Delhi District Court
State vs Rajesh Malhotra Etc on 9 August, 2024
IN THE COURT OF MS. RICHA SHARMA, ADDITIONAL
CHIEF JUDICIAL MAGISTRATE-01, TIS HAZARI COURT,
CENTRAL DISTRICT:DELHI.
STATE VS. RAJESH MALHOTRA &
ORS.
FIR No. 403/2000
PS: IP Estate
JUDGMENT
(a) Cr. No. of the case 290970/2016
(b) Date of offences Between 1999-2000
(c) Name of Complainant RAJESH KUMAR
(d) Accused (1) Rajesh Malhotra S/o
Devraj Malhotra
(2) Vijay Kher S/o late Sh.
K. G Kher.
(3) Gyan Prakash S/o Jagan
Nath Sinha
(4) Madhusudan Tripathi S/o
Laxmi Narain Tripathi
(5) Kailash Kumar S/o
Mahavir Prasad
(6) Sheela W/o Chander
(7) Mohan Singh S/o Attar
Singh
(8) Kausham Lata W/o
Mohan Singh
(9) Vidya Devi W/o Jai
Karan
(10) Arun Saraf S/o Late
Chattar Bhuj Saraf
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 1 of 70
PS IP Estate
(11) Johny Kumar S/o
Sambhu Kumar
(12) Amarjeet Kaur W/o
Sardar Gurcharan Singh
(13) Naresh Kumar S/o
Phool Singh
(14) Mamo Devi S/o Late
Phool Chand
(15) Tej Bhan S/o Jeta Ram
(16) Sardar Singh S/o Sukh
Ram
(17) Rakesh Sharma S/o
Babu Ram
(18) Subhash Chand S/o
Chaman Lal
(19) Pritam Singh S/o Pratap
Singh
(20) Ram Bholi W/o Late
Sh. Ganga Dutt
(21) Sunil Kapoor S/o Sh.
Krishan Kapoor
(22) Prem Kumar S/o G.D.
Malik
(23) Vidur Kumar @ Uday
Kumar S/o Sh. Bharat
(e) Offences Under Section
420/468/471/120B of The
Indian Penal Code, 1860
AND 66 I.T. Act.
(f) Plea of accused persons Pleaded not guilty.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 2 of 70
PS IP Estate
(g) Date of institution 18.12.2002
(h) Date when judgment was 09.08.2024
reserved
(i) Date of judgment 09.08.2024
(j) Final Order ACQUITTAL
1. Vide this judgment; I shall decide the final outcome in FIR No. 403/2000, registered at Police Station, IP Estate, wherein alleging the commission of the offences punishable under sections 420/468/471/120B of The Indian Penal Code, 1860 (shall be referred to as 'IPC' in short) against all accused persons present FIR was registered. (The matter has already been settled against accused Kausham Lata, Mohan Singh, Rakesh Sharma, Prem Kumar, Tej Bhan, Naresh Kumar, Johny Kumar, Vidya Devi, Sunil Kapoor, Ram Bohli and Amarjeet Kaur in plea bargaining).
PROSECUTION CASE
2. The prosecution's case in brief is that, in between the year 1999-2000, all accused persons entered in a criminal conspiracy and agreed to do an illegal act or an act which was not illegal by illegal means and for the purpose of the criminal conspiracy alongwith co-accused persons entered into a criminal conspiracy to cheat DVB by making/ posting fake entries of payments of bills in the billing ledgers in computer records and thereby committed offence punishable u/s 120B IPC.
3. Accused Kailash Kumar conspired alongwith co-accused persons and cheated the DVB and deceived the DVB by FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 3 of 70 PS IP Estate preparing fake IR No. 18059 vide which fake payment entries at serial no.1 to 7 of the chart submitted by the DVB were forwarded which was not found posted in the billing ledgers and accused Kailash Kher by making fake IR shown fake payments to various K numbers as detailed in complaint mark A for the billing month of May, 1999 and January, 2000, thereby causing wrongful loss to the DVB and thereby committed offences punishable u/s 420 read with section 120B IPC.
4. All accused persons committed forgery intending that the documents as well as the electronic records forged shall be used for the purposes of cheating and committed forgery in respect IR no. 18095 vide which fake payment entries at serial no.1 to 7 of the charged submitted by DVB and in furtherance of their criminal conspiracy prepared a new register along with the back date entries and thus, committed offence punishable u/s 468 read with section 120B IPC.
5. Accused persons namely Rajesh Malhotra, Vijay Kher, Madhu Sudan Tripathi caused the evidence of the commission of the offence to disappear by taking out the pages of old register and by preparing new register with the back date entries and thereby committed an offence punishable u/s 201 read with section 120B of IPC.
6. That K.No. SN-004559481 registered in the name of Kali Charan, who sold the house to the accused Ram Boli and accused Ram Boli have been using this K number for the consumption of electricity and dishonest or fraudulently prevented the demand of electricity bill of Rs. 42,340/- for the FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 4 of 70 PS IP Estate billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
7. That K.No. SN-0035495 registered in the name of Chander i.e husband of accused Sheela, who died on 02.07.1975 and after his death accused Sheela have been using this K number for the consumption of electricity and dishonest or fraudulently prevented the demand of electricity bill of Rs. 58,520/- for the billing month of January, 2000 and thus, committed an offence punishable u/s 422 IPC.
8. That K.No. SN-422138782 registered in the name of accused Kausham Lata and using this K number for the consumption of electricity and dishonest or fraudulently prevented the demand of electricity bill of Rs. 16,810/- for the billing month of January, 2000 and thus, committed an offence punishable u/s 422 IPC.
9. That K.No. SN-000542137 registered in the name of accused Mohan Singh and using the said K number for the consumption of electricity and dishonest or fraudulently prevented the demand of electricity bill of Rs. 10,490/- for the billing month of January, 2000 and thus, committed an offence punishable u/s 422 IPC.
10. That K.No. SN-42213571 registered in the name of Ram Chander and accused Rakesh Sharma using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 12,890/- for the billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 5 of 70PS IP Estate
11. That K.No. CL-411137313 registered in the name of accused Vidur Kumar @ Uday Kumar and accused Vidur Kumar @ Uday Kumar using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 1,02,280/- for the billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
12. That K.No. CL-413134396 registered in the name of accused Prem Kumar and accused Prem Kumar using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 61,880/- for the billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
13. That K.No. SN-422133261 registered in the name of Smt. Chandara Devi who transferred the rights of the house through GPA to accused Mamo Devi and accused Mamo Devi using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 63,970/- for the billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
14. That K.No. SN-422135564 registered in the name of accused Tej Bhan and accused Tej Bhan using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 37,370/- for the billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
15. That K.No. SN-422133260 registered in the name of accused Naresh Kumar and accused Naresh Kumar using this K FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 6 of 70 PS IP Estate number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 15,020/-/- for the billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
16. That K.No. SN-000035518 registered in the name of Bhagwani, mother of accused Johny Kumar and accused using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 26,290/- for the billing month of January, 2000 and thus, committed an offence punishable u/s 422 IPC.
17. That K.No. SN-422138527 registered in the name of Jai Karan, husband of accused Vidya Devi and accused using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 17,620/- for the billing month of January, 2000 and thus, committed an offence punishable u/s 422 IPC.
18. That K.No. SN-401132683 registered in the name of Girvar and accused Sunil Kapoor using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity bill of Rs. 20,430/- for the billing month of May, 1999 and thus, committed an offence punishable u/s 422 IPC.
19. That K.No. SN-4221136013, S-549 on or about in the year 2000, accused Amarjeet Kaur was owing house no. A-4A, DDA Flats, Basti Sarai Rohilla, Delhi and accused Amarjeet Kaur using this K number for the consumption of electricity and dishonestly or fraudulently prevented the demand of electricity FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 7 of 70 PS IP Estate bill of Rs. 22,940/- for the billing month of January, 2000 and thus, committed an offence punishable u/s 422 IPC.
20. Upon completion of investigation, charge-sheet was filed in the Court on 18.12.2002, against all accused persons for the alleged commission of the offences punishable under sections 420/468/471/120B IPC and 66 IT Act. Twenty Seven witnesses were cited to be examined to prove its case by the prosecution.
21. Perusal of the record, shows that accused Arun Saraf already stands declared as Proclaimed Offender vide order dated 22.11.2006, by the Ld. Predecessor of this Court. Further, proceedings against accused Sheela and Mamo Devi already stands abated vide order dated 28.11.2011 and 21.11.2014 respectively and proceedings against accused persons namely Sardar Singh, Subhash Chand and Pritam Singh already stand abated vide order dated 22.05.2006. Further, accused Gyan Prakash stands discharged vide order dated 16.04.2008.
22. On 07.05.2003, cognizance of offences was taken against all accused persons and copy of charge-sheet was supplied to them in compliance of Section 207 of Cr.PC. and annexed documents being supplied to them in compliance of Section 207 Cr.PC CHARGE
23. On 10.06.2008, charge was framed against accused persons namely Kailash Kumar, Rajesh Malhotra, Vijay Kher and M.S. Tripathi for the alleged commission of the offences punishable under sections 468 r/w 120-B IPC.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 8 of 70PS IP Estate Charge was framed against accused Kailash Kumar for the alleged commission of the offence punishable under section 420 IPC.
Charge was framed against accused persons namely Rajesh Malhotra, Vijay Kher and M.S. Tripathi for the alleged commission of offence punishable under section 201 IPC.
Charge was framed against accused persons namely Ram Bholi, Sheela, Kausham Lata, Mohan Singh, Rakesh Sharma, Vidur Kumar, Prem Kumar, Mamo Devi, Tej Bhan, Naresh Kumar, Johny Kumar, Vidya Devi, Sunil Kapoor and Amarjeet Kaur for the alleged commission of the offence punishable under section 422 IPC by the then Ld. Presiding Officer of the Court, to which they pleaded not guilty and claimed to be trial.
24. Thereafter, matter was listed for prosecution evidence. Prosecution examined 15 witnesses to bring home the guilt of the accused.
PROSECUTION EVIDENCE
25. To prove its case, prosecution has examined 15 witnesses.
S.No PW Name Documents Proved Exhibit
. No. No.
1 PW-1 Rajesh Complaint Ex. PW-
Kumar 1/A
List of consumers Ex. PW-
Annexure A 1/B
2 PW-2 ASI Kali Formal present FIR Ex. PW-
Ram 2/A
Endorsement on Ex. PW-
rukka 2/B
3 PW-3 Ratan Lal Data register Ex. P-1
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 9 of 70
PS IP Estate
and Ex. P-
2
4 PW-4 Arshad Letter no.1964 dated Ex. PW-
Ali 21/24.10.2000 4/A
Letter no. 2136 dated Ex. PW-
22.11.2000 4/B
Letter no. 2340 dated Ex. PW-
26.12.2000 4/C
Mis/PC/III/WS/Dir. Ex. PW-
Dated 29.11.2000 4/D
Copy of letter no. Ex. PW-
2269 dated 4/E
12.12.2000
5 PW-5 Arvind Nil
Bedi
6 PW-6 Yogesh Report Ex. PW-
Kumar 6/A
Sharma
7 PW-7 Shiv Nil
Kumar
Sharma
8 PW-8 Virender Nil
Pathak
9 PW-9 Jai Seizure memo of Ex. PW-
Bhagwan register 9/A
Verma
Register Ex. PW-
9/B
10 PW- Chandi Stationary stock Ex. PW-
10 Prasad register containing 10/A
Maithani 122 pages
Seizure memo of Ex. PW-
register 10/B
IR book sent to Ex. PW-
Vigilance Branch 10/C
through letter
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 10 of 70
PS IP Estate
11 PW- Narottam Written report no. Ex. PW-
11 Singh AFO(D)SKN/3/633 11/A
dated 27.12.2000
IR no. 18059 Ex. PW-
11/B
12 PW- Hari Nil
12 Kishan
13 PW- Detailed reasons for Ex. PW-
13 opinion no.1 to 3 and 13/A
detail of questioned
and standard
documents have been
mentioned in report
Enlarge print out of Ex. PW-
Q32 Annexure A to 13/B
the report
Specimen signatures Ex. PW-
and handwriting S1 to 13/C to
S20 of Sh. Vijay Ex. PW-
Khair, S21 to S36 of 13/D and
Sh. Rajesh Malhotra Ex. PW-
and specimen initial 13/F
mark S37 to S40 of
Sh. M.S. Tripathi
Admitted signature Ex. PW-
Mark A1 to A4 of 13/E1 to
Rajesh Malhotra Ex. PW-
13/E4
Questioned Ex. PW-
documents Mark Q21, 13/G
Q30, Q32, Q21, Q1,
Q4, Q22, Q31, Q5,
Q6, Q7,Q2, Q23
Questioned Ex. PW-
documents Mark Q8, 13/H
Q9, Q10,Q3
Questioned Ex. PW-
documents Mark Q11 13/I
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 11 of 70
PS IP Estate
and Q20 on receipt
no. 1998/645112
dated 03.12.1999
Questioned Ex.PW-
documents Mark Q12 13/J
to Q19 and Q24 to
Q29
14 PW- Sh. Detailed report Ex. PW-
14 Amidaks 14/A
h
15 PW- Sh. Rajan Arrest memo of Ex. PW-
15 Bhagat accused Gyan Prasad, 15/A to
Rajesh Malhotra, Ex. PW-
Madhu Sudan 15/E
Tripathi, Vijay Kher
and Kailash Kumar
Personal search Ex. PW-
memo of accused 15/F to Ex.
Gyan Prasad, Rajesh PW-15/J
Malhotra, Madhu
Sudan Tripathi, Vijay
Kher and Kailash
Kumar
Inspection memo of Ex. PW-
accused Gyan Prasad, 15/K to
Rajesh Malhotra, Ex. PW-
Madhu Sudan 15/O
Tripathi, Vijay Kher
and Kailash Kumar
26. Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the prosecution witness.
PW1:SH. RAJESH KUMAR/ CHIEF VIGILANCE OFFICER, MCD FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 12 of 70 PS IP Estate
27. As deposed by PW1/Sh. Rajesh Kumar, Chief Vigilance Officer. He deposed, that on 06.10.2000 he was posted as Chief Vigilance Officer in DVB and further deposed, that he made a complaint with regard of the fake receipt of posting of payment on account of electricity consumer to DCP, Crime Branch, New Delhi and the said complaint exhibited as Ex. PW-1/A and list of consumers annexure A exhibited as Ex. PW-1/B. The said witness was duly cross examined by the Ld. Defence counsel.
PW2: ASI KALI RAM
28. PW-2 ASI Kali Ram deposed, that on 06.10.2000 at around 6:45 pm, a rukka was brought by Ct. Ajeet Singh sent by SI Sunil Kumar from crime branch and on the basis of which he recorded formal FIR No. 403/2000 of the same and exhibited as Ex. PW-2/A. After registration of the case, copy of FIR and rukka was handed over to Ct. Ajeet Singh and Ct. Ajeet Singh handed over the same to SI Sunil Kumar for investigation purposes. He also made endorsement on rukka i.e Ex. PW-2/B. The said witness was not cross examined by Ld. Counsel for accused persons despite opportunity.
PW3:SH. RATAN LAL, RETD. MANAGER IT, DVB
29. PW-3 Sh. Ratan Lal deposed, that he did not remember the date, however, in year 2000, he was working as Manager of operations in EDP centre, Delhi Vidyut Board. He further FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 13 of 70 PS IP Estate deposed, that one FIR was registered with regard to fraudulent billing but he did not remember the FIR number perhaps the number of FIR was 403. The department appointed him as Nodal officer to coordinate between police and department.
Being a nodal officer he was required to collect the document from several branches and the same documents were handed over to the police after collecting the same. He did not remember the dates and number of documents which he handed over the documents to IO. Further, Arshad Ali, Assistant manager Legal has produced the documents mentioned in summons of the witness. He further deposed that on 02.11.2000 he gave the documents to the IO but without going through the file, he cannot say about the description of the documents.
He further deposed, that on 03.11.2000, he was working as Manager EDP and on that day he handed over the photocopy of the data register from 17.02.1999 to 29.04.2000 to the IO SI Sushil Kumar and later on he had given the said original register to IO but he did not remember the date. Said register exhibited as Ex. P-1 and Ex. P-2. He did not remember what other documents were given to the IO. He had given the photocopy of the attendance register to IO SI Sushil Kumar. He did not remember about the remaining documents given by him to the IO.
The said witness was cross examined by Ld. APP for the State as he was not supporting the case of the prosecution.
This witness was duly cross examined by Ld. Counsel for the accused.
PW4:SH. ARSHAD ALI, ASSISTANT MANAGER LEGAL FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 14 of 70 PS IP Estate
30. PW-4 Sh. Arshad Ali had brought the summoned record called from Sh. S.C. Sharma the then Director EDP, Center, Shakti Sadan, DVB and the said documents obtained from the office of Vigilance Department Delhi Transco Ltd. Raj Ghat Power House, New Delhi. The said documents were written by S.C. Verma, letter no. 1964 dated 21/24.10.2000 and exhibited as Ex. PW-4/A. Letter no. 2136 dated 22.11.2000 exhibited as Ex. PW-4/B, letter no. 2340 dated 26.12.2000 exhibited as Ex. PW-4/C, Mis/PC/III/WS/Dir. Dated 29.11.2000 exhibited as Ex. PW-4/D and photocopy of letter no. 2269 dated 12.12.2000 marked as Mark PW-4/E. The said witness was not cross examined.
PW5:SH. ARVIND BEDI, INVESTIGATOR, BSES
31. PW-5 Sh. Arvind Bedi deposed, that in the year 2000, he was working as Vigilance Inspector in Vigilance Department of erstwhile Delhi Vidyut Board having its office at Rajghat Power House. He was advised by his the then Chief Vigilance Officer, Sh. Rajesh Kumar to check manipulations in billing payments of electric bill as he got some information that some manipulations are being done in the payment of the electric bills of the customers.
He further deposed that after that, he went to the computer department from where the billing process was being done and record of the payments of electric bill of customer are kept. He got some printout of the list for reconciliation of division Shakti Nagar and Civil Lines from the computer FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 15 of 70 PS IP Estate branch. He reconciled these entries with billing ledgers of Division Shakti Nagar and Civil Lines and got suspicion payment made by some customer. He found 21 entries in the ledger book against which the payment of electric bills were being shown. In order to confirm these payments, he again contacted his computer department who informed him that no payment of electric bill of 21 customers whose connection he did not remember at this moment were received. He further investigated the matter to know as to how these payments were appearing in the ledger book.
This witness was expired and his name was deleted from the list of witnesses on 17.12.2016.
PW6: SH. YOGESH KUMAR SHARMA
32. PW-6 Sh. Yogesh Kumar Sharma deposed, that on 21.03.2021, he was posted as Manager, Admn at Shakti Sadan, ITO, New Delhi. He deposed that on that day, he was asked by the Director EDP to hand over the details regarding payments found against K. Number mentioned in his report i.e Ex. PW- 6/A. As per the computer data files, no payments of the K. Number mentioned in his report was not received according to the Data. He handed over his report to Nodal Officer who was the Manager of Operations of EDP Department.
The said witness was subjected to cross examination by Ld. Counsel for accused.
PW7:SH. SHIV KUMAR SHARMA FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 16 of 70 PS IP Estate
33. PW-7 Sh. Shiv Kumar Sharma deposed, that he worked in Delhi Vidyut Board from July 1992 till June 2002. He was working as Programmer in June 1999. On that day, Sh. Gyan Prakash, Manager EDP had asked Sh. M. S. Tripathi, the then Sr. Programmer to provide the details of a particular K. Number. This K. Number was the same regarding which some manipulations were already detected in the month of November 1997 and for which ex-Director, EDP was suspended. On the same day, Sh. M. S. Tripathi had given some papers to Sh. Gyan Prakash including the bill and ledger of that particular K. Number.
The said witness was not cross examined by Ld. Counsel for accused persons despite opportunity.
PW8:SH. VIRENDER PATHAK
34. PW-8 Sh. Virender Pathak deposed, that he worked in Delhi Vidyut Board from the year 1993 till June 2002. He was working there as Console Operator regarding processing of Civil Line Cycle 9 ( CL-9). Accused M. S. Tripathi, the then Sr. Programmer had asked him to reprocess the bill of CL Cycle-9 ( CL-9) of bill month May 1999 by stating that Gyan Prakash has directed him for doing so. He refused as it was improper on their part to interfere in normal process as the billing of that month had already been dispatched to district.
The said witness was subjected to cross examination by Ld. Counsel for accused persons.
PW9:SH. JAI BHAGWAN VERMA, SECTION OFFICER, ACCOUNTS SECTION, DVB FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 17 of 70 PS IP Estate
35. PW-9 Sh. Jai Bhagwan Verma deposed, that on 19.01.2001 he was posted as Section Officer in Accounts Section, District Civil Lines, Delhi Vidyut Board, Delhi. On that day, he had handed over one feeding register in respect of code no.6, cycle 8 of May 99 containing details of cycle no. 2, 4, 6 and 8. The register contains total no. of 200 pages. He also issued a certificate in this respect on the first page of the register and the register was seized by the police vide seizure memo i.e Ex. PW-9/A and register Ex. PW-9/B. The said witness was cross examined by Ld. Counsel for accused persons.
PW10:SH. CHANDI PRASAD MAITHANI, DRAFTSMAN, XEN OFFICE
36. PW-10 Sh. Chandi Prasad Maithani deposed, that on 25.12.2001 he handed over the stationary stock register of office containing 122 pages exhibited as Ex. PW-10/A to the IO vide seizure memo Ex. PW-10/B. He had put his initials on the each page of the register. As per the 55th page of the register the IR book no. 18001 to 18100 was issued to C.K.Dureja. He had also issued the certificate on the first page of the said register.
Police had also inquired him about the IR book no. 18001 to 18100 of 1998. This IR book was drawn by him from the stationary store along with other articles and he gave this IR book to Ram Babu Sharma but forgot to take his signature. He had searched for this IR book which was later on found from Ram Babu Sharma, Assistant Accountant in MSR section FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 18 of 70 PS IP Estate Daryaganj. Subsequently this IR book was sent to vigilance branch for the purpose of investigation through letter i.e Ex. PW-10/C. The said witness was duly cross examined by Ld. Counsel for accused.
PW11:SH. NAROTTAM SINGH
37. PW-11 Sh. Narottam Singh deposed, that on 27.12.2000 he handed over one written report no. AFO(D) SKN/3/633 dated 27.12.2000 exhibited as Ex. PW-11/A wherein he had stated that in January, 2000 no additional data was sent from District Shakti Nagar. IO had also shown him the IR no. 18059 dated 27.01.2000 in respect of additional data cycle file District Shakti Nagar which was containing my forged signature and the said IR was a fake one. This IR was not issued from his office. He had gone through the IR no. 18059 exhibited as Ex. PW-11/B and same does not bear his signatures and signatures at point A and B are not of him and same are forged.
This witness was subjected to cross examination by Ld. Counsel for accused.
PW12:SH. HARI KISHAN
38. PW-12 Sh. Hari Kishan deposed, that in June, 1999 his Manager Sh. Gyan Prakash called him in his office, Shakti Sadar and directed him to reprocess the data of CL-9 of year May, 1999 as there were some fake entries. He reprocessed the data in the office of Sr. Programmer Sh. M.S. Tripathi and he was present at that time. The office computer of the M.S. Tripathi FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 19 of 70 PS IP Estate was connected with the main system and correction was made. He did not remember the specific connection number which was detected and deleted by him in reprocessing. Similarly, he reprocessed the data for the month of June, 1999. Both the reprocessed data were taken on cartridge tape for the purpose of backup. He again reprocessed the data of May into the month of June, 1999.
On the tape, two separate backup data i.e before and after the reprocessing were taken. Both the backup data of May and June, 1999 were recorded on the billing register in the presence of his Sr. Programmer M.S. Tripathi. All the steps taken for the billing were again recorded in the new register. Old register was taken by M.S. Tripathi in his custody.
This witness was duly cross examined by Ld. APP for the State as he was not supporting the case of the prosecution. This witness was subjected to cross examination by Ld. Counsel for accused persons.
PW13:SH. HARSHVARDHAN, RETD. ASSISTANT DIRECTOR (DOCUMENTS) FSL
39. PW-13 Sh. Harshvardhan deposed, that the document of this case were forwarded by Sh. Rajan Bhagat, the then ACP, Delhi Police vide memo no. 498/ACP/S & R/CC and Nil dated 27.03.2001 and 20.04.2001. After careful and thorough examination of the supplied question and standard documents with the scientific instruments available in the laboratory under different lighting conditions, he has opined that:-
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 20 of 70PS IP Estate
(a) The person who wrote red enclosed signature / writings stamped and marked S1 to S20 also wrote the red enclosed signatures / writing similarly stamped and marked Q1 to Q10.
(b) The person who wrote red enclosed signature / writings stamped and marked S21 to S36 and A1 to A4 also wrote the red enclosed signatures / writing similarly stamped and marked Q11 to Q29.
(c) In the red enclosed part marked Q32 the existing figures of date reading as "17/5/99" are not the original figure of date and when examined under wave length 665n in projectina docucentre system, the original figure of date deciphered and appears to read as "30/6/99".
(d) It has not been possible to express any opinion Q30, Q31 on the basis of material at hand.
The detailed reasons for opinion no.1 to 3 as well as detail of questioned and standard documents have been mentioned in the report i.e Ex. PW-13/A and last page bears signature along with official stamp. Enlarge print out of Q32 Annexure A to the report i.e Ex. PW-13/B. The specimen signatures and handwriting S1 to S20 of Sh. Vijay Khair, S21 to S36 of Sh. Rajesh Malhotra and specimen initial mark S37 to S40 of Sh. M.S. Tripathi are exhibited as Ex. PW-13/C, Ex. PW-13/D and Ex. PW-13/F. Admitted signature Mark A1 to A4 of Rajesh Malhotra exhibited as Ex. PW-13/E1, Ex. PW-13/E2, Ex. PW-13/E3 and Ex. PW- 13/E4.
Questioned documents Mark Q21, W30, Q32, Q21, Q1, Q4, Q22, Q31, Q5, Q6, Q7, Q2, Q23 are exhibited as Ex. PW- 13/G in register already exhibited as Ex. P-8. Questioned FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 21 of 70 PS IP Estate documents Mark Q8, Q9, Q10, Q3 are exhibited as Ex. PW- 13/H in register already exhibited as Ex. P-9. Questioned documents Mark A11 and Q20 on receipt no. 1998/645112 dated 03.12.1999 exhibited as Ex. PW-13/I and Questioned documents Mark Q12 to Q19 and Q24 to Q29 are exhibited as Ex. PW-13/J. This witness was subjected to cross examination by Ld. Counsel for accused.
PW14:SH. AMIDAKSH, RETD. SR. SCIENTIFIC ASSISTANT (DOCUMENTS), FSL
40. PW-14 Sh. Amidaksh deposed, that document of the present case was received from I.P. Estate on 06.05.2002 for examination and report. The initial signatures mark Q1, specimen signature mark S1 to S54 and admitted signature i.e A1 to A28 are related to accused Kailash. He compared the documents thoroughly with the scientific aids which is available at FSL and opined that the person who wrote S1 to S54 and A1 to A23 also wrote Q1 and his detailed report exhibited as Ex. PW-14/A. This witness was duly cross examined by Ld. Counsel for accused.
PW15:SH. RAJAN BHAGAT, DCP -CRIME (CRO)
41. PW-15 Sh. Rajan Bhagat deposed, that on 09.04.2001 he received the file for further investigation of the present case from SI Suhil Kumar. He scrutinized the evidence on record, material seized by him. After going through all the relevant documents, he prepared the charge sheet and sent for prosecution opinion and for prosecution sanction for the FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 22 of 70 PS IP Estate government employee. Thereafter, he arrested the accused persons namely accused Gyan Prasad, Rajesh Malhotra, Madhu Sudan Tripathi, Vijay Kher and Kailash Kumar vide memos i.e Ex. PW-15/A, Ex. PW-15/B, Ex. PW-15/C, Ex. PW-15/D and Ex. PW-15/E. He conducted the personal search of above said accused persons vide memos i.e Ex. PW-15/F, Ex. PW-15/G, Ex. PW-15/H, Ex. PW-15/I and Ex. PW-15/J. Their inspection was also conducted vide inspection memos exhibited as Ex. PW- 15/K, Ex. PW-15/L, Ex. PW-15/M, Ex. PW-15/N and Ex. PW- 15/O. Thereafter, he filed the charge sheet in the court.
This witness was duly cross examined by Ld. Defence counsel.
42. Thereafter, PE was closed, vide order dated 23.02.2019 and matter was listed for recording of statement of accused persons.
STATEMENT OF THE ACCUSED PERSONS
43. Statement of the accused persons have been recorded in terms of provisions of section 313, Cr.P.C. They stated that they have been falsely implicated in the instant FIR. Accused persons opted to lead evidence in their defence.
DEFENCE EVIDENCE
44. To prove its case, accused persons have examined 3 witnesses.
S.No. DW Name Documents Proved Exhibit
No. No.
1 DW-1 Bharat Original receipt Ex. DW-
Kumar no. 50336 dated 1/A
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 23 of 70
PS IP Estate
24.01.1990
Original protocol Ex. DW-
of meter 1/B,
installation and Ex.DW-
removal dated 1/C and
07.10.2004 Ex. DW-
1/D
2 DW-2 Archana Earned leave Ex. DW-
record of Sh. Vijay 2/A
Kher
Joining report Ex. DW-
2/B
Appointment letter Ex. DW-
2/C
3 DW-3 Vijay Kher Zerox copy of Mark
casual register DW-3/A
DW-1/SH. BHARAT KUMAR
45. DW-1 Sh. Bharat Kumar deposed, that there are four electricity connection at the house. Two connections are in the name of his mother late Smt Shakuntala Devi and two are in the name of his son Vidur Kumar. Connection number CL411137313 in the name of Vidur was installed sometime in the year 1990. He has brought original of receipt no. 50336 dated 24.1.1990 when the aforesaid connection was applied.
Earlier his father late Sh. Sahdev used to manage all property related issues including paying bills and taxes until he fell ill sometime in June-July 1999. He used to also be involved and assist him. After his death on 9.1.2000 he took over all his responsibilities and he has been paying electricity bills.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 24 of 70PS IP Estate Sometime in the year 2004, the above mentioned connection was transferred from DVB to NDPL and new electronic meters were installed by them, at which time he was myself present. Today he has also brought the original of protocol of meter installation and removal dated 7.10.2004.
Since 1994 they did not receive any demand notice from DVB or any disconnection notice regarding any outstanding due which would be payable by them to DVB.
All the electricity bills were paid on time and at no point was there any unpaid bill for any month. After the present case was filed, he remember seeing a copy of the ledger book number D-851 filed by the police wherein several meter entries, dates and payment details were mentioned. Presently, he was unable to find the said document in the case file. As far as he remember, the said document had incorrect meter readings, amounts and surcharge etc and several others discrepancies were there. He believe the said documents is forged and fabricated and has been made up.
In the late 1990's his consumption of electricity units was very low, DVB never made any demand and therefore there never arose an occasion for him to have owed DVB any amount of Rs. 1,02,280.88/- as was shown in the copy of the said ledger. He was never asked to pay any such amount and therefore he did not make any such payment to DVB since it was never due in the first place. When the electricity meter was replaced in 2004 by NDPL they noted the meter to have five digit unit entries and FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 25 of 70 PS IP Estate that clearly shows that the four digit entries and the alleged consumption shown in the ledger book are incorrect and false. He never interacted with anybody with regard to the electricity bills. All bills were paid on time and he did not know who or which person has made the false entries in the ledger book filed by the police. The present case is false one against his son Vidur Kumar since no crime has been committed by him.
This witness was duly cross examined by Ld. APP for the State.
DW-2/MS. ARCHANA, ASSISTANT FINANCE OFFICER
46. DW-2 Ms. Archana, Assistant Finance Officer, BSES brought the following documents:-
a) Service file of A2 Vijay Kher which contains the appointment letter dated 19.3.1993, joining report for regularization of key punch operator dated 22.3.1993 and service attendance record of applicant pertaining to June 1999 regarding earned leave.
It is true that the post of key punch operator to which accused was appointment is the lowest ranking post and not decision making post. There is a hierarchy in our department and director is placed at the top.
DW-3/SH. VIJAY KHER
47. DW-3 Sh. Vijay Kher deposed, that the photocopy of his casual leave register has been filed in the court to show that he was on casual leave on 29.6.1999 to 30.6.1999. The original register has been weeded out from the officer, where he worked.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 26 of 70PS IP Estate His office at that time was known as Delhi Vidyut Board, which has now been abolished and now BSES Rajdhani Power Ltd and became its successor. He was now working in this said office.
At that time, he was junior clerk known as KPO (Key Punch Operator). This was a lowest post and not a decision making post. Above his post were Junior Console officer, who was in the category of officer and he was considered as a staff. Above JCO were CO, Programme officer, Senior Programme office, Managers, which were in three categories and directors, they were in the same office EDP office, Shakti Sadan, 6 th Floor, Kotla Road, ITO as him. The original certificate is not traceable as borne out by the evidence of Archana in officer, who had come to this court from the billing department, Janakpuri and also from the Ld Predecessor order, which shows that department office could not be served as the records are very old and not traceable. He had applied for a photocopy of this casual leave register from the office at the said time for his record.
When the case has started at the stage of enquiry, he had given a photocopy of this casual register to the IO to show that he was not there at the time of the offence. At the time of charge-sheet, he did not find the said document attach, which would had shown his innocence. Thus, he had file zerox copy as a secondary evidence as the original is not traceable as evident from the aforesaid facts.
Thereafter, DE was closed, vide order dated 28.05.2022 and matter was listed for final arguments.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 27 of 70PS IP Estate
48. Accordingly, final arguments were advanced at length by both the parties. I have heard the final arguments and have given my careful and thoughtful consideration to the plethora of evidence on record.
EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE, BRIEF REASON AND THE DECISION
49. The accused was brought before the court, facing trial for the alleged commission of offense (s) punishable under Section 420/468/201/422/120B of the Indian Penal Code, pertaining to cheating, forgery for the purpose of cheating, using as genuine forged document, criminal conspiracy.
50. Within the realm of legal principles, it is firmly established, that the prosecution bears the weighty responsibility of proving the case against the accused beyond any lingering doubt that may exist. To fulfill this onerous duty, the prosecution must firmly stand upon its own foundations, relying solely on the strength of its evidence and argumentation, unaided by extraneous factors.
51. Before delving into the merits of the present case, this court deems it imperative to discuss in a summarized manner the legal provisions and the essential ingredients entailed under them, that were required by the prosecution to establish beyond reasonable doubts in the light of facts and circumstances of the present case in order to bring home the guilt of the accused.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 28 of 70PS IP Estate
52. To begin with, the first charge against the accused persons is framed under section 420 IPC i.e cheating and dishonesty inducing delivery of property.
53. The ingredients of the offence of cheating are spelt out in section 415 of IPC. Section 415 IPC is extracted below:-
415-cheating:- "who ever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which Act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to cheat".
Explanation - A dishonest concealment of facts is a deception within the meaning of this section.
54. The ingredients of the offence u/s 415 of IPC emerge from a textual reading. Firstly, to constitute cheating, a person must deceive another. Secondly, by doing so, the former must induce the person so deceived to
(i) To deliver any property to any person.
(ii) To consent that any person shall retain any property or FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 29 of 70 PS IP Estate
(iii) Intentionally induce the person so deceived to do or omit to do any thing which he would not do or omit if he were not so deceived and such an act of omission must cause or being likely to cause damage or harm to that person in body, mind, reputation or property.
55. Section 420 IPC deals with cheating and dishonesty inducing delivery of property. It reads as follows :-
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 fine".
56. Essential ingredients for attracting an offence u/s 420 IPC are enlisted as under :
(i) There must be deception i.e that the accused must have deceived someone ;
(ii) That by the said deception, the accused must have induced a person:
(a) To deliver any property ; or FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 30 of 70 PS IP Estate
(b) To make, alter or destroy the whole or the part or the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable property;
(iii) The accused did so dishonestly.
57. In the light of the above ingredients, it is imperative to understand the emote of the term deception, inducement, dishonestly and the same are discussed as under:-
As per the Cambridge dictionary, the term induce means "to persuade someone to do something or to cause something to happen".
As per Cambridge dictionary, the terms deception means "the act of hiding the truth especially to get advantage".
The term dishonestly is very well defined u/s 24 of the IPC as, "who ever does anything with the intention of causing wrongful gain to one person or wrongful loss to other person, is said to do that thing dishonestly".
58. Further, the term wrongful loss and wrongful gain are also defined u/s 23 of the IPC as under :-
Wrongful gain:-FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 31 of 70
PS IP Estate "Wrongful gain is the gain by unlawful means of property to which the person gaining is not legally entitled".
Wrongful loss :-
"Wrongful loss is the loss by unlawful means of the property to which the person loosing is legally entitled".
59. In Hridaya Ranjan Prasad Verma Vs State of Bihar (2000) 4 SCC 168, two judge bench interpreted section 415 and 420 of IPC to hold that fraudulent or dishonest intention is a precondition to constitute the offence of cheating. The relevant extract from the judgment reads thus :-
"14. On reading of the section it is manifest that in the definition there are set- forth two separate classes of Acts which the person deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver property to any person. The second class of Acts set-forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of Acts, the inducing must be intentional but not fraudulent or dishonest."FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 32 of 70
PS IP Estate
60. Another offence for which the accused persons have been charged is U/s 468 IPC i.e forgery for the purpose of cheating.
61. This section punishes forgery committed for the purpose of cheating. To bring a document within the definition of forged document, it has first to be shown to be a false document covered under section 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 forgery of a document is proved, it cannot be said that the said forged document is used as genuine one, meaning thereby to constitute an offence under section 471 IPC, first an offence under section 468 IPC has to be established (Kajal Dey Vs. State 2004 Crl.J. 3367).
62. This section per se does not require that the accused should actually commit the offence of cheating but what is material is the intention or the purpose of the offender in committing forgery (Shivaji Narayan (1970) 73 BOM LR 215).
63. Apart from the above two offences, accused persons have also been charged under section 471 IPC i.e using as genuine a forged document.
Now what section 471 IPC requires is the use as genuine of any document which is know or believed to be a forged document: it does not lay down that such use can only occur when the original itself is produced, for the section does not require the production of the original. The condition precedent FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 33 of 70 PS IP Estate for an offence under section 471 IPC is forgery. Further, the condition precedent for forgery is making a false document (or false electronic record or part thereof). For the purpose of attracting guilty under section 471 IPC, it is sufficient that the said document is used in order that it may ultimately appear inevident or is used dishonestly or fraudulently or nature of user is not material. Therefore, in order to bring a person within the realm of section 471 IPC, it is enough if he filed a forged document, which he knows or have reason to believe to be a forged document (Ram Avtar Missir Vs. Rajendra Singh (1961) 2 Crl. J. 139).
It is further relevant to note, that to bring home the guilt of accused under section 471 IPC, use of a forged document as genuine, interalia, 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 word dishonestly, which involves a pecuniary or economic gain or loss which the word fraudulently by construction excludes that element (Shivaji Narayan Shinde Vs. State of Maharashtra, 1971 Bom LR 215).
In addition to this, it is further not out of place to mention, that the words, knows or has reason to believe, as used under section 471 IPC must be established in a way to prove that accused knew or had very well reason to believe that the document / electronic record used is not genuine. Unless, this said awareness on the part of the accused is proved, he cannot be roped by section 471 IPC. (Soundara Pandian Vs. Viswanathan, 1968 Crl. J. 1181 (Mad.).
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 34 of 70PS IP Estate
64. In addition to the above, accused persons have also been charged under section 120B IPC i.e punishment of criminal conspiracy.
"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.
Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
"120A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 35 of 70
PS IP Estate Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
The essential ingredient of the offence of "criminal conspiracy" is the agreement to commit an offence. Mere proof of such an agreement is sufficient to establish criminal conspiracy; Sushil Suri v. Central Bureau of Investigation, AIR 2011 SC 1713: (2011) 5 SCC 708: JT 2011 (5) SC 480: (2011) 5 SCALE 412.
The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. Direct evidence to prove conspiracy is rarely available and, therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused; Pratapbhai Hamirbhai Solanke v. State of Gujarat, 2012 (12) JT 286:
2012 (10) SCALE 237: 2012 (8) SLT 392."FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 36 of 70
PS IP Estate
65. Now, in order to establish a criminal conspiracy, the prosecution has to prove following ingredients:-
1 There should be an agreement; and
2. Agreement should be for doing an illegal act or a legal act by illegal means.
66. The prosecution has to somewhere establish meeting of minds of the alleged accused persons qua the act committed, latter being illegal or a legal act being done by illegal means.
67. The above principles have been reiterated time and again in plethora of judgments of the Hon'ble High Court of Delhi as well as the Hon'ble Apex Court. (P.K. Narayana Vs. State of Kerala, 1995 (1) SCC 142).
68. Another offence for which a set of accused persons have been charge in capacity of consumer is u/s 422 IPC and the same reads as under:
Section 422 : Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any other person from being made available according to law for payment of his debts or the debts of such person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Thus, in order to prove the criminality under section 422 IPC, the following ingredients ought to have been proved:FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 37 of 70
PS IP Estate Firstly, dishonestly or fraudulently preventing any debt or demand;
Secondly, the debt or demand ought to have been due to the person himself preventing or to any other person.
Thirdly, such debt ought to have been due according to law.
The term dishonestly and fraudulently have already been defined and discussed in reference of Section 24 and 23 of IPC. The term debt per se is not defined in IPC but no doubt it means something recoverable by an action qua debt, except what is ascertained or can be ascertained.
Thus, in the case in hand in order to bring home offence u/s 422 IPC, the prosecution has to establish, that the accused persons in the present case incurred a debt or demand and that this debt or demand is available to the creditor, being DVB in this case according to law for being repaid. Further, the accused prevented the said debt or demands due to himself from being made available to the creditor and the accused persons did so by dishonest or fraudulent means.
69. Another offence qua which accused are charged is offence u/s 201 IPC and same be read as under:
"Whoever, knowing or having reasons to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 38 of 70 PS IP Estate with that intention gives any information respecting the offence which he knows or believes to be false, shall if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
70. The present section relates to disappearance of any evidence of commission of an offence however, for attracting 201 IPC, in the first place it has to be proved that an offence has been committed. Secondly, the accused must know or have reasons to believe that the offence has been committed. Thirdly, the accused must either cause any evidence of commission of that offence to disappear or give any reason for disrespecting the offence which he knows or believes to be false. Fourthly, the offence must have acted with the intention of screening the offender from legal punishment.
71. The intention to screen the offender must be the primary and sole object of the accused.
72. In the backdrop of the law reproduced as above, it becomes imperative to anatomize the testimony of the prosecution witnesses in the present case. Prosecution in total had examined 15 witnesses and court hereby begins to appreciate the testimony of these 15 witnesses one by one.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 39 of 70PS IP Estate
73. The edifice on which the case of the prosecution rests is the manner and mechanism in which Delhi Vidyut Board functions qua the generation of electricity bills and as per the primary case of the prosecution, there was complete non- adherence and flouting of the standard procedure that is to be adopted by the department per se in issuance of bills.
74. It is prima facie averred by the prosecution, that the entire process of billing information, data regarding consumption of electricity and the subsequent payments made if any is developed at various districts and pursuant to that was sent in a floppy by special messenger to the Circle Officer at Shakti Sadan. Thus, as per the prosecution story primarily the information from entire districts regarding the usage, the payment as well as the billing raised from various districts was sent to the Circle Officer via floppy through special messenger. The floppy used to be accompanied by an internal record i.e. IR and the same contained information about all the files that were contained in the floppy and its total bytes.
75. Thus, at the very outset it was imperative upon the prosecution to establish and prove in the first place that the above said mechanism was a written or a codified mechanism that ought to have been adopted by the DVB as a matter of practice. Thus, the prosecution had to either place on record the SOPs or certain minutes of meetings or through some memorandum passed within a DVB or some other means to prove that this was the ideal mechanism that had to be adopted.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 40 of 70PS IP Estate
76. Not only this the prosecution also had to prove the manner in which the various positions at which the data regarding the consumption of the electricity, payment of bills and the billing information was maintained at various districts and who all and in what position were manning these offices / desks at the relevant point of time when the alleged offence took place. Further, the prosecution also had to prove who was the special messenger and what was his designation and how was he appointed or deputed for the purpose of carrying the information from various districts to the Circle Officer of Shakti Sadan. Not only this, the prosecution also had to categorically adduce the evidence on the point of accompanying internal record of the floppies that was sent to the Circle Officer. The prosecution also had to prove the manner in which the information was loaded in the IR or the floppies and who was the person / official incharge of loading the requisite information in the floppy as well as in the internal record.
77. It is further the case of the prosecution, that at the Circle Office the data used to be copied from floppy to the personal computer and thereafter, the same had to be verified by tallying the bytes as reflected in the personal computer and those in the IR. Here also the Court deems it fit to pause and state that this aspect also had to be proved by the prosecution by adducing adequate evidence.
78. It is further the case of the prosecution, that the entire information was received at Circle Office and from there it was channelised. Thus, it was imperative on the part of prosecution to FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 41 of 70 PS IP Estate prove as to who used to copy the data from the floppy to the PC and who was the person responsible for verifying the data by tallying the bytes of the PC and the IR.
79. Moving ahead, it is further the case of the prosecution, that the data was transferred to the main computer and its details were recorded in the operation register. Pursuant to that, the data thereafter was further processed by way of different programmes for the purpose of preparation of bills, ledgers, reports etc. Thus, at this juncture also prosecution had to adduce sufficient evidence for proving the mode and the manner in which the data was transferred and what were the different programmes that were adopted by the DVB for the purpose of preparation of bills, ledgers, reports. Further, who was the person / official responsible for processing all these different datas via different programmes and at the relevant point of time and who all were the officials managing all these positions. It is further the case of the prosecution, that before the generation of final bill, they were sent to print user and there the editable files were printed from the print user after checking at Circle Office and from there they were sent to district for further verification. It was only after the respective district confirmed the data / edits, they were sent back to the Circle. If there were any correction to be made they were made in print files and it was only after these correction that the final bills, ledgers and reports were printed.
80. Therefore, deducing from the above it can be safely boiled down, that the prosecution was required not only to prove the entire process that was adopted by the DVB for generation of FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 42 of 70 PS IP Estate bills but also had to prove the various steps that were adopted and the entire chain linking the initial stage i.e. the consumption via user to the ultimate generation of bills by the DVB. Further, the prosecution also had to prove the fact regarding the maintenance of data base if any, the backup that was maintained if any and what was the procedure and rules that were laid down by the DVB for doing all these steps.
81. Further, in the present case the prosecution had imputed liability upon three different sets of persons, one being the consumer, second being the officials of DVB, third being the accused persons who conspired with the first two sets to commit the alleged offence.
82. In the first place, as far as the case of the consumers is concerned, it is alleged that the said consumers got their bills reduced without making payments and therefore in the light of the charges, the prosecution was duty bound to prove the modus and the mechanism that was adopted by the consumers to get their bills reduced without making payments. Also the prosecution had to prove, that in not what way and through what channel the consumers got the actual outstanding against their consumption numbers nullified to zero or to negligible amount and how the same resulted in wrongful gain to them and wrongful loss to DVB.
83. The second set of the accused persons in the present case are the employees of Delhi Vidyut Board and the prosecution had to prove as to how these various officials and in what capacity at FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 43 of 70 PS IP Estate the relevant point of time manipulated the datas and fudged the figures in the computer system as well as the IR records, thereby resulting in alleged offence in question.
84. To appreciate the bringing home of the guilt of the accused persons by the prosecution, it becomes necessary to analyse the testimony of the prosecution witnesses as under:-
85. PW1 Rajesh Kumar, Chief Vigilance Officer, MCD, is the principal complainant in the present case as he made a complaint with regard to the fake receipt of posting of payment on account of electricity consumption to DCP i.e. Ex. PW1/A alongwith list of consumers being Ex. PW1/B. Thus, the entire case of the prosecution swung into action pursuant to the complaint being made by PW1 and therefore he is the most tectonic witness of the prosecution.
86. This witness was subjected to the cross-examination by the Ld. Counsel for the accused persons and in his cross- examination he categorically deposed, that he does not have any personal knowledge of the consumers and no personal enquiry was made by him and that he had filed the present complaint on the basis of the documents that were supplied to him. Not only this, he further went on to say, that the documents and the registers that were supplied to him and on the basis of which he made present complaint were not checked by him personally. The relevant excerpts of his cross-examination to this effect are as under:-
"I do not have any personal knowledge of the consumers and no FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 44 of 70 PS IP Estate personal enquiry was made by me. I filed the present complaint on the basis of documents supplied to me. Documents and the registers were not personally checked by me."
87. Thus, from the above excerpts of PW1, it can be primarily deduced, that the complaint though was made by PW1 but it was not made by him after checking the requisite documents and further he had no knowledge of the consumers in the present complaint i.e. Ex. PW1/A. Interestingly, even pursuant to seeing the document, Ex. PW1/B i.e. the list of consumers, PW1 could not decipher between the original data and the regular data. Thus, from the entire testimony of PW1, the entire edifice of the case of the prosecution stands shaken as he being the principal complainant could neither depose on the factum of the complaint, the details of the consumers nor on the additional and regular data.
88. PW2 ASI Kali Ram was a formal witness who had recorded the present FIR i.e. Ex. PW2/A.
89. PW3 Ratan Lal, Manager IT (Retd), from DVB was a principal link-pin between the department i.e. DVB as well as the investigation agency as he was appointed being a Nodal Officer and was required to collect the documents from several branches and the said documents were to be handed after collecting the same. However, this witness did not remember the description or the nature of majority of documents that were given by him to the IO.
90. Further, he was cross-examined by Ld. APP for the State as he was withholding the evidence. Pursuant to being cross-
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 45 of 70PS IP Estate examined by Ld. APP for the State, this witness was also cross- examined by the Ld. Defence Counsel for accused persons, whereby in his cross-examination he categorically admitted, that he had no personal knowledge about the contents of the documents that were supplied by him to the IO and he further stated, that he might have forwarded the letter in which it was written that the system at that point of time was not full proof and that the same could be operated by any one via any computer system. This witness in his cross-examination categorically denied the contents of all the documents that were supplied by him to the IO.
91. Thus, from the cross-examination of PW3 it can be deduced, that he did not come to the rescue of the prosecution as in the first place neither did he remember the nature of documents that he had given to the IO during investigation from the department nor did he remember the contents of these documents. Further, he also hinted towards the mechanism at DVB not being full proof, meaning thereby that the entry of the data and the retrieving of the same could be done by multiple users as various persons at DVB had access to the computer systems. The relevant excerpts of his cross-examination to this effect are as under:-
"It is correct that I have no personal knowledge about the contents of the documents supplied by him to the IO. It might be possible that I may have forwarded the letter in which it was written that the system is not full proved and the same can be operated by any one from any computer system."
92. PW4 Arshad Ali and PW5 Arvind Bedi were two FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 46 of 70 PS IP Estate witnesses that were not subjected to cross-examination and were eventually deleted from the list of witnesses and therefore their examination-in-chief can not be read in the present case. At this stage, Court deems it fit to place reliance on the following case laws:-
Liyakat Husain Vs. State Criminal Appeal No. 128 OF 2003:-
"22 Cross- examination of a witness is as much a part of the evidence as the examination-in-chief and a criminal Court cannot simply base its decision only on the basis of what prosecution witnesses depose in their examination-in-chief totally ignoring the cross- examination which is a valuable weapon in the armoury of an accused to shatter the credibility of a prosecution witness. It is the duty of a judge trying a criminal case to read the examination-chief as well as cross- examination of a prosecution witness and to examine how the witness had fared in cross- examination and then to arrive at some conclusion about the trustworthiness of the testimony of the witness. If only examination-in-chief of the prosecution witnesses who support the prosecution case is to be considered and not their cross- examination then conviction would follow almost in every case even if an accused has been able to elicit from the witnesses certain answers in cross- examination which demolish the prosecution case and convicting an accused in that manner would be totally unfair".
Smt.Kaushalya @ Tilla vs The State Criminal appeal No.26/1997:-
"21. Appreciation of evidence in a criminal trial is a serious FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 47 of 70 PS IP Estate exercise concerning the life and liberty of the accused. A slight error in appreciation of evidence on the part of the Court can have disastrous consequences for the accused. The Evidence Act does not provide for a tailor made formula to conclude which statement of a witness should be believed or should not be believed. The answer to the question depends upon so many circumstances and it is difficult to lay down a precise formula to assess the credibility of the witness. These matters have been left to the sound discretion of the Court. The testimony of the witness is to be assessed in its entirety, in the light of the surrounding circumstances and other evidence, to arrive at a conclusion whether said testimony gives an assurance of truthfulness and credibility".
Ripen Kumar vs Department Of Customs CRILJ1288, 2000(72)ECC722:-
"9. The words "all statements" include the examination-in- chief as well as the cross examination and subject to the permission re-examination also. It is only when the witness is permitted to be cross-examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross-examined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be cross-examined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part cross- examination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 48 of 70 PS IP Estate the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination-in-chief and cross- examination. That statement alone will form evidence. In the present case petitioner had been deprived to cross-examine PW-1 thereby dislodge his testimony. Hence incomplete statement of PW-1 in the absence of cross-examination could not be treated as evidence nor the same could be relied upon. Therefore the observation of learned ASJ that incomplete statement could have been the basis of deciding the question of charge is contrary to law. Part statement of PW-1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under Section 108 of the Customs Act stood proved".
G.Balaji vs Saravanasamy C.R.P.(PD)No.2182 of 2019 & C.M.P.No.2182 of 2019 In the judgment of D.F.Philips, Hon'ble Mr.Justice K.K.Sasidharan as he then was observed as follows:
"26. In ordinary circumstances, evidence not tested by cross examination has no probative value. There should be an opportunity to the opposite party to cross examine the witness. Things would be different in case the opportunity to cross examine was not availed of by the opposite party. Evidence of a witness given in chief without subjecting such evidence for cross examination on account of death of the witness is also permissible. However, its probative value would be very little".
Therefore, drawing strength from the above settled preposition of law, testimonies of PW-4 and PW-5 cannot be read FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 49 of 70 PS IP Estate into.
93. Moving ahead prosecution had examined Yogesh Kumar Sharma as PW6. At the time of alleged incident he was posted as Manager Admin at Shakti Sadan, ITO, New Delhi. On the relevant date, he was asked by the director EDP to not avert the details regarding the payment against K number mentioned in his report, Ex. PW6/A. As per the computer data files, no payments of K numbers mentioned in his report, Ex. PW6/A were received.
94. This witness was subjected to litmus test of cross- examination whereby he admitted, that he had no personal knowledge about the K numbers mentioned in his report, Ex. PW6/A. It is further pertinent to mention, that PW6 in his cross- examination categorically admitted, that he had not verified the non-payment of amount by K numbers mentioned in his report, Ex. PW6/A personally and the said computer from which the relevant data resulting in the formation of report, Ex. PW6/A could be used by any official in the office. Thus, from the bare perusal of cross-examination of PW6, it can be deduced, that the report i.e. Ex. PW6/A merely mentioned the K numbers but did not specify the name of the consumers to whom these K numbers were alleged. It was the duty of the prosecution to establish in the first place as to whom did these K numbers belonged to but the prosecution miserably failed to do so. Further, the report Ex. PW6/A, though was made by PW6 but it was merely a computer generated report and the access to the said computer was not restricted to any particular individual but as per the narrative of PW6 itself, the said computer could be accessed by any official in the office. Meaning thereby, that the authenticity with regard FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 50 of 70 PS IP Estate to the filling of data in the said computer and generation of report from the said computer could be done by anyone. Therefore, the authenticity of the information punched in the computer and generated there from stood compromised.
95. It is further admitted by PW6 in his cross-examination, that there were duty shift hours in the office and he did not remember clearly as to whose duty hours it were at the relevant point of time. Therefore, the possibility of the data being fetched and altered by any individual cannot be eschewed. The prosecution ought to have clearly established the person by whom the requisite information was fed in the computer and ultimate information being generated but so is not the case in hand. The relevant excerpts of his cross-examination to this effect are as under:-
"It is correct that other person person in different shift can use the computer if he is having authorization to use the same and access to file. I have personally not verified the data before handing over to Nodal Officer as I was not told to verify the same from the stubs. I was simply told to give it from computer data."
96. Thus, PW6 is also not a reliable witness of the prosecution as neither he had personal knowledge of the data nor had he verify the same. Moreover, the said computer from which the report was generated was not to his exclusive access and therefore the possibility of data being manipulated cannot be wedded out.
FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 51 of 70PS IP Estate
97. Another witness examined by the prosecution is PW7 Shiv Kumar Sharma. He deposed in his examination-in-chief, that Gyan Prakash, the Manager EDP had asked MS Tripathi, the then senior programmer to provide the details of a particular K number but he did not disclose the said K number in his examination-in-chief and simply stated that it was the same number regarding which some manipulations were conducted earlier as well. Thus, this witness also did not deposed anything which could lend credence to the version of the prosecution.
98. Moving ahead prosecution examined Virender Pathak as PW8. At the relevant point of time, PW8 was working as console operator engaged in processing of civil line cycle 9. This witness was subjected to litmus test of cross-examination and in his cross-examination he admitted, that he had not furnished any data pertaining to the date, year and month in his statement, whereby he had specified the above details as to when the accused had requested him to re-process the bill. At this stage, Court deems it fit to state, that PW8 in his examination before the Court had blown hot and cold in the same breath as in his examination-in-chief he had stated, that accused MS Tripathi had asked him to re-process the bill of CL Cycle Line for the month of May 1999 by stating that Gyan Prakash had directed him to do so but at the same time in his cross-examination he had averred, that the re-processing is a normal procedure which is carried out during day to day activities in the office and had further deposed, that he had done the same earlier also. The relevant excerpts of his cross-examination to this effect are as under:-
"It is correct that no such date, year and month is mentioned in FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 52 of 70 PS IP Estate my statement on which accused had requested me to re-process the bill. It is correct that re-processing is a normal procedure which is carried out during day to day activities in the office. I have done earlier also. I have not inquired from Sh. Gyan Prakash about any such instructions given by him."
99. Thus, from the entire testimony of PW8, it can be deduced safely in the considered opinion of this Court, that there is nothing that surfaced in the testimony of PW8 to establish that the act of re-processing the bill was against the departmental norms of DVB as the witness himself had stated in his testimony before the Court that it was a usual practice to re-process the bill and so being the case it was incumbent upon the prosecution to have explicitly proved and established, that any kind of re- processing of the bill was illegal and beyond the mandate of the rules, guidelines and by-laws of DVB. However, no such evidence had been put forth by the prosecution in this regard and therefore this aspect per se stands unproved.
100. Thereafter, prosecution examined PW9 Jai Bhagwan Verma. He simply handed over the feeding register in respect of code no. 6, Cycle 8 of May1999 containing details of cycle no. 2, 4, 6 and 8 and the said register was seized vide seizure memo, Ex. PW9/A. Upon being cross-examined this witness deposed, that he had no personal knowledge of the case and further admitted, that the said register was maintained at the district level.
101. It is paramount to note, that qua the feeding register as well the prosecution ought to have adduce evidence as to what all FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 53 of 70 PS IP Estate entries are being made in the feeding register and who is the person responsible for making those entries. Further, the prosecution had to be proved explicitly and beyond reasonable doubt as to how the said register holds relevancy in the light of facts and circumstances of the present case. No evidence had surfaced with regard to any kind of manipulation in feeding register or any kind of fake entries being made or any kind of entries being deleted from such register. No evidence had been advanced by the prosecution to throw light upon the manner and mechanism in which the said register or its entries and the maintenance of the same proves the case of the prosecution.
102. Another witness examined by the prosecution is PW10 Chandi Prasad Maithani. He was the person who had handed over the stationary stock register of the office containing 122 pages i.e. Ex. PW10/A to the IO vide seizure memo, Ex. PW10/B. He had also put his initials on each page of the register and as per the 55th page of the register, the IR book number 18001 to 18100 was issued to CK Dureja. PW10 had also issued the certificate on the first page of the said register i.e. Ex. PW10/A.
103. It is material to note, that though PW10 stated in his examination-in-chief, that this particular IR book was drawn by him from the stationary store alongwith other articles but he gave the said IR book to Ram Babu Sharma. At this stage, Court deems it fit to take a pause and deliberate into this aspect of handing over of IR book by PW10 to one Ram Babu Sharma as there is no entry to this effect. Further, it is categorically admitted FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 54 of 70 PS IP Estate by PW10, that he had not taken any signatures from Ram Babu Sharma to this effect. The relevant excerpts of this evidence to this effect are as under:-
"This IR book was drawn by me from the stationary store alongwith other articles and I gave this IR book to Ram Babu Sharma but for got to take his signatures."
104. This witness was subjected to extensive cross- examination and during the same he admitted that despite being subjected to investigation multiple times in the present case, his statements were never recorded by the police officials for the reasons best known to the prosecution.
105. Admittedly, the said witness deposed in his cross- examination, that in the event of issuance of any stationary items including stock register, receiving is given but no such receiving or entry in this case stands proved by the prosecution. In fact, the witness did not remember the specific date and month when the said IR book was issued to him and primarily the person to whom the book is issued, is responsible for the safe keeping of the same. The witness further stated, in his cross-examination that he did not remember the specific date and month when he realized that the said IR book is missing but categorically stated that he did not issued the same to Ram Babu Sharma. However, this statement of his regarding non-issuance of IR book to Ram Babu Sharma was confronted with his earlier statement recorded U/s 161 Cr.PC, whereby it was recorded to the contrary. He further went on to admit, that he had not taken any receiving from Ram Babu Sharma in this case. Further, he did not even search from the table of Ram Babu Sharma who was assistant FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 55 of 70 PS IP Estate accountant in the MSR Section.
106. Now, from the entire testimony of PW10 it can be deduced, that he is not a reliable witness as his testimony is not coherent and is exhibiting contrary facts as on one hand he stated that whenever any IR book is handed over a compulsory receiving is taken to this effect but for reasons unexplained he did not take any receiving from Ram Babu Sharma. Therefore, the aspect of handing over of the alleged IR record to Ram Babu Sharma per se remains unexplained as it was against the usual practice of handing over the IR book to anyone in the department. Another stream of deposition harped upon by PW10 is, that sometimes as per the directions of XEM, they do not take receiving but issue it on the oral direction of the XEM. However, the same is not the case in hand as no evidence has been led to prove that the IR book was handed over to Ram Babu Sharma without taking any receiving as per the directions of XEM and further more had that been the case, the XEM ought to have been examined to prove the same but the needful has not been done in the case in hand. Therefore, the present witness of the prosecution is not a reliable witness as his testimony is full of inter se contradiction.
107. Moving ahead prosecution examined Narottam Singh as PW11. He deposed, that as per his report bearing no. AFO (D) SKN/3/633 dated 27.12.2000, Ex. PW11/A, he had stated, that in the month January 2000, no additional data was sent from district Shakti Nagar. He further denied his signatures on IR bearing no. 18059, Ex. PW11/B. This witness was cross-examined, whereby while explaining the procedure for entering of data he deposed, FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 56 of 70 PS IP Estate that the data alongwith IR used to be directly sent to Shakti Sadan where the office of director EDP was situated. He further admitted, that the data sent from his office to Shakti Sadan was entered into the office of Shakti Sadan and the data was re-sent to his office for verification of data entered there in form of edit.
108. The final bill was prepared pursuant to the verification being done at his office. This witness did not remember if he had raised any objection or made any complaint regarding the wrong entries of IR, Ex. PW11/B with Shakti Sadan. He further did not remember if he had cleared the Ex. PW11/B. He further did not know if the bill was generated against the IR. Thus, clearly the witness has not denied to the non-clearing of the wrong entries as reflected in Ex. PW11/B at his end. The witness further did not remember the vital aspect regarding the raising of objection to the wrong entries made in Ex. PW11/B. Thus, in the absence of any clear and explicit knowledge of the said witness with regard to document Ex. PW11/B being generated at his end or through his office, the said witness does not come to the rescue of the prosecution.
109. Another witness examined by the prosecution is Hari Kishan as PW12. This witness was cross-examined by Ld. APP for the State as he was not disclosing complete facts as per the statement recorded U/s 161 Cr.PC. It is pellucid to note, that this witness out-rightly denied the suggestion that he was called by accused MS Tripathi in his cabin where accused Rajesh Malhotra was also present. In fact, this witness went ahead and deposed, that he was called by Gyan Prakash in his cabin where accused MS Tripathi was though present but he was asked to re-process FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 57 of 70 PS IP Estate the data by Gyan Prakash. He had copied the details from the old register and the details of re-processing in the new register. He further stated, that he had copied the details of processing of May 1999 on the next page prepared by KPO Smt. Sumitra. He further averred, that the next page was kept blank and thereafter entry of June 1999 was made by him.
110. This witness was cross-examined by Ld. Counsel for accused persons, whereby he categorically admitted, that he had done the re-processing on the asking of Gyan Prakash as Gyan Prakash was the manager there. He further admitted, that re- processing of data was a routine affair.
111. Thus, PW12 in his testimony has nowhere categorically pin pointed that the directions for re-processing of data was given to him by accused MS Tripathi being a senior programmer at that point of time. PW12 at different places in his deposition before the Court has named Gyan Prakash for giving the directions to him and at certain places has also deposed that the said directions were given to him by MS Tripathi. But in his cross-examination, he deposed, that the said directions were given by Gyan Prakash only. So with clarity PW12 has nowhere imputed the giving of directions to any particular individual. Moreover, the facet that the re-processing was against the by- laws of DVB had to be proved as PW12 has categorically deposed, that re-processing of data was a routine process and was being done on regular basis. However, the prosecution has not produced even a single document to put forth the rules and regulations, the procedure and by-laws, the mechanism and manner of punching the data followed by the DVB to explain this FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 58 of 70 PS IP Estate aspect of re-processing of data.
112. Another witness examined by the prosecution is PW13 i.e Sh. Harshvardhan, Retd. Assistant Director (Documents) FSL. He deposed in his examination in chief, that the documents pertaining to the present case were forwarded to him and thereafter, he had provided his opinion. This witness was subjected to coss examination, whereby he deposed that he cannot say if the documents received in sealed cover or in open condition. He further had no knowledge regarding the recipient of these documents.
113. Another witness examined by the prosecution is PW14 i.e the hand-writing expert Amidaksh, who had submitted his report i.e. Ex. PW14/A and Ex. PW14/DX1 qua the admitted and the questioned signatures that were sent for the examination to him. Upon being cross-examined this witness categorically admitted, that in his report Ex. PW14/DX1, no opinion was expressed and that was his first report and only subsequent to that, report Ex. PW14/A was prepared by him. It is interesting to note, that pursuant to no opinion being given vide his report Ex. PW14/DX1, PW14 did not seek any additional data / document for further comparison of questioned document. He further did not seek any additional specimen hand-writing or admitted hand- writing of accused Kailash. It is apropos to note, that in the event of non-seeking of any additional information either in form of questioned hand-writing or admitted hand-writing or any other supplementary or ancillary document, how PW14 came up with an opinion in form of Ex. PW14/A report over and above his additional report in form of Ex. PW14/DX1 and this aspect FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 59 of 70 PS IP Estate remains unexplained by the prosecution. Further more, upon the same document and data two reports were prepared by PW14, whereby the first report generated no opinion and the second report generated the opinion and this discrepancy in these two reports on the basis of the same data remains unexplained by the prosecution. Further, the subsequent report i.e. Ex. PW14/A is completely silent with regard to the first report i.e. Ex. PW14/DX1.
114. Bare perusal of the FSL report Ex. PW14/DX1 dated 29.04.2002 reveals, that PW14 had given a finding that "it has not been possible to express any opinion on the question writing and signatures marked Q1 in comparison with standard writing and signatures marked S1 to S54 and A1 and A2 of accused Kailash Kumar."
115. Now, after giving the said finding and opinion the report was duly submitted / forwarded by PW14 and accordingly the report was final in its nature. Now, it stands unexplained by the prosecution that in the absence of no additional material and upon no application from the investigating agency for seeking further opinion, under what circumstances and in what capacity and for what reasons did PW14 furnish a subsequent report after gap of 3-4 months of furnishing of the first report i.e. Ex. PW14/DX1 with a contrary opinion.
In these circumstances, the authenticity of the documents and the report furnished by PW14 becomes questionable.
116. Per se the expert opinion is not a conclusive piece of evidence and it only has a corroborative value but in the light of facts and circumstances of the present case, the said report loses FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 60 of 70 PS IP Estate its authenticity and reliability as the circumstances leading to filing of subsequent contrary report remains unexplained.
117. In the case of "Paramasivam Vs. State by Inspector of Police, Crl. Appeal no. 802 and 895 of 2007", placing reliance on the conclusion of the Supreme Court in S. Gopal Reddy Vs. State of AP, 1996 SCC (Crl.) 792 is pressed into service.
28..... The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering conclusive proof and therefore, safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal Vs. State of Punjab, while dealing with the evidence of handwriting expert, this court opined : (SCC PP 213- 214, para 7) ".....We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which hold that it is unsafe to based conviction solely on a expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this court in Ram Chandra Vs. State of UP; 1957 CrL. LJ 559, that it is unsafe to pre expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This court again pointed out in Ishwari Prasad Mishra Vs. Mohdn. ISA, that expert evidence of handwriting can never be conclusive because it is, FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 61 of 70 PS IP Estate after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, where it was pointed out by this court that experts evidence as to handwriting being opinion evidence can rarely, if ever take a place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated even by direct evidence or by circumstantial evidence. This court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin Vs. State of MP, AIR 1967 SC 1326; and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
118. Now coming to the case in hand, in the present case specimen hand-writing and signatures of accused Kailash Kumar were obtained during investigation without any prior permission from the Court and in the event of law being settled on this point, the same cannot be read into evidence against the accused persons.
119. For this purpose Court place reliance upon the judgment of Rakesh Kumar Anr Vs. State (2004) (1) JCC 110 wherein the Hon'ble High Court of Delhi held that " in the case where the specimen hand-writing has been taken during the course of investigation by the IO without the permission of the Court, such signatures / specimen hand-writing / thumb impression cannot be used during trial and expert report also based on such signatures / specimen hand-writing / thumb FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 62 of 70 PS IP Estate impression could not be made use of during trial."
120. Apart from the above witnesses, the last witness examined by the prosecution is PW15 i.e. Rajan Bhagat, being the IO in the present case. However, perusal of the record shows, that that despite various opportunities being given to the prosecution to complete the examination of this witness, the prosecution failed to do so and finally on 16.03.2019 the Ld. Predecessor of this Court closed the opportunity of the prosecution to complete the examination-in-chief of this witness. Thereby, the present witness was not tendered for his cross- examination by the Ld. Defence Counsel in the present case. Thereby, rendering his testimony to be incomplete and in the event of incomplete deposition the same cannot be read into evidence and stands discarded.
121. Now, pursuant to the above observation and finding, this court deems it fit to recapitulate as under:-
Firstly, as far as the role of the consumers being the accused in the present case is concerned, the prosecution has miserably failed to assign any exact role to the alleged consumers / accused in the present case. There is no iota of evidence as to how and in what manner and under what circumstances these end consumers got into any kind of an agreement or consenors with the employees of DVB to give affect to the alleged crime. There is settled law being further fortified by various precedents that in the event of crime being committed by way of criminal conspiracy, there has to some direct or indirect evidence to show the meeting of mind or entering into of any kind of by the alleged FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 63 of 70 PS IP Estate accused persons.
Court deems it fit to place reliance upon the judgment of Ms. Arunwan Thamvaro Vs. State (Criminal MC No. 2511/2004), wherein it was held by the Hon'ble High Court of Delhi, placing reliance upon the judgment of Supreme Court in the case of Kehar Singh & Ors Vs. State (Delhi Administration), 1988 3 SCC 609 in which the Supreme Court said the conspiracy can be proved by circumstantial evidence as well as by direct evidence and that though the conspiracy is hatched in secrecy, the prosecution must prove some physical manifestation of agreement although it may not be necessary to prove actual meeting of two persons or the words by which the persons communicated. The Supreme Court further said, that the evidence regarding transmission of thought and sharing of unlawful design may be sufficient. If this principle is applied, it is clear that there is no circumstantial evidence or direct evidence showing meeting of minds between the end consumers of electricity and the officials of the DVB. There is no iota of evidence to prove that the end consumers / the accused persons have ever worked in the said department or have had any kind of link or tie-ups to anyone in the DVB, let alone the co-accused persons.
It is further not out of place to mention, that in the charge- sheet the consumers are being identified only vide using the K numbers but no document has been proved in evidence to establish as to what particular K number as per the charge-sheet belonged to what accused. There is also no evidence to substantiate that the alleged accused persons falling in the FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 64 of 70 PS IP Estate capacity of consumers were using or drawing electricity proved the K numbers as reflected in the charge-sheet. At the cost of brevity, it is being stated, that the detailed manner and the modus operandi in which the alleged crime as per the prosecution was executed by the alleged accused / consumers and the alleged accused / officials of DVB stands unexplained. There are primarily only allegations to the effect that the accused persons i.e. the end consumers of electricity paid to get their electricity bills payment entry forged but there is no direct or indirect evidence to this effect. It is further interesting to note, that DW1 Bharat Kumar in his defence evidence deposed, that in the year 2004 the initial connections installed at their address were got transferred from DVB to NDPL and new electronic meters were installed. Pursuant to that since 1994, they did not receive any demand notice from DVB or any disconnection notice regarding any outstanding dues which were to be payable by them to DVB. This is paramount to note, that it is highly likely that no demand or disconnection notice was ever given to the accused, if he had been defaulting on any payment for past five years as per their recovered of DVB.
Secondly, the prosecution has in the present matter only orally harped upon the mechanism and the manner adopted by DVB for generation of bills. There is no documentary evidence to this effect on record. The prosecution has miserably failed to place on record any kind of SOPs or departmental minutes or departmental rules and by-laws that are followed or adopted for the purpose of generating of bills. The factum that the entire FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 65 of 70 PS IP Estate billing information, the data regarding the consumption of electricity and the payments to be made, if any were developed at various districts stands un-corroborative. There is no evidence to solicit that the data from the various district was sent in the floppy by special messenger to Circle Officer at Shakti Sadan. Further, there is nothing on record to show as to who was the special messenger and he was appointed by whom. What were the qualifications and criteria for appointing a special messenger and who was the special messenger at the time when the alleged offence took place stands unproved.
It is further only orally averred by the prosecution that the floppies was accompanied by an IR which contained internal information about the files contained in the floppy and its total bytes but if at all the same was actually done and by what mechanism stands unproved.
It is further averred in the charge-sheet, that the data was used to be copied from floppy to the PC and was verified by tallying a bytes as reflected in the PC and those mentioned in the IR but again there is no iota of evidence to this effect. Nothing on record has been furnished by the prosecution to prove that punching of data in the floppy or on the computer was done by a particular person holding a particular position pursuant to the specific password or code that was generated to him. In fact, the prosecution witnesses have themselves admitted in their cross- examination, that there were no such passwords restricted to any particular individual and the computer could be accessed by anyone at at any point of time. In such circumstances imputing liability to a particular individual becomes impossible as multiple FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 66 of 70 PS IP Estate users having access to the computers were there. The fundamental aspect of password's were not enforced strictly as per the norms of the day but instead anybody could have an access to the print user and in such circumstances fastening of liability on single individual is not possible.
Thirdly, as per the charge-sheet and the subsequent charge, as per the statement of the then KPO Smt. Sumitra, new register was opened on the instructions of MS Tripathi and in the presence of accused Rajesh Malhotra. It is she, who had stated that on instructions of accused MS Tripathi, she copied down the status pertaining to month of May 1999 in a new register and then was asked to put the date of 30.06.1999 on it. She further stated during investigation, that she was told by accused MS Tripathi and Rajesh Malhotra, that since the status pertains to month of May, she should have put the date as 17.05.1995 and it was only thereafter that she over wrote the date as 17.05.1999. Now, this aspect of instructions being given to her by accused MS Tripathi and Rajesh Malhotra and pursuant to that the over writing was done by her could have been proved only by her. However, PW Sumitra was never examined as a prosecution witness and it was she on whose statement the alleged register with back date was stated to be got prepared at the instructions of MS Tripathi and Rajesh Malhotra.
Thus, non examination of the then KPO Smt. Sumitra, has also proved fatal to the case of prosecution.
Fourthly, there is nothing on record to substantiate that how FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 67 of 70 PS IP Estate and in what manner the accused persons had benefited as a result of the commission of the alleged offences. There is no evidence to show or establish any kind of money transfer or money exchange or for that matter any other benefit drawn by the accused persons while committing the alleged offences.
Fifthly, the prosecution has further failed to bring on record, that the printing of the alleged bills was done under the supervision of the accused persons or was done by them or at their behest or under their instructions, as the alleged forgery has been shown to be done in the printing of bills while the main data remain unchanged.
Sixthly, the destruction of evidence of any kind could not be proved as the prosecution has further not been able to prove that how and in what manner the destruction of evidence took place. As the act of preparing a new register and noting down the details of previous months entries and writing the subsequent entries no where can be deduced or presumed as an act of destruction of evidence. The prosecution ought to have been very specific as to what evidence was actually destructed and the mode and the manner in which the alleged destruction took place.
Seventhly, the IO of the case has not been examined to prove the factum of investigation that was conducted as per law and procedure. The IO being a very important witness ought to have been examined and in the case in hand the said aspect is lacking, resulting in a further dent in the story of the prosecution.FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 68 of 70
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122. In the judgment of Ghurey Lal Vs. State of UP, the Hon'ble Apex Court held as follows:-
The trial Court categorically came to the finding, that when the sub-stratum of evidence of prosecution witnesses was fake then the prosecution case has to be discarded when the trial Court finds so many serious infirmities in the prosecution version then the trial Court was virtually left with no choice but to give benefit of doubt to the accused persons accordingly to the settled principle of criminal jurisprudence.
123. At this stage, court further deems it fit to state, that it is a settled principle of criminal jurisprudence, that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact, that in all possibility, the offence must have been committed by the accused. In the present case, it is pellucid, that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
CONCLUSION
124. Therefore, in the teeth of the above analyses, it can be safely culled out that case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
125. Hence, in view of the aforesaid comprehensive discussion, the prosecution has miserably failed to prove the charges levelled against the accused persons and therefore, the FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 69 of 70 PS IP Estate accused persons namely KAILASH KUMAR, RAJESH MALHOTRA, VIJAY KHAIR, M.S. TRIPATHI and VIDUR KUMAR @ UDAY KUMAR are hereby acquitted of the offences.
126. Bail bonds in terms of Section 437A Cr.PC have already been obtained from the above said accused persons and in compliance of the judgment of the Hon'ble High Court in "State Vs Virender Yadav & Anr. 2014 I A.D (Del.) 389" the same shall remain in force for a period of six months from the date of judgment.
127. File be consigned to Record Room after due compliance and be revived as and when accused, namely, ARUN SARAF is apprehended and produced before the Court to face trial.
Digitally signedRICHA by RICHA Announced in the open Court today SHARMA Date: 2024.08.09 SHARMA 16:05:18 +0530 i.e.09.08.2024 (RICHA SHARMA) ACJM-01(CENTRAL) TIS HAZARI COURTS/ DELHI FIR No. 403/2000 State Vs. Rajesh Malhotra & Ors. Page 70 of 70 PS IP Estate