Delhi District Court
Metropolitan Magistrate 07 vs Ramesh Kumar on 14 August, 2014
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 07, ROOM NO. 137,
TIS HAZARI COURTS, DELHI.
STATE
VERSUS
RAMESH KUMAR
FIR No. : 231/99
P.S. : Subzi Mandi
U/S : 420/468 IPC
1. Serial No. of the case : 02401R0181172000
2. Date of commission of offence : 05.07.1999
3. Name of the Complainant : SH. G. SUDHAKAR,
SDM, Sadar Bazar,Delhi.
4 Name of the accused and : RAMESH KUMAR,
his parentage and residence S/o Lt Sh Hari Ram
R/o J72 Seelampur,
Delhi 53
5. Date when judgment : 08.07.2014
was reserved
6. Date when Judgment : 14.08.2014
was pronounced
7. Offence Complained of : U/s 420/468 IPC
8. Plea of accused : Pleaded not guilty
9. Final Judgment : Convicted for offence U/s
465 IPC
FIR No. 231/99
PS Subzi Mandi
State Vs. Ramesh Kumar page 1/15
Brief Statement of reasons for the decision of the case
1. Briefly stated facts of the case are that on 05.07.1999 one Hazari Lal appeared before the SDM, Sadar Bazar and stated that one person is attesting documents with the signature and seal of SDM for Rs. 150/ as fees. Thereafter SDM, Sadar Bazar send the police staff who apprehended the accused and recovered the stamps/seal from the accused of SDM, Darya Ganj and Sh. D.S Dalal, Notary Public. FIR was registered. Challan was filed on 01.02.2000.
2. After hearing arguments on charge separate charge was framed against the accused on 17.02.2004 for offence U/s 420/468 IPC to which he pleaded not guilty and claimed trial.
3. In support of their case, prosecution has examined seven witnesses namely PW1 G. Sudhakar, PW2 HC Prem Singh PW3 Ct Vijay Singh, PW4 ASI Som Dev, PW5 Ct Satyavir Singh, PW6 HC Jafruddin and PW7 Ct Raj Kumar to prove their case
4. Thereafter, statement of accused was recorded U/s 313 Cr.P.C on 08.09.2013 wherein he denied the allegations and admitted that he was arrested in present case. He also stated that he only sold the stamp paper to Hazari Lal and same was attested by some other person.
5. In terms of Sec 294 Cr.P.C accused has admitted the genuineness of FSL result and same was proved as Ex P1 .
6. In his defence, accused examined DW1 Chaman Lal, DW2 Kapil Dev and DW3 Suleman.
7. PROSECUTION EVIDENCE 7.1 PW1 is the complainant. He stated that on 05.07.1999 while he FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 2/15 was working as SDM, Sadar Bazar received Hazari Lal came to him and stated that one person is attesting affidavit under the signature and stamp of the Court and accordingly he deputed Naib Court to go along with him to trace the said person. He further stated that seal of then SDM, Dariya Ganj Sh. Raj Kumar and seal of Notary Public D.S Dalal were recovered from possession of Ramesh Kumar. He proved his complaint as Ex. PW1/A but stated due to lapse of time he cannot identify the same. During cross examination by accused he failed to recollect the time at which complaint was made. He also stated that the document was one affidavit/undertaking which was supposed to have signed by me but the same was forged by the accused by using false seal and stamp. He stated that he do not remember whether he was in the Court or in the Chamber at the time when the accused was produced before him. He also stated that one affidavit along with seal and stamp of the Court of SDM, Dariya Ganj along with the seal of Notary Public Sh D.S. Dalal, were produced before him along with the written complaint of the complainant. He admitted that the accused along with seal and stamp were produced by the Naib Court before him and the same were handed over to Incharge, PP Tis Hazari Court. He also stated that his specimen signature and specimen of seal and stamp of the Court, to the police for investigation. 7.2 PW2 prove the registration of FIR vide Ex. PW2/A. 7.3 PW3 is the Naib Court in the office of then SDM, Sadar Bazar. He stated that on 05.07.1999, one person namely Hazari Lal inform that the accused attesting documents of public with the seal of SDM, Sadar Bazar without any authorization and therefore he along with Ct FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 3/15 Sukhbir on direction of SDM, Sadar Bazar apprehended the accused who was putting seal of SDM, Sadar Bazar on documents. He also stated that in his presence seals of SDM, Dariya Ganj and D.S. Dalal, Notary Public were recovered from the possession of accused and same were seized vide Ex. PW3/A. During the cross examination by counsel for accused, he failed to recollect whether Hazari Lal produced any documents or who recorded his statement. He denied the suggestion that no seal was recovered from the possession of accused and being Naib Court has deposed falsely. 7.4 PW4 also stated that about apprehension of the accused and recovery of alleged stamps from his possession. This witness was cross examined by Ld APP wherein he stated that seals recovered from possession of accused was of SDM, Dariya Ganj, Sh. Raj Kumar and Notary Public Sh. D.S.Dalal. During cross examination by defence counsel he stated that accused was searched in his presence and the fake seal were tallied with the original seal. He also stated that accused was arrested in his presence and he himself has no done any inquiry regarding genuineness of seals recovered from possession of accused. He failed to recall about preparation handling over memo of seals. He denied the suggestion that seals were not recovered from the possession of accused.
7.5 PW5 stated that on 05.07.1999 on the directions of SDM, Sadar Bazar, he along with Ct Vijay, HC Som Dev and Hazari Lal went near the staircase of Tis Hazari Courts wherein Hazari Lal pointed towards accused as the person who had put the signature of SDM on the affidavit. He further stated that accused on interrogation revealed his FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 4/15 name as Ramesh Kumar and thereafter two seals were recovered from his pocket. During cross examination he stated that Hazari Lal has taken them to the accused and at the instance of Hazari Lal, accused was apprehended. He stated that documents Ex. PW5/DX1 bears seal marka of Sh. Raj Kumar, SDM, Dariya Ganj and Notary Public, Delhi. He denied that no seal of SDM, Sh. Raj Kumar, Dariya Ganj was recovered from the possession of accused. He admitted that he had not made any inquiry from D.S. Dalal to the effect as to how his seal was found in possession of the accused. He denied the suggestion that the seals was not recovered from the accused and he himself has planted upon accused. He admitted that he had not interrogated the accused about the source from which he had procured those seals. He also stated that he has not inquired from Hazari Lal as to whether accused has forged any other documents.
7.6 PW7 stated that on 05.07.1999 while he was on patrolling along with SI Radhey Lal, they received wireless message and therefore reached the Court of Sh. G. Sudhakar wherein accused was handed over along with two stamps which were seized by the IO. He stated his presence at the time of arrest and personal search of accused. He also stated that pointing out memo was prepared at the instance of accused. He identified the accused as well as the case property. During cross examination by defence he stated when they gone to the seat of accused where lot of people gathered. He failed to state to whom seal was handed over after its use by the IO. 7.7 In his statements U/s 313 Cr.P.C, accused admitted that he was working as stamp vendor and have sold stamp paper to Hazari Lal FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 5/15 but the said inculpatory statement alone is not sufficient for the conviction of the accused as the statement is not an evidence as being given without oath as held in Mohan Vs. State of MP CRLJ 19 (MP).
8. DEFENCE EVIDENCE 8.1 DW1 stated in year 1999, Naib Court of SDM was present near the seat of accused along with one person and stated that a forged affidavit has been prepared by the accused. He further stated that accused was called in the court of SDM wherein he denied preparing the forged affidavit. During cross examination by Ld APP he admitted the affidavit in question was not prepared in his presence. He also admitted he is having good relations with the accused. 8.2 DW2 stated in the year 1999 accused was stamp vendor and one day lot of people gathered near his seat with relation to one stamp paper. During cross examination by Ld APP he admitted he is not having personal knowledge for the present case. 8.3 DW3 also stated that one day in the year 1999 accused was called in the Court of SDM. He failed to recollect for what purpose accused was called in the court of SDM. During cross examination by Ld APP he admitted that he has no personal knowledge about the present case.
9. Ld APP for the state argued that offenses against the accused are proved as all the witnesses examined by prosecution have supported the case and FSL result is also against the accused. On the other hand, Ld Counsel for the accused argued that no ingredients of cheating were proved by the prosecution. He also pointed out there are material contradiction with testimony of witnesses and he prays FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 6/15 for acquittal.
10. APPRECIATION OF EVIDENCE 10.1 Forgery is defined in Sec 463 IPC as;
"whoever makes any false electronic or part of a documents or electronic record with intent to cause damages 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 any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery".
Sec. 464 defines and the amounts making the false documents. It provides that in Sec. 464 a person is said to make a false documents or false electronic recorded First - who dishonestly or fraudulently ● makes , signs, seals or executes a documents or part of a documents ● makes or transmits any electronic record or part of any electronic record ● affixes any (electronic signature) on any electronic record.
● makes any mark denoting the execution of a documents or the authenticity of the (electronic signature) With the intention of causing it to be believed that such documents or part of document , electronic record or electronic signature was made,signed, sealed, executed, transmitted or affixed by or by the FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 7/15 authority or a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed 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 either by himself or by any other person whether such person be living or dead at the time of such alteration Thirdly Who dishonestly or fraudulently causes any person to sign ,seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of deception practiced upon him, he does no know the contents of the document or electronic record or the nature of the alteration.
10.2 The argument of Ld Counsel there are material contradictions in the version of prosecution witnesses is humbly rejected as the contradictions pointed out are very minuscule. The contradictions are not fatal to the case of prosecution. Another point raised by the counsel that there is no investigation whether any inquiry was made from Notary Public Sh. D.S. Dalal is also rejected as even in the absence of such inquiry the prosecution case can be proved against the accused. Hazari Lal who approached the complainant G. Sudhakar was unfortunately expired on 04.07.2011 before he could be examined in the court. Even though the case was registered in 1999 but due to one reason or another prosecution has failed to examine Hazari Lal before his unfortunate death and therefore, the factum of cheating could not be substantiated against the accused.
FIR No. 231/99
PS Subzi Mandi
State Vs. Ramesh Kumar page 8/15
10.3 But all other witnesses have identified the accused as the person from whose possession the stamp/seal of SDM, Dariya Ganj as well as notary public Sh D.S. Dalal were recovered. The non identification of the seal by the complainant i.e PW1 due to lapse of time is understandable as he was examined on 26.10.2006 i.e after seven years of the offence. All other witnesses have identified the accused as the person from whose possession the alleged seals were recovered. Moreover, the statements of defence witnesses wherein they stated that they found police staff at the sheet of accused in relation to an inquiry about the forged stamp paper adds weight to the version of the prosecution case.
10.4 Moreover, the FSL report prepared by Government examiner of Questioned Documents was proved as Ex P1 and its genuineness was not disputed by the accused vide his statement U/s 294 Cr.P.C recorded separately. I have meticulously perused the FSL result wherein the sample signature of G. Sudhakar were numbered as A1 to A4 whereas the sample signature of accused were numbered as S1 to S5 and the alleged forged signature on Ex. PW5/DX1 was numbered as Q1. The sample seal and stamp were numbered as A5 to A8 whereas the questioned seal and stamp were numbered as Q2 to Q4. As per the FSL result the sample signature as well as sample seal of G. Sudhakar were not matching with the questioned signature and questioned seal/stamp. But the sample signature of accused Ramesh had matched with the Questioned Signature i.e Q1. Even though the author of FSL result was not examined but his report is also admissible in terms of Sec 293 Cr.P.C.
FIR No. 231/99
PS Subzi Mandi
State Vs. Ramesh Kumar page 9/15
11. In the present case accused has been charged for cheating as well as committing forgery for the purpose of cheating but prosecution has failed to prove the ingredients against the accused as unfortunately Hazari Lal the alleged victim of forged documents could not be examined. Therefore, the ingredients of Sec 420 are not made out against the accused. Even the ingredients on Sec 468 IPC could not be substantiated against the accused as the alleged cheating itself is not be proved. But at the same time the handwriting/signature of accused are matching with the handwriting/signature on the questioned document i.e Ex. PW5/DX1 which implies that he is the author of signature/handwriting are point Q1 which is the attestation as "sworn before me and signatures with date on 05.07.1999" alongwith the stamp and seal which are numbered Q2 and Q3. I had no occasion to doubt the opinion of handwriting expert as he is government examiner and no bias can be attached to his opinion. The onus is now upon the accused to disprove the handwriting opinion of expert. But accused himself has not doubted the genuineness of the said report. The handwriting/ signature of accused matched with the handwriting/ signature on the questioned documents and denial of the accused that he has not signed on the said documents raises an important question as to whether the document which is an alleged undertaking on a stamp paper was forged or not by the signatures of Sh. G. Sudhakar, then SDM of Sadar Bazar.
As per the definitions for false documents, whoever dishonestly signs on a document is said to make a false document and maker of false document stands committed for forgery of such document. A FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 10/15 person commits forgery when he prepares forged document with intent to cause damages 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 any express or implied contract or with intent to commit fraud or that fraud may be committed.
12. In the present case, it has come on record that it is the accused Ramesh Kumar who has signed on the questioned document. But no separate charge has been framed against him for offence U/s 465 IPC. Now it is to be seen whether without resorting to Section 216 Cr.P.C for alteration of charge, can he be convicted for the offence U/s 465 IPC. In this regard, Hon'ble Supreme Court observed in Rafiq Ahmed @ Rafi v. State of U.P. 2011 (11) SCR 907:
"Fine distinctions of law, if discerning, should normally be recognized and permitted to operate in their respective fields. With the development of criminal jurisprudence, the law has recognized the concept of cognate charges besides alternative charges. The differentiation between the offences from the same family in contradistinction to the offences falling in different categories have persuaded the courts to apply the principle of `cognate offences' and punish the offender of a less grave offence because the offence of greater gravity has not been proved beyond reasonable doubt. This principle is to be applied keeping in view the facts and circumstances of a given case and notwithstanding the fact that no charge for such less FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 11/15 grave offence had been framed against the offender".
13. In the Rafiq (Supra) it was further elaborated about the distinction and similarities between offences of same species wherein offences of dacoity u/s 396 and murder u/s 302 IPC were analyzed. It was held that;
"The ingredients of both these offences, to some extent, are also different inasmuch as to complete an offence of `dacoity' under Section 396 IPC, five or more persons must conjointly commit the robbery while under Section 302 of the IPC even one person by himself can commit the offence of murder. But, as already noticed, to attract the provisions of Section 396, the offence of `dacoity' must be coupled with murder. In other words, the ingredients of Section 302 become an integral part of the offences punishable under Section 396 of the IPC. Resultantly, the distinction with regard to the number of persons involved in the commission of the crime loses its significance as it is possible that the offence of `dacoity' may not be proved but still the offence of murder could be established, like in the present case. Upon reasonable analysis of the language of these provisions, it is clear that the Court has to keep in mind the ingredients which shall constitute a criminal offence within the meaning of the penal section. This is not only essential in the case of the offence charged FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 12/15 with but even where there is comparative study of different penal provisions as the accused may have committed more than one offence or even offences of a graver nature. He may finally be punished for a lesser offence or vice versa, if the law so permits and the requisite ingredients are satisfied".
14. The judicial pronouncements show a consistent trend that wherever an accused is charged with a grave offence, he can be punished for a less grave offence finally, if the grave offence is not proved. Offence U/s 465 IPC is a lesser offence of the same species as that of Section 468 IPC. Therefore, I am of the opinion that accused can be convicted for the lesser offence though he has been charged for graver offence as the ingredients of Section 465 IPC are independently proved beyond reasonable doubt. Code of Criminal Procedure is designed to further ends of justice and not to frustrate them by the introduction of endless technicalities.
15. On the basis of evidence of record and above discussion, I am satisfied that accused has failed in putting any probable defence and case of the prosecution is proved beyond reasonable doubt against the accused. Accordingly, the accused Ramesh Kumar is convicted for the offence punishable U/s 465 IPC.
Put up for arguments on sentencing at 2pm.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT) COURT ON 14.08.2014 METROPOLITAN MAGISTRATE 07 CENTRAL/ TIS HAZARI COURTS DELHI.
FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 13/15 IN THE COURT OF SH. PAWAN SINGH RAJAWAT, METROPOLITAN MAGISTRATE 07, ROOM NO. 137 (CENTRAL), TIS HAZARI COURTS:DELHI. STATE VERSUS RAMESH KUMAR FIR No. 231/99 P.S SUBZI MANDI U/s 465 IPC At 2.00 PM Present : Ld APP for the State. Convict Ramesh Kumar with counsel. O R D E R ON SENTENCING.
Arguments on the point of sentence heard today. Ld. APP for the State submits that the offence by the convict is proved. He submits that convict be sentenced as per law.
On the other hand counsel for convict submits that convict is facing trial for last 13 years and is the sole bread earner of his family. He prays for leniency.
In the present case, convict has forged the signatures and stamp of SDM, Sadar Bazar. In view the fact that convict has tried to subvert the judicial system by forging signature of SDM which may lead into failure of justice. Hence, no grounds for leniency are made out.
Accordingly, convict Ramesh Kumar is sentenced to Rigorous imprisonment for period of one year (01 year) FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 14/15 for the offence punishable U/s 465 IPC. Convict shall have the benfit of Section 428 Cr.P.C to set off the period of detention already undergone.
At this stage, an application terms of Section 389 Cr.P.C for suspending the sentence and releasing convict on bail till pendency of appeal which he intend to file is moved. Accordingly, convict is admitted to bail on furnishing PB and SB in sum of Rs. 25,000/-, sentence is suspended. Bail bond furnished, considered and accepted till 15.09.2014.
File be consigned to Record Room and Ahlmad is directed to place the Bail Bonds on 15.09.2014 awaiting the confirmation of filing of appeal. Copies of order be given free of cost to convict alongwith full papers i.e charge, exhibited documents of prosecution as well as defence, copies of statements of witnesses of prosecution as well as defence and statement of accused U/s 313 Cr.P.C be given free of cost to the convict.
Announced in the open (PAWAN SINGH RAJAWAT) court on 14.08.2014 METROPOLITAN MAGISTRATE07 CENTRAL, TIS HAZARI COURTS, DELHI FIR No. 231/99 PS Subzi Mandi State Vs. Ramesh Kumar page 15/15