ex. PW 10/F and Ex. PW 10/G respectively and his house was searched vide memo Ex. PW 10/H. His disclosure statement was Ex. PW 10/I. He further stated that it was a matter of record that other documents were exhibited by various PWs in order to prove the case and GEQD report was Ex. PW 9/A. He stated that it was a false case. He stated that all the PW's who have deposed against him were interested witnesses and interested in his conviction. He further stated that he was innocent and a victim of the circumstances. Nothing was recovered from his possession. He has not made any forged documents. He declined to lead DE and hence, DE stands closed.
6. I have heard final arguments on behalf of parties and perused the record. Before appreciating the evidence coming up on record, I find it relevant to refer here the provisions for the offences, which the accused has been charged with. Section 420 IPC Provides:
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. Section 471 IPC Provides:
Using as genuine a forged [document or electronic record]: Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 12 of 21 punished in the same manner as if he had forged such [document or electronic record]. Section 468 IPC Provides:
Forgery for purpose of cheating: Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 511 IPC Provides:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.: Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, an in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both. Section 120 B IPC provides:
Punishment of criminal conspiracy: (1)Whoever is a party to a criminal conspiracy to commit an offence punishable with death [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 13 of 21 imprisonment of either description for a term not exceeding six months, or with fine or with both.]
7. The present FIR was registered on a complaint lodged by complainant Mr. A. Milic, Counsellor, Canadian High Commission on 20.11.2002 wherein it was alleged that the accused Rajiv Verma applied for a Canadian Student Visa in the Embassy and in support of his application, he attached one Affidavit of Support, Income Tax papers, UCO Bank passbooks for Tripta Kumari and Raj Kumar and Fixed Deposit from Allahabad Bank in the name of Raj Kumar Verma. It was alleged that during the interview, accused Rajiv Kumar admitted that all his supporting document's were fraudulent and were arranged by accused Jai Kohli from Professor Colony, Jalandhar. On the basis of the complaint, the present FIR was registered. The accused Rajiv Kumar however pleaded guilty to the offences alleged against him on 25.03.2010 and was convicted by my Ld. Predecessor. Thereafter, the accused Jai Kohli only has faced trial in the present case. It has been alleged against the accused Jai Kohli that the aforesaid forged document's were got prepared by him.
8. The prosecution has examined as many as 11 witnesses to prove its case. The prosecution however has failed to examine the complainant Mr. A. Milic despite ample opportunities for the same being given. Process issued to the complainant was repeatedly received back with a report filed on behalf of Mr. Don Gautier, CBSA, Liaison Officer, High Commission of Canada wherein it has been reported that the complainant has departed India and no other representative of Canadian High Commission will attend the Court.
9. In the absence of the complainant hence original complaint filed on record remains unproved. The allegation that the alleged forged documents were presented by FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 14 of 21 the accused before the Canadian Embassy officials could not be proved in the absence of complainant. There is no linking evidence produced on record to connect the accused with the alleged offences. It was the complainant only who could have proved on record that the accused presented the alleged document before him.
10. As such whatever information has been given by the complainant is not admissible as evidence in the present case as per the Provisions in Section 60 of the Indian Evidence Act. The genesis and origin of the prosecution case is hence, falsified and unreliable. Further, the seizure memo produced on record does not mention that the said documents were handed over by the complainant nor it bears his signature as a witness, the same discredits the correctness and genuineness of the complaint as well as the seizure of the documents. To prove the allegations against the accused, it was incumbent upon the prosecution to examine the complainant in the witness box for proving the complaint and also to prove that the accused has infact produced the documents as alleged before the High Commission for procuring student visa for the co accused. It is well settled that non examination of the material witnesses adversely effects the case of the prosecution and an inference is to be drawn against the prosecution for the same and in case no witness is available or could not be produced then the benefit is to be given to the accused only and not to the Prosecution. Further, in case despite ample opportunities if the prosecution fails to produce the material witnesses, it calls for an adverse inference against the prosecution case. The non production of the material witnesses certainly introduced infirmity in the prosecution case. The omission on part of the prosecution to examine complainant is certainly serious and fatal to the case of the prosecution. Further, in the absence of the complainant, the testimony of other witnesses is all hearsay and in the circumstances of the present case, it is insufficient to prove guilt of the accused and cannot be relied upon to upheld conviction.
FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 15 of 21
11. Also, Counsel for accused has vehemently argued that the specimen signature's and the handwriting of accused Jai Kohli has been obtained by IO without permission of the court and hence the same should not be relied upon.
12. In this regard, reliance can be placed upon the Judgment passed by the Hon'ble Supreme Court in Sukhvinder Singh's case, 1994 Supreme Court Cases (Cri) 1376 and that by the Hon'ble Delhi High Court in Rakesh Kumar's Case, 2004 (1) JCC 111, relying upon the judgment pronounced by the Hon'ble Supreme Court in Sukhvinder Singh's case, the Hon'ble Delhi High Court in Rakesh Kumar's case held as follows:
17. "Moreover, the alleged specimen signatures / handwriting / thumb / finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the IO without prior permission from the Court. Facts in the case of Sukhvinder Singh and others Vs. State of Punjab (1994) 5 SCC 152, were that specimen handwriting of the appellant were taken under the directions of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused persons did not raise any objection thereto yet "Hon'ble Supreme Court observed that such specimen writing of the accused person could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime." In the present case the specimen signatures / writing / thumb impressions were obtained FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 16 of 21 during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhvinder Singh (Supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (Supra) it follows that the specimen writing / thumb impression / finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert / finger print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime."
13. Furthermore, it is settled proposition of law that expert's opinion is not a conclusive proof of the validity of the handwriting or document in question in the absence of any independent corroboration. The report of handwriting expert is not included in the list of documents which can be accepted as valid evidence without examining the author as per the scheme of Section 293 Cr. PC. Even otherwise, the said specimen handwriting of the petitioner was obtained without the permission of the Court by the investigating agency. In Ram Chandra v. State of Uttar Pradesh AIR (1957) SC 381, 388 it was observed that "the expert evidence as to handwriting is 'opinion evidence' and it can rarely, if ever, take the place of substantive evidence. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR (1964) SC 529 it was observed that acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence. In State of Gujarat v. Vinaya Chandra Chhota Lal Pathi Criminal Appeal No. 43 of 1964, it was held that "a court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 17 of 21 a court to record a finding about a person's writing in certain document merely on the basis of comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of Section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not." Hence, I am in agreement with the contention of the learned Counsel for the petitioner that the learned ASJ has gravely erred in not appreciating the fact that the opinion of an expert under Section 45 of the Indian Evidence Act is merely an opinion and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration.
14. The only witness who has supported the case of the prosecution was PW 9 who has partly supported the FSL result produced on record Ex. PW 9/B. The PW 9 Mr. S.C. Gupta from FSL has deposed that he has examined all the document's which were marked in 'Q'series, specimen writings / signatures in 'S'series. He specifically deposed that after examining all disputed document's in all aspects of handwriting examination with the help of scientific instruments available in the lab and comparing them with their respective specimen writing / signature, he arrived at an definite conclusion in the form of opinion dated 24.04.2003 which were prepared and the same was Ex. PW 9/A.
15. I have gone through the FSL result. It has been opined by the expert that the person who wrote the writings and signature's stamped and marked S1 to S36 which were specimen writings and signature's of the accused Jai Kohli also wrote similar FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 18 of 21 stamped and marked Q 1, Q 1A and Q10 which were writings and signature's on the visa application. It is further opined that the person who wrote the signature's in the enclosed portions stamped and marked S 37 to S 72 also wrote the enclosed signature similarly stamped and marked Q9 which is the signature's of the accused Jai Kohli on the certificate issued by Kohli & Associates. The expert further reported that it was not possible to express any opinion on rest of the items. It has hence come up that there was no opinion of the expert on the certificate dated 05.07.2002 issued by UCO Bank or any other document's allegedly forged by the accused Jai Kohli. The FSL result only shows that the signature's on the visa application form were that of the accused Jai Kohli. There is no opinion on the document's which were allegedly forged by the accused. The FSL result hence does not support the case of the prosecution.
16. Ld. APP for State however has vehemently argued that though the prosecution has not been able to lead any direct evidence to prove the case against the accused however the co accused Rajeev Verma for whose use, the alleged document's were forged has voluntarily pleaded guilty in respect of the involvement in the present case to cheat the complainant Embassy, hence, the prosecution has indirectly proved that the accused Jai Kohli who was facing trial was involved in the conspiracy to cheat the complainant Embassy.
17. There is no evidence coming up on record to show that the alleged document's were forged and used by the accused Jai Kohli for procuring visa from the complainant Embassy for the co accused Rajeev Verma. In these circumstances, hence, the argument advanced by Ld. Prosecutor regarding the indirect involvement of the accused cannot be sustained. In this regard, I rely upon the following Judgments also:
(a) The Hon'ble High Court of Gujrat in case of Kavit Vs. State of Gujrat High Court, while acquitting the accused persons had observed that to prove the FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 19 of 21 commission of offence of criminal conspiracy the prosecution was required to prove that there was a meeting of minds between the conspirators to do an illegal act and mere fact that they had made a confession or disclosure wherein they had allegedly confessed that they had entered into a criminal conspiracy to procure counterfeit currency notes was not sufficient to establish a charge.
It was further observed that "to prove the criminal conspiracy, the prosecution must establish that there was meeting of minds between two persons to do an unlawful act. It is very difficult to get direct evidence to prove criminal conspiracy and it can be proved only by circumstantial evidence. However, it is not sufficient in order to convict a person under this section, merely to prove that he had been associating with the other accused at a certain place and on his arrest endeavoured to extricate himself from being accused of some thing connected with the conspiracy; and the prosecution cannot complete what is necessary in order to show that he was a person who concerted with others by proving that he was friendly with the other accused and was anxious to escape observation or even was doing his best to conceal his whereabouts. In cases of conspiracy, the agreement between the conspirators cannot generally be directly proved, but only inferred from the established facts in the case. A conspiracy need not be established by evidence of an actual agreement between the conspirators and overt acts raise a presumption of an agreement and knowledge of the purpose of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of the different individuals in proof of the conspiracy. Overt acts may properly be looked at as evidence of the existence of a concerted intention and in many cases it is only by means of overt acts that the existence of the conspiracy can be made out. But the criminality of the conspiracy is independent of the criminality of the overt act. To prove conspiracy it is not necessary that there should be direct communication between each conspirer and every other but the criminal design FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 20 of 21 alleged must be common to all."
18. In view of the aforesaid, the argument advanced by Ld. APP cannot be sustained. The prosecution has pitted only the circumstances of plea of guilt of co accused which cannot be made basis for the conviction of the accused Jai Kohli for commission of offences u/s 420/468/471/511/120 B IPC. In the absence of the complainant and without corroboration from the expert's opinion, the testimony of other PW's is insufficient to upheld conviction.
19. In view of the above discussions, the prosecution has totally failed to prove its case beyond reasonable doubts, the accused Jai Kohli stands acquitted. His bail bond stands cancelled.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 30th January,2013 ) METROPOLITAN MAGISTRATE This Judgment contains 21 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS, DELHI FIR NO.: 300 of 2002 POLICE STATION: CHANAKAYA PURI U/S: 420/511/468/471 IPC 21 of 21