Delhi District Court
In Re: State vs Pinakin Dinesh Etc. on 24 September, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURT: NEW DELHI
In Re: STATE VERSUS PINAKIN DINESH ETC.
F.I.R. No: 677/99
U/s 420/468/511 IPC
P.S. Defence Colony
Date of Institution of Case : 24.05.2001
Judgment Reserved for : 16.09.2011
Date of Judgment : 21.09.2011
JUDGMENT:
(a) The serial no. of the case : 209/2/03
(b) The date of commission of offence : 31.08.1998
(c) The name of complainant : Sh. Mahavir Singh
Saroha, Sr. Manager,
B/2/2362, Allahabad
Bank, Anand Lok, Vasant
Kunj, New Delhi.
(d) The name, parentage, of accused : 1) Pinakin Dinesh S/o
Sh. Din Bandhu Dinesh,
r/o B30, Gulmohar Park,
New Delhi.
2) Prabhu Dayal S/o Sh.
Durga Ram, R/o
FIR No. 677/99 1/61
H90, J.J. Colony,
Wazirpur, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 420/468/511/411
IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Accused Pinakin Dinesh
Convicted u/s 420 read
with Section 511 IPC as
well as u/s 411 IPC.
Accused Prabhu Dayal
convicted u/s 468 IPC
(h) The date of such order : 21.09.2011
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 31.08.1999 in Allahabad Bank at Udai Park Market, New Delhi within the jurisdiction of police station Defence Colony, accused Pinakin Dinesh dishonestly attempted to cheat the bank by presenting a stolen and forged demand draft bearing no. 389638 for Rs. 2 Crores 45 lacs for encashment. Further, he was found in possession of demand draft/pay order bearing no. 380637 to 389650 which was recovered from his office 24D/1, Gautam Nagar, New Delhi and which belonged to Allahabad Bank which he retained knowingly or having reason to believe that the same was FIR No. 677/99 2/61 stolen property. Furthermore, accused Prabhu Dayal being the accountant of accused Pinakin Dinesh forged a demand draft bearing no. 389638 for Rs. 2 crores 45 lacs and also forged the signatures of authorized signatory of the Allahabad Bank on the draft in order to cheat the bank and thus thereby the accused persons committed offence punishable u/s 420/511/411/468 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused persons were supplied the documents. Thereafter vide orders dated 05.11.2003, charge u/s 420 read with Section 511 IPC & 411 IPC was framed against accused Pinakin Dinesh. Charge u/s 468 IPC was framed against accused Prabhu Dayal. Both the accused persons pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused persons, prosecution examined eleven witnesses. After the PE was closed the statement of both accused persons u/s 313 Cr.P.C was recorded wherein they claimed themselves to be innocent and stated that they have been falsely implicated in the case. However, they did not offer to examine any witness in their defense. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW 1 Sh. M.S. Saroha deposed that in the year 1999 he was posted as FIR No. 677/99 3/61 Sr. Manager at Anand Lok Branch, Udai Park, New Delhi. On 28.08.1999 at about 5.00 pm an official of the bank informed him that one draft book was missing from the counter of the bank. They searched for the same but could not find, so the matter was reported to the higher authorities and thereafter to the police. He further deposed that on 31.08.1999, there was holiday in the bank, in the evening he received a telephonic call at his residence from S.P. Raj Chaudhary, Sr. Manager, Vigilance who asked him to reach in the police post, Gulmohar park, police station, Defence Colony upon which, he along with his senior officers and staff members reached the police post. He further deposed that police called one person in the police station whose name he does not remember perhaps Dinesh. He further deposed that police did not interrogate Dinesh in his presence. He further deposed that police had taken the said person somewhere else but he was not accompanying the police. He further deposed that police brought 6/7 loose drafts at the police post. He further deposed that he was asked by the police to make a formal complaint i.e. Ex. PW1/A. He further deposed that he cannot identify him (Dinesh) even if shown to him due to lapse of long period of 5 years. He further deposed that he does not know anything more about this case. He further deposed that police obtained his signature on certain memos. He further deposed that he did not read those memos before signing as it was midnight.
During his cross examination by the Ld. APP for the State he denied the FIR No. 677/99 4/61 suggestion that drafts seized vide seizure memo Ex.PW1/B were recovered from accused Dinesh by the police in his presence. He further denied the suggestion that disclosure statement of accused Dinesh was recorded in his presence. He further denied the suggestion that his statement u/s 161 Cr.P.C. was recorded by the police. He further denied the suggestion that he was not deposing falsely as he had been won over by the accused. He admitted that document Ex. PW1/C & D bear his signatures at point A. He voluntarily stated that he signed these documents in good faith without reading the contents. He stated that he cannot identify the boy who was apprehended by the police if shown to him as he had seen the accused for a very short time.
During his cross examination by the Ld. Defence Counsel he stated that bank was not put to any financial loss or otherwise in this case.
5. PW 2 Sh. S.P. Rai Chaudhary deposed that during the year 1999, in the month of August, he was posted as Senior Manager in Zonal Office, Allahabad Bank, Anand Lok Branch. He deposed that approximately on 25.08.1999, he received information from branch Manager Mr. Saroha, Anand Lok Branch, regarding theft of one draft book. He further deposed that on the same day, in the evening, he received telephonic call from Casio Company regarding loss of draft of 2.5 Crores purported to have been issued by Allahabad Bank, Anand Lok FIR No. 677/99 5/61 Branch in favour of Casio Company. He further deposed that since the serial number of draft book matched with the lost draft, he made further enquiry as to who had handed over the draft to them (Casio Company). He further deposed that they (Casio Company) told him that draft was delivered to them by Pinakin Dinesh who was the authorized dealer of the Casio Company. He further deposed that he became suspicious and approached the police of PP Gulmohar Park, PS Defence Colony. He further deposed that one Constable went to the house of Pinakin Dinesh who recovered the lost draft from the house of Pinakin Dinesh and brought accused Pinakin Dinesh in PP Gulmohar Park together with the lost draft book. He further deposed that Mr. Pinakin Dinesh was the Proprietor of the company i.e. Macrodot who was maintaining a current account with Allahabad bank, Anand Lok Branch because of which he used to visit the Branch frequently.
During his cross examination he stated that his statement was also recorded by the police. He stated that the date was 31.08.1999 when the FIR was registered. He stated that he used to sit in Parliament Street Office of the bank. He stated that before this incident he had never dealt with account of M/s Casio and of M/s Macrodot of Pinakin Dinesh before lodging the complaint. He further stated that he had never met or seen Pinakin Dinesh before lodging of the FIR. He further stated that he had not lodged any report with the police on FIR No. 677/99 6/61 25.08.1999 when the Branch Manager of Anand Lok Branch informed him about the theft of one draft book. He further stated that he had not received any call from M/s Casio Company regarding the loss of draft of Rs. 2.5 Crores on 25.08.1999 and it was in fact on 31.08.1999 that he received the information. He further stated that he disclosed this fact to the police in his statement that on 31.08.1999 he received a call from Casio Company regarding loss of draft of Rs. 2.5 crore issued by Allahabad Bank, Anand Lok in favour of Casio Company, but when he was confronted with the statement, same was not found recorded therein. He further stated that he had not stated to the police in his statement that serial no. of the draft tallied with the serial no. of the draft book stolen from Anand Lok Branch. He further stated that he made further inquiries and he was informed that the draft was delivered by Pinakin Dinesh, the authorised dealer of the Casio Company. He further stated that he does not remember the name of the officer who talked to him from Casio Company may be it was Dinesh. He further stated that he was not knowing any Mr. Dinesh on that day. He stated that he had not made any complaint in writing to the police. He further stated that he had not stated to the police in his statement that one Constable went to the house of Pinakin who recovered the lost draft and brought the accused Pinakin Dinesh in PP Gulmohar Park along with the lost draft book which was recovered from the house of Pinakin Dinesh. He voluntarily stated that it was done by the police at his instance and there was nothing to be reported. He stated that he had gone to FIR No. 677/99 7/61 the PP Gulmohar Park along with Mr. M.S. Saroha, Mr. Yadav, Mr. Arun Mehta and 23 more officers. He stated that he had not visited the police thereafter and he had also not visited them on 01.09.1999. He stated that he was not interrogated by the police on 01.09.1999 nor he made any statement. He voluntarily stated that however, since 31.08.1999, it was late night, so it could have been 01.09.1999 mid night. He stated that he had informed the police in his statement Ex.PW2/DA that Pinakin Dinesh, Proprietor of M/s Macrodot was maintaining a current account at their bank at Anand Lok Branch and in that connection he used to visit the branch frequently but when he was confronted with the statement, same was not found recorded therein. He voluntarily stated that he had stated this fact to the police verbally. He denied the suggestion that he was deposing falsely or that nothing had happened in his presence or making a false statement.
6. PW 3 Anil Kumar Yadav deposed that in the year 1999, in the month of August, he was posted as Manager (Operations), Allahabad Bank, Anand Lok Branch. He deposed that on the day of theft of the draft the routine officer had informed him in the evening about the missing of draft book containing 17 draft leaves. He further deposed that then he made the search in the branch but he could not find. Hence, they made the complaint to the police as well as in the Zonal Branch. He further deposed that on the next day, Sr. Manager informed FIR No. 677/99 8/61 him to come to the branch and the Vigilance Personnels investigated the matter and lodged the complaint with the police . He further deposed that he does not know anything about the case.
During his cross examination by the Ld. APP for the State he denied the suggestion that he had given any statement to the police. He denied the suggestion that on 28.08.1999, he was sitting on his seat and Mr. Pinakin Dinesh from M/s Macrodot Telecom, D245, Gautam Nagar came in the bank. He further denied the suggestion that on that day, Mr. Pinakin Dinesh was standing near his table as well as near the table of J.D. Tripathi. He further denied the suggestion that he stated to the police that on 30.08.1999 Pinakin Dinesh visited in the branch and got issued one draft of Rs.1,000/. He further denied the suggestion that he stated to the police in his statement that Mr. Pinakin Dinesh was well known to him and used to come in the branch. He further denied the suggestion that he had stated to the police that accused Pinakin Dinesh was running the account no. 301511 in the branch. He further denied the suggestion that he had been won over by accused Pinakin Dinesh and as such deposing falsely in order to save him. He further deposed that his statement is his true and correct statement and made by him to the IO of this case. He voluntarily stated that he had never seen Pinakin Dinesh and he does not know him personally and he cannot identify him.
FIR No. 677/99 9/61
7. PW 4 Harish Chand deposed that in the year 1999, he was posted as Clerk cum Cashier in Allahabad Bank, Anand Lok Branch but he does not know anything about this case.
During his cross examination by the Ld. APP for the State he stated that he had not given any statement to the IO of this case. He denied the suggestion that he had stated to the IO that he knew accused Pinakin Dinesh and he used to visit Branch. He further denied the suggestion that he had stated to the police that on 30.08.1999 accused Pinakin Dinesh had come in the branch and got issued one draft of Rs.1,000/. He further denied the suggestion that he had stated to the police that accused Pinakin Dinesh was having the account in Anand Lok Branch. He further denied the suggestion that he had been won over by the accused in order to save him. He further denied the suggestion that Statement Mark B is his true and correct statement and made to the police officials.
8. PW 5 Dinesh Kaushik deposed that he does not remember anything about this case and nothing happened in his presence.
During his cross examination by the Ld. APP for the State he stated that he had not given any statement to the IO of this case. He admitted that in the FIR No. 677/99 10/61 year 1999, he was working as Sr. Manager, Finance & Accounts in Casio India Co. Ltd. and had left the company in the year 2005. He denied the suggestion that on 30.08.1999, at about 9.00 pm, Mr. Yugi Tegani, Ex. M.D. had handed over him one demand draft of Rs.2,45,00,000/ and told him that the same was given by Mr. Pinakin Dinesh of M/s Macrodot Telecom. He further denied the suggestion that he had handed over the said draft to Mr. Raka Gahlot on 31.08.1999 to deposit the same in the Sakura Bank. He further denied the suggestion that Mr. Raka Gahlot had told him that the said draft of Rs. 2,45,00,000/ had been misplaced and he informed the Sr. Officer in this regard. He further denied the suggestion that he had written a letter to M/s Macrodot Telecom. He voluntarily stated that he does not remember whether he had written any letter to M/s Macrodot Telecom and had sent the copy of the same to Branch Manager, Allahabad Bank. He further denied the suggestion that he had gone to the house of Mr. Pinakin Dinesh and made the call to the Allahabad Bank, Main Branch, Parliament Street regarding missing of the draft no. 38938 dated 30.08.1999 and requested to stop the payment of the same. He further denied the suggestion that he had won over by the accused persons and deposing falsely to save them. He stated that he does not remember as to whether he had written any letter to the Allahabad bank regarding stopping the payment against the draft of Rs.2,45,00,000/. He further denied the suggestion that he had handed over the copy of the same to the IO of this case. He further FIR No. 677/99 11/61 denied the suggestion that statement Mark A is his true and correct statement or that he had made the same to the IO voluntarily.
9. PW 6 Arun Mehra deposed that in the year 1999, he was posted as Sr. Manager, Public Relation Officer at Zonal Office, Allahabad Bank. He further deposed that in the same year, there was a case of stolen draft which was presented in clearing but the same was not paid. He further deposed that bank did not suffer any loss in that case. He further deposed that he does not remember anything more about this case and nothing was happened in his presence. However, he was called by his colleague S.K. Rai Chaudhary, Sr. Manager (Vigilance) who asked him to visit some house in the locality but he does not remember the address of that house.
During his cross examination by the Ld. APP for the State, he stated that he does not remember as to whether he had gone at B30, G.M. Park, Delhi and also does not remember whether he had gone to the house of Mr. Dinesh. He further stated that he also does not know whether Mr. Dinesh met him at B30, G.M. Park or not. He denied the suggestion that he had demanded the photocopy of the draft of Rs. 2,45,00,000/ from Mr. Dinesh. He further denied the suggestion that he had identified Mr. Dinesh in the PP Gulmohar Park and told the IO that Dinesh had refused to give him the photocopy of the draft. He FIR No. 677/99 12/61 further denied the suggestion that he was deposing falsely. He further denied the suggestion that his whole statement Mark B is his true and correct statement.
10. PW 7 Raka Gahlot deposed that he does not remember the exact date of the incident, however, in the year 1999, he was working as Office Boy in Casio India Ltd. He further deposed that he does not remember about the missing of any draft since he had left the company about 10 years back. He further deposed that he does not know anything about this case.
During his cross examination by the Ld. APP for the State he stated that he had not given any statement to the IO of this case. He denied the suggestion that on 30.08.1999 one Mr. Pinakin Dinesh came in their company and he handed over one draft of Rs. 2 crore and 45 lacs. He further denied the suggestion that accused Pinakin Dinesh had told him to give job in his company. He further denied the suggestion that on 31.08.1999 he received four drafts consisting one draft of Rs.2 Crores and 45 lacs from Sr. Manager, Dinesh Kaushik to deposit the same in Shakura Bank, Connaught Place. He further denied the suggestion that Mr. Pinakin Dinesh met him in the office, when he was going to deposit the draft in the bank or that he along with Pinakin Dinesh sent to his office at Macrodot Gautam Nagar, or that he along with him went inside his office. He further denied the suggestion that he had kept all the drafts FIR No. 677/99 13/61 consisting draft of Rs.2 Crores 45 lacs in his scooter dicky along with some other papers and when after 10 minutes he came back near his scooter and had talked with Mr. Dinesh for about 10 minutes and at that time Mr. Dinesh left the spot to attend a telephonic call. He further denied the suggestion that when he went to Shakura Bank, he found that a draft of Rs. 2 Crore 45 lacs was not in the dicky of his scooter and on this he returned back to his office and informed Mr. Dinesh Kaushik about all this incident. He further denied the suggestion that he had doubts upon Mr. Dinesh Pinakin that he had stolen the draft from the dicky of his scooter. He further denied the suggestion that he had identified the said draft which was shown to him by the IO of this case. He denied the suggestion that his statement Mark C is his true and correct statement. He denied the suggestion that he had been won over by the accused persons and deposing falsely to save them. He further denied the suggestion that he can identify the draft if shown to him.
11. PW 8 HC Bhagirath Prasad deposed that on 31.08.1999 he was posted at PS Defence Colony PP Gulmohar Park. On that day he was present in the PP, Chowki Incharge Akhilesh Yadav had called one Pinakin Dinesh through telephone to come in PP G.M. Park. Pinakin Dinesh came in PP in the night time and I/C PP interrogated him. He further deposed that Pinakin Dinesh gave his disclosure statement as Ex.PW8/A. He further deposed that IO arrested him vide FIR No. 677/99 14/61 arrest memo Ex.PW8/B and his personal search was conducted vide memo Ex.PW8/C. He further deposed that father of the accused also came in the PP G.M. Park. He further deposed that as per his disclosure statement, accused Pinakin Dinesh led them to his shop at Gautam Nagar, 24/D1. He further deposed that from the first floor, in the drawer of the table, he taken out bank draft book and handed over the same to the IO SI Akhilesh Yadav who seized the same vide memo Ex.PW1/B. He further deposed that accused Pinakin Dinesh also handed over one draft of Rs.1000/ which was also seized vide memo Ex. PW1/C. He further deposed that the draft book containing 13 drafts from S. No. 389637 to 389650 except no. 389638, which are Ex. P1 collectively were seized. He further deposed that one draft bearing no. 389636 for a sum of Rs. 2,45,00,000/ and was the alleged disputed draft was seized by the IO later on and the same was not seized at that time. Again said, same was also handed over by accused Pinakin Dinesh to the IO and IO seized the same vide memo Ex. PW1/C and the draft is Ex. P3. He further deposed that the draft of Rs. 1,000/ is Ex.P2. He further deposed that as per the disclosure of accused Pinakin Dinesh, they reached at JJ Colony, Wazir Pur and from H. No. H90, accused Prabhu Dayal (correctly identified) was arrested at the instance of accused Pinakin Dinesh. IO interrogated accused Prabhu Dayal and recorded his disclosure statement Ex.PW8/D. He further deposed that IO arrested accused Prabhu Dayal and his personal search was conducted vide memo FIR No. 677/99 15/61 Ex.PW8/E & F. He further deposed that IO also obtained the specimen signatures and handwriting and total number of papers i.e. 14 are Ex. PW8/G1 to G18. He further deposed that IO recorded his statement.
During his cross examination he stated that he does not remember the exact time when Sh. Akhilesh had called accused Pinakin Dinesh in PP. He stated that he had not stated so in the statement given u/s 161 Cr.P.C. to the IO. He stated that he does not know who gave the name of accused Pinakin Dinesh to Inspector Akhilesh. He stated that he does not know by which phone number the IO called up the accused Pinakin Dinesh. He stated that he does not remember when accused Pinakin Dinesh came to PP however, it was beyond 12.00 night. Accused Pinakin Dinesh was accompanied by his father. He further stated that he cannot tell by which means of transport, they came to PP. He further stated that he does not remember about the dress worn by accused Pinakin Dinesh, when he came in PP. He stated that there were about 57 police persons present in the PP when accused Pinakin Dinesh came. He further stated that there were 34 bank officials present in the PP but he does not remember their names. He further stated that he does not remember the time when the disclosure statement of accused Pinakin Dinesh was recorded by the IO. He further stated that when the disclosure statement was recorded by the IO, besides him, there were 34 police officials and one bank official, whose name he FIR No. 677/99 16/61 does not remember were present in the PP. He further stated that he does not remember the number of pages on which the disclosure of accused Pinakin Dinesh was recorded. He stated that first the accused was interrogated by the IO, thereafter, he was arrested and then his disclosure statement was recorded. He stated that he had signed on the disclosure statement of accused Pinakin Dinesh and it was signed by other Ct. and one public witness i.e. the bank official. He further stated that he does not remember the time, when they left the PP for making the recovery from the office of accused Pinakin Dinesh. He stated that they were 4 police officials in their pvt. Car, whose number he does not remember and the bank official were in separate car but he does not know how many bank officials accompanied in their pvt. Car. He stated that he does not remember the time when they reached at the office of accused Pinakin Dinesh. He further stated that he does not remember when the key of the office of accused Pinakin Dinesh was brought by the father of accused Pinakin Dinesh. He further stated that he does not remember if father of accused Pinakin Dinesh again went back to his house to bring the key of the office and he also does not remember whether the key was produced by the father of accused in PP or directly at the office of accused Pinakin Dinesh when they reached there. He further stated that he does not remember what was the size of the office of accused Pinakin Dinesh. He further stated that he does not remember the size of wooden table from which the draft booklet, draft of Rs.2,45,00,000/ & draft of Rs. FIR No. 677/99 17/61 1000 was recovered. He stated that draft booklet and draft of Rs. 2,45,00,000/ were found together in the same drawer but he does not remember if this drawer was on the right side or the left side of the table. He stated that there were only police official present in the office of accused when the aforesaid recovery of draft booklet, draft of Rs.2,45,00,000/ and draft of Rs.1000/ was effected. He stated that no public person was present as it was night time. He further stated that he does not remember the time when they left the office of accused. He stated that the recovered draft booklet, draft of Rs.2,45,00,000/ and draft of Rs. 1000/ were sealed at the spot, again said they were not sealed. He stated that the recovered articles were not sealed by the IO in PP. He stated that the IO had not taken the photographs of the office. He stated that the recovery memo was signed by him. He stated that he does not remember anyone else signed the recovery memo of aforesaid articles. He further stated that the draft of Rs.1000/ was also in the same drawer from where the blank draft booklet was recovered. He further stated that he does not remember the time when they completed the investigation at the office of accused Pinakin Dinesh. He stated that he does not remember the time when they reached back to PP after completing the investigation. He further stated that IO had recorded his statement on 01.09.1999 but he does not remember in how many pages it was recorded. He stated that he had not signed his statement. He denied the suggestion that he did not join the investigation of the case with IO or that he had not gone to the office of accused FIR No. 677/99 18/61 along with IO. He further denied the suggestion that no recovery was effected from accused Pinakin Dinesh as stated above i.e. draft booklet, the draft of Rs. 2,45,00,000/ and drat of Rs.1000/ in his presence. He further denied the suggestion that all the recovered case property has been planted upon accused Pinakin Dinesh in order to falsely implicate him in the present case. He further denied the suggestion that the bank officials were not present along with them throughout the investigation. He further denied the suggestion that he was not joined in the investigation of the case. He further denied the suggestion that he was deposing falsely. He further denied the suggestion that accused Pinakin Dinesh had not given any disclosure statement and IO had recorded the same on his own.
During his cross examination by counsel for accused Prabhu Dayal, he stated that he remained at the house of Prabhu Dayal with the IO for about 30 minutes. He denied the suggestion that no disclosure i.e. Ex.PW8/D was made by accused Prabhu Dayal.
12. PW 9 Addl. SHO Akhilesh Yadav deposed that on 29.08.1999 he was posted at PS Defence Colony, PP Gulmohar Park as I/C PP and on that day, he received one complaint regarding the missing of the demand draft book containing 15 blank drafts from serial no. 389636 to 389650 and same FIR No. 677/99 19/61 information was lodged in DD and NCR. He further deposed that on 31.08.1999, one Mr. Ahmad, M.S. Saroha along with one Sr. Manager, Allahabad Bank came in the PP G.M. Park in the night time and they gave him a written complaint and as per the complaint prima facie offence u/s 379/468 IPC was made out. He further deposed that on the complaint Ex. PW1/A, he made his endorsement Ex.PW9/A and sent the same to PS through Ct. Satish for registration of the case and thereafter, Ct. Satish came back to PP G.M. Park and handed over the copy of FIR to him. He further deposed that he called Mr. Dinesh in the PP on telephone. Accused Panakin Dinesh came in the PP and after some time, his father also came. He further deposed that he interrogated accused Dinesh, who confessed and made the disclosure statement. He arrested accused Dinesh and conducted his personal search vide memos Ex.PW8/B & C. He further deposed that he recorded the disclosure statement Ex.PW8/A in the presence of HC Bhagirath and M.S. Saroha. He further deposed that as per his disclosure statement, accused Dinesh led him at his office along with HC Bhagirath and M.S. Saroha, Ct. Ravinder, SI Yogesh. They reached at his office at Gautam Nagar, 24/D1. He further deposed that accused Dinesh taken out one bank draft book from the drawer of the table and on checking the same, they found that draft of serial No. 389636 was missing. He further deposed that the draft serial no. 389639 to 389650 were intact and blank and draft at serial no. 389637 was filled up in the amount of Rs. 2,45,00,000/ in the name of Casio India company FIR No. 677/99 20/61 without signatures. He further deposed that accused Pinakin Dinesh also taken out one draft serial no. 389638 and handed over the same to him bearing 2,45,00,000/ in the Casio India Company duly signed as authorised signatory of Bank Officer. He further deposed that he seized the draft vide memo Ex. PW1/B. He further deposed that accused Dinesh also handed over him one more draft of Rs.1000/. He further deposed that the draft book was containing drafts from No. 37 to 50 (except 38) which is Ex. P1 and draft of Rs.1000/ is Ex. P2 and the draft of Rs. 2,45,00,000/ is Ex. P3. He further deposed that he also seized the same vide memo Ex. PW1/C and as per the bank official Mr. Saroha, it was a genuine draft. He further deposed that he recorded the statement of Mr. M.S. Saroha. As per the disclosure statement of Dinesh, they reached at JJ Colony, Wazir Pur to arrest coaccused Prabhu Dayal who was the Accountant of Micro Dot Telecom Company of Mr. Dinesh, who signed the draft and filled up the same for Rs.2,45,00,000/. At the instance of accused Dinesh, they apprehended accused Prabhu Dayal (correctly identified). He further deposed that he arrested accused Prabhu Dayal and conducted his personal search vide memos Ex.PW8/E & F. He further deposed that he recorded the disclosure statement of accused Prabhu Dayal i.e. Ex.PW8/D. He further deposed that he obtained specimen signature and handwriting of Prabhu Dayal on papers i.e. Ex.PW8/G1 to G14. He further deposed that he recorded the statement of witnesses. He further deposed that thereafter, in the month of October, he was transferred and FIR No. 677/99 21/61 he handed over the case file to MHCR.
During his cross examination by the Ld. Defence Counsel for accused Pinakin Dinesh, he stated that he does not remember the exact time when the complaint Ex.PW1/A was handed over to him by the complainant. He stated that the complaint was given by Sh. M.S. Siroha and the same was already drafted by him. He further stated that the exact time when he sent the Ct. for registration of the case FIR, however, it was night time. He further stated that the Ct. came back after registration of the case after 12 in the night. He further stated that he does not remember the phone number on which he called up accused Dinesh. He further stated that he does not remember the time when he made call to accused Dinesh to come to PP. He further stated that he does not remember the time when accused Dinesh came to PS. He stated that he does not remember if he stated so in his statement given in the court on 04.07.2007. He stated that he had not taken into possession the key. He admitted that the key was not seized. He voluntarily stated that the key was called for opening the office of accused Pinakin Dinesh and it was produced by Sh. Deen Bandhu and it was returned to him. He stated that HC Bhagirath was present in the PP from beginning of investigation. He stated that when accused Pinakin Dinesh came to PP, bank employee namely M.S. Saroha, Mr. Rai and another whose name he does not remember were present. He denied the suggestion that none of the FIR No. 677/99 22/61 bank employee was present at that time. He stated that he does not remember the exact time, when he recorded the disclosure statement of accused Pinakin Dinesh but it was after 12.00 in the night, which was written by him and HC Bhagirath and Sh. M.S. Saroha were present at that time. He further stated that Mr. M.S. Saroha had left the investigation after about 2.002.30 am in the morning when recoveries were completed from the office of accused Pinakin Dinesh. He further stated that they went in a Pvt. Car and bank officials went in another car to the office of accused Pinakin Dinesh. He further stated that he does not remember the exact time when they reached the office of accused Pinakin Dinesh. He stated that they remained in the office for about 2530 minutes. He stated that there are many houses, shops etc. around the office of accused Pinakin Dinesh but since it was night time, every thing was closed and no public witness was available for joining the investigation except the bank official. He further stated that there was no chowkidar in the market where the office of accused Pinakin Dinesh is situated. He further stated that he does not remember the size of office of the accused. He stated that the father of accused Pinakin Dinesh also reached the office before they reached. He further stated that they opened the lock and returned back the key to the father of accused Pinakin Dinesh. He further stated that it was wooden table from which draft booklet and draft of Rs.1000/ was taken out. He stated that he had not taken any photographs of the office . He stated that draft booklet, draft of Rs. FIR No. 677/99 23/61 2,45,00,000/ and draft of Rs.1000/ were not sealed in the office of accused Pinakin Dinesl but same were taken to the police post. He stated that he does not remember the exact time when they completed the proceedings in the office of accused. He further stated that they came back to PS at about 4.30 am. He denied the suggestion that no recovery was effected from accused Pinakin Dinesh as stated above in his complaint i.e. draft booklet, draft of Rs. 2,45,00,000/ and draft of Rs.1000/. He further denied the suggestion that all the recovered case property has been planted upon accused Pinakin Dinesh in order to falsely implicate him in the present case. He further denied the suggestion that the bank official were not present along with them all through out the investigation and no recovery was effected in their presence as alleged by him. He further denied the suggestion that he had not properly investigated the case. He further denied the suggestion that he was deposing falsely. He further denied the suggestion that accused Pinakin Dinesh had not given any disclosure statement and he had recorded the same on his own. He stated that he had not obtained any permission from the court before taking the specimen signature and hand writing of accused Pinakin Dinesh.
During his cross examination by the Ld. Defence counsel for accused Prabhu Gayal he further stated that accused Pinakin Dinesh himself disclosed them that accused Prabhu Dayal was his accountant. He had not sought any FIR No. 677/99 24/61 appointment letter of accused Prabhu Dayal from accused Dinesh, however, his biodata was taken. He admitted that the same is not on record. He further stated that he does not remember whether the qualification of the accused was mentioned in the same. He did not inquire about the nature of duties of Prabhu Dayal from either the coaccused or any other person. Prabhu Dayal had disclosed that he is the accountant. He further stated that accused had disclosed that he was looking after the accounts work of accused Pinakin Dinesh and used to fill up the cheques for Pinakin Dinesh. He further stated that he understand the difference between the demand draft and the cheques. He admitted that in the seizure memo Ex.PW1/C, the document which was seized had been mentioned as cheque/draft. He had not obtained the specimen signatures of coaccused Pinakin Dinesh after receipt of report from the handwriting expert. He voluntarily stated that he had been transferred by then. He further stated that accused Pinakin Dinesh was the Prop. of Micro Dot Telcom Company. He further stated that the draft was presented to Casio Company for encashment/delivery by one of the employees of Pinakin Dinesh. Thereafter, when the draft was being taken to Bank for encashment, Pinakin Dinesh called the said employee who had taken the draft from Casio Company and there he committed theft of the draft and he was informed by the said employee that the draft has been stolen by Pinakin Dinesh from the dikki of the scooter. He admitted that he cannot tell the name of the said employee. The draft had reached the office of Casio Company. He FIR No. 677/99 25/61 admitted that there is no document on record to show that the draft was received by anyone at Casio Company. He further stated that the beneficiary of the draft would have been Pinakin Dinesh i.e. The delivery of the goods against the draft would have been taken by Pinakin Dinesh. He cannot tell the number of employees of Pinakin Dinesh. He voluntarily stated that when he went for raid none was present. They remained at the house of Prabhu Dayal at the time of his arrest for about 30 minutes. He denied the suggestion that no disclosure was made by accused Prabhu Dayal as recorded by him i.e Ex.PW8/D.
13. PW 10 Dr. S.C. Mittal deposed that he was M.Sc., Phd. in Chemistry with one year certificate course in Forensic Science from D.U. And six months paper Technology Course from FRI, Dehradoon. He further deposed that in the present cases a few documents vide memo no. 898 dated 18.09.2000 were received from CFSL by the SHO, PS Defence colony for scientific examination and opinion on questioned documents in comparison with the specimen documents. He further deposed that the case was alloted to him by Incharge Documents Division of CFSL. He further deposed that he has carefully and thoroughly examined all the documents with various scientific instruments and gave his report as under:
1) Handwriting evidence points to the writer of the specimen English writings marked S1 to S6 on Ex. PW8/G1 to G6 attributed to Prabhu Dayal being FIR No. 677/99 26/61 the person responsible for writing in questioned English writings mark Q1 to Q3 on Ex. P3 and Ex. P1 (on draft no.389637). The detailed reasons for this opinion are given at page no. 1 to 3 of my report vide Ex .PW10/A. I have also given the following opinions.
2) It has not been possible to express any opinion regarding the authorship of the questioned English signatures mark Q1/1 and Q1/2 on Ex. P3 in comparison with the specimen English signatures marked S9 to S11 in Ex.
PW8/G9 to G11 and also S12 to S14 on Ex. PW8/G12 to G14 due to the reason that sufficient individual handwriting characteristic were nott found common between the two sets of signatures.
3) A careful microscopic and scientific examination of the bank draft mark Q2 on Ex. P2 bearing no. 123962 dated 30.08.1999 for Rs.1000/ appeared to be a genuine bank draft as there is no evidence of tampering or alteration. This opinion is based on scientific examination of the original documents and no help of enlarge photograph is taken nor they were prepared as the same was not required for his examination and opinion. This report is a correct report.
During his cross examination by Ld. Defence Counsel for accused Prabhu Dayal, he stated that he cannot say whether the documents in question which were sent by the police for comparison were in sealed condition or not. He FIR No. 677/99 27/61 voluntarily stated that he had not not received the same directly. He further stated that he had handed over the said documents to the authorized person (Defence Colony police) in open condition i.e. not sealed by him after getting them checked as per forwarding list. He denied the suggestion that he had given false opinion in order to favour the investigating agency.
14. PW 11 Inspector Virender Jain deposed that on 02.11.1999 he was posted at PS Defence Colony and on that day, the present case was marked to him for investigation. He further deposed that he deposited the drafts bearing nos. 389638 to 389650 and sample handwriting i.e. Ex.PW8/G1 to G14 to CFSL for examination by the expert. He further deposed that after examination by the expert, he collected the report i.e. Ex.PW10/A. He further deposed that after completion of investigation, he filed the charge sheet in the court.
15. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP. I have also carefully gone through the evidence recorded in the matter and scrutinized the documents placed on record by the prosecution in this case.
16. As per records, the Ld. Predecessor of this court had vide orders dated 05.11.2003 framed charge u/s 420 read with Section 511 IPC as well as u/s 411 FIR No. 677/99 28/61 IPC against accused Pinakin Dinesh. Hence, in order to prove its case and establish the guilt of accused Pinkain Dinesh, the prosecution has to prove that accused Pinkain Dinesh had attempted to cheat the Allahabad Bank by presenting a stolen and forged demand draft bearing no. 389638 for a sum of Rs. 2,45,00,000/ for encashment of the said amount. The prosecution also had to prove that stolen demand drafts/demand draft leaflets from S. No. 389637 to 389650 were recovered from the possession of accused Pinkain Dinesh/at his instance from his office i.e 24D/1, Gautam Nagar, New Delhi.
As far as accused Prabhu Dayal is concerned, prosecution had to prove that draft bearing no. 389638 was forged by accused Prabhu Dayal.
17. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the considered opinion that the prosecution has successfully brought home the guilt against both the accused persons.
18. It stands duly established from the deposition of PW 2 Sh. S.P. Rai Chaudhary as well as the testimony of other prosecution witnesses that stolen draft bearing no. 389637 to 389650 including draft bearing no. 389638 belonging to Allahabad Bank were recovered at the instance of accused Pinakin Dinesh FIR No. 677/99 29/61 who had retained them knowing fully well that the same were stolen.
19. It also stands established beyond doubt that the stolen draft was forged at the instance of accused Pinkain Dinesh by accused Prabhu Dayal and the forgery was got committed by accused Pinkain Dinesh with the sole intention to cheat the Allahabad Bank to the tune of Rs. 2.45 crores.
20. Though, most of the prosecution witnesses turned hostile however, the testimony of Sh. S.P. Rai Chaudhary (PW 2) who at the time of incident was the Senior Manager Allahabad Bank, Anand Lok Branch coupled with the testimony of HC Bhagirath (PW 8), the IO and the recovery of the stolen draft leaves no doubt regarding the culpability of accused Pinakin Dinesh.
21. PW 2 Sh. S.P. Rai Chaudhary proved that after receipt of information from Branch Manager, Anand Lok Branch regarding the theft of draft book, he also received another information via telephone from casio company that a draft in the sum of Rs. 2.45 crore which was issued purportedly by Allahand Bank in favour of casio company was stolen. Since the number of the draft of Rs. 2.45 crore matched with the S. No. of lost draft, he became suspicious and made further inquiry from the casio company which revealed that the above mentioned draft was handed over to casio company by accused Pinakin Dinesh who was the FIR No. 677/99 30/61 authorized dealer of casio company. PW 2 further proved that he gave the information to PP Gulmohar Park and during the course of investigation, accused Pinakin Dinesh who was the proprietor of M/s Macrodot was arrested and the stolen draft was recovered from his possession.
22. The testimony of this witness was duly corroborated by IO Inspector Akhilesh Yadav (PW 9) as well as HC Bhagirath (PW 8) who was on investigation in this case along with the IO.
23. HC Bhagirah who was examined as PW 8 proved that on the intervening night of 31.08.1999/01.09.1999 while he was present at PP Gulmohar Park, Chowki Incharge called accused Pinakin Dinesh to PP Gulmohar Park and after the accused came to police post, his disclosure statement was recorded which is on record as Ex.PW8/A and he was arrested vide memo Ex.PW8/B & C. He further proved that as per the disclosure statement accused Pinakin Dinesh led them to his office i.e. 24/D1, Gautam Nagar and from the first floor from the drawer of the table, he handed over to IO Akhilesh Yadav drafts books and drafts which include draft bearing no. 389638 vide seizure memo Ex.PW1/C. This witness further proved the arrest of coaccused Prabhu Dayal from his house no. H90 at the instance of accused Pinkain Dinesh as well as the recording of his disclosure statement vide document Ex.PW8/D to F. FIR No. 677/99 31/61
24. IO Inspector Akhilesh Yadav duly corroborated the testimony of HC Bhagirath and proved the arrest of the accused persons, recording of their disclosure statements and the seizure of the stolen drafts which includes the forged draft bearing no. 389638.
25. Hence, the prosecution witnesses especially PW 2, IO Inspector Akhilesh Yadav and HC Bhagirath categorically proved the identity of the accused persons, their arrest, their disclosure statements and the seizure of the stolen drafts which includes the forged draft bearing no. 389638.
26. During the course of arguments, Ld. Defence Counsel for accused Pinakin Dinesh vehemently argued that the prosecution has miserably failed to bring home the guilt against the accused. It was argued that the prosecution story suffers from various loopholes/lacuna. It was one of the arguments of the Ld. Defence Counsel that most of the material prosecution witnesses including complainant Sh. M.S. Saroha and in fact all material witnesses apart from PW 2 turned hostile and did not support the prosecution case and hence, the entire prosecution story was rendered unreliable. It was argued that as far as charge u/s 420/511 IPC is concerned, there is no iota of evidence against the accused and as far as the recovery is concerned, same is doubtful. Reason being that no independent public witness was joined in the investigation/at the time when the FIR No. 677/99 32/61 stolen drafts were allegedly seized from the office of the accused.
27. However, I do not agree with the Ld. Defence Counsel.
28. The law is fairly well settled now in respect to the weightage to be attached to the testimony of a witness who has been declared hostile. Evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defence. ( Middolla Harijana Thimmaiah @ Thimmappa v. State of A.P., (A.P.) (FB) 2005(1) R.C.R.(Criminal) 873).
29. In Balu Sonba Shinde v. State of Maharashtra, 2003 SCC (Crl.) 112 the Hon'ble Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. Similar observations were made in case titled as Khujji v. State of Madhya Pradesh, 1992(3) RCR(Crl.) 158 (SC) : 1991 SCC(Crl.) 916, Jodhraj Singh v. State of Rajasthan, (SC) 2007(3) R.C.R.(Criminal) 172 and Radha Mohan Singh @ Lal Saheb v. State of U.P., (SC) 2006(1) R.C.R. FIR No. 677/99 33/61 (Criminal) 692.
30. Similarly in Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 , the Hon'ble Supreme Court held :
"Where the Court gives permission to the Prosecutor to crossexamine his own witness, thus characterizing him as a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
31. In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was further held that these days it is not an uncommon practice that a witness is won over and he turned hostile.
32. Similarly in Nisar Khan @ Guddu v. State of Uttaranchal, (SC) 2006(1) Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab, (P&H) (D.B.) 2005(2) R.C.R. (Criminal) 813 and Swaran Singh v. State of Punjab, (SC) 2000(2) R.C.R. FIR No. 677/99 34/61 (Criminal) 762.
33. In Shankar Mangelal Lokhande v. State of Maharashtra, (Bombay) 2000(4) R.C.R.(Criminal) 229 the court observed while convicting the accused despite PWs turning hostile that experience showed that witnesses by lapse of time are won over and resile from their earlier statements.
34. In the case at hand, no doubt the complainant who was examined as PW 1 as well as other prosecution witnesses for example PW 3, PW 4, PW 5, PW 6 & PW 7 have turned hostile however, merely because these witnesses have turned hostile that by itself does not mean that their testimony has to be rejected in toto or that the remaining witnesses who have supported the prosecution story have deposed falsely. In fact, a careful scrutiny of deposition of PW 1 would reveal that his testimony corroborates and lends credence to the testimony of other prosecution witnesses especially PW 2 and the IO of the case.
35. Before discussing the testimony of PW 1, I am constrained to observe and I have no doubts in concluding that PW 1 turned hostile for certain extraneous considerations. He was the Chief Manager, Allahabad Bank i.e. a very senior official of the complainant/the aggrieved bank which was attempted to be cheated by the accused. It was his complaint which formed the basis of the present case FIR. However, this man when he turned up in the witness box gave FIR No. 677/99 35/61 statements which on the face of it make it amply clear that he was deliberately concealing material facts. It is important to remember that the complaint i.e. Ex.PW1/A is on the letter head of Allahabad Bank. Same is in the handwriting of PW 1 and regarding this complaint PW 1 stated in his deposition as "I was asked by the police to make a formal complaint which is Ex.PW1/A which bears my signature at point A ". And qua this statement and complaint Ex.PW1/A, PW 9 Inspector Akhilesh Yadav stated as "The complaint was given by Sh. M.S. Siroha. The complaint was already drafted by the complainant, when it was handed over to me" . Hence, no doubt PW 1 turned hostile on certain material aspects but his complaint as referred above is a true narration of the exact facts and circumstances/the incident.
36. Certain relevant portions of deposition of PW 1 are reproduced here under:
"On 28.08.99 in the evening about 5.00 PM, I was reported by an official of the bank that one draft book was missing from the counter of the bank. We made search for the same but could not find and reported the matter to the higher authorities and thereafter to the police."
37. This above statement in view of the law laid down by the Hon'ble Apex FIR No. 677/99 36/61 Court as discussed above goes on to prove that indeed draft book was stolen from Allahabad Bank.
"On 31.08.99 there was holiday in the bank in the evening I received a telephone call from S.P. Rai Chaudhary, Sr. Manager, Vigilance at my residence and he asked me to reach in the Police post Gulmohar Mark, Police Station Defence Colony. All our Sr. Officer at Zonal officer and my staff and myself reached at the police post."
38. This statement goes on to prove that on 31.08.1999 not only he but the other bank officials which necessarily includes PW 2 S.P. Rai Chaudhary were present at the police station. As I have already discussed above, PW 2 S.P. Rai Chaudhary has duly supported the prosecution story on all material counts.
"Police called one person whose name I do not know perhaps Dinesh".
39. The person Dinesh as appearing in the above statement is none else then accused Pinkain Dinesh and it stands proved that accused Pinakin Dinesh was indeed called to PS as has also been categorically proved by PW 2, PW 8 HC Bhagirath and the IO of the case.
FIR No. 677/99 37/61
"The said person was taken by the police somewhere but I do not accompanied to the police. Police brought 6/7 loose drafts at the police post. I was asked by the police to make a formal complaint which is Ex.PW1/A which bears my signature at point A."
40. This material statement of PW 1 goes on to prove that accused Dinesh was taken to his office 24/D1, Gautam Nagar and the stolen drafts were recovered at his instance as per his disclosure statement. The disclosure statement and the recovery of the stolen drafts has otherwise been duly proved by PW 2, PW 8 HC Bhagirath and PW 9 Inspector Akhilesh Yadav who is the IO of the case. It also proves the fact that indeed complaint Ex.PW1/A was made by PW 1 Sh. M.S. Saroha.
41. No doubt, he has turned hostile qua the identity of the accused and the recovery memos. However, his turning hostile on these points does not create any doubt whatsoever on the prosecution case as the identity of the accused and the arrest of the stolen seizure memos has been duly proved by PW 2, PW 8 HC Bhagirath and PW 9 Inspector Akhilesh Yadav who is the IO of the case. The seizure memo the draft i.e. Ex.PW1/C bears his signature as a witness. In his cross examination he admitted that the seizure memo bears his signatures but he went on to stated that he signed them in good faith without reading the FIR No. 677/99 38/61 contents as it was midnight. I am not inclined to believe that an educated man in fact a highly qualified man working at a sensitive post of Chief Manager of a leading bank would sign a document without reading its content. No one puts his signatures on a piece of paper on good faith. At least, not at the request of police.
42. Similarly, from the deposition of PW 3 Sh. Anil Kumar Yadav who at the time of incident was posted as Manager (Operations) Allahabad Bank, Anand Lok Branch, the theft of the drafts as well as the complaint to the police stands duly proved. The relevant portion of deposition of PW 3 in this regard is reproduced here under:
"On the day of theft of the draft the routine officer has informed me in the evening about the missing of draft book containing 17 draft leafs..............Hence, we made the complaint to the police as well as in the zonal branch."
43. Similarly, from the deposition of PW 6 Sh. Arun Mehta who was posted as Senior Manager Public Relation Officer at Zonal Office, Allahabad Bank it not only stands proved that the drafts were stolen from the bank but it also proves that the stolen draft was presented in clearing but the same was not paid. The FIR No. 677/99 39/61 relevant portion of deposition of PW 6 in this regard is reproduced here under:
"In the same year, there was a case of stolen draft which was presented in clearing but same was not paid.................However, I was called by my colleague S.K. Rai Chaudhary, Sr. Manager (Vigilance) and he asked me to visit some house in the locality but I do not remember the address of that house."
44. Hence, the contentions of the Ld. Defence Counsel that PW 1, PW 3, PW 4, PW 5, PW 6 & PW 7 turned hostile and their turning hostile casts serious doubts upon the prosecution story is devoid of merits.
45. From the above discussed deposition of the prosecution witnesses and especially PW 2 S.P. Rai Chaudhary as well as HC Bhagirath (PW 8) and the IO, the recovery of the stolen drafts at the behest of accused Pinakin Dinesh stands unambiguously proved. All the above mentioned witnesses consistently proved that after the arrest of accused Pinakin Dinesh his disclosure statement was recorded and in pursuant to the disclosure statement, the police officials visited the house of accused Pinakin Dinesh and recovered the stolen drafts which included the forged draft bearing no. 389638. This recovery is admissible in evidence against the accused as per the provisions of Section 27 of the FIR No. 677/99 40/61 Indian Evidence Act 1872.
46. Prior to the disclosure statement of the accused, the police officials had no clue about the whereabouts of the stolen drafts. However, once accused Pinakin Dinesh was called to the PS, was arrested and his disclosure statement was recorded vide document Ex.PW8/A to C it was revealed to the police officials that the stolen drafts were kept by accused Pinakin Dinesh at his office. The police officials visited the office of accused Pinakin Dinesh along with him and from the drawer of the table of his office, the drafts were ultimately recovered. This recovery is admissible in evidence against the accused as per the provisions of Section 27 of the Indian Evidence Act 1972 which is in the nature of an exception to Section 25 and 26 of the said Act. Reliance may be placed upon the law laid down in "Pulukuri Kotayya v. King Emperor AIR 1947 PC 67, Prabhoo v. State of UP AIR 1963 SC 1113, A.B. Thakur v. State of Maharashtra AIR 2007 SC 676, Ramesh Kumar Soni v. State of MP AIR 1976 SC 483, K.Chinnaswamy Reddy v. State of AP AIR 1962 SC 1788 and State (NCT of Delhi) v. Navjot Sandhu 2005 Cr.L.J 3950 (SC).
47. At this stage, I would also like to put to rest one more contention of the Ld. Defence Counsel Sh. Sandeep Goel. It was argued by him that if the prosecution story is to be believed then the draft in question i.e. draft bearing no. 389638 was FIR No. 677/99 41/61 handed over to casio company by accused Pinakin Dinesh and while the draft was being taken by one of their employees to their bank namely Sakaura Bank it was discovered that the draft was stolen. Hence, the draft in question was stolen while the same was in possession of the employee of casio company. Firstly, this theft of the draft from possession of the employee of casio company could not be proved by the prosecution. Prosecution did not examine the concerned employee from whose possession the draft was stolen or any employee of casio company to prove the theft. Nonetheless, how the draft so stolen from the possession of employee of casio company came into the hands of accused Pinakin Dinesh (because the recovery is alleged to have been effected from his office) has not been proved by the prosecution.
48. The above arguments of the Ld. Defence Counsel can be easily met/dealt with and put to rest by taking into account the complaint Ex.PW1/A as well as the prosecution story as appearing from the deposition of PW 5 Sh. Dinesh Kaushik. From complaint Ex.PW1/A it is amply clear that the forged draft was handed over on behalf of M/s Macrodot Telecom to casio company however, while the draft was in the custody of the employee of casio company, the same was misplaced. As a matter of caution, Mr. Dinesh informed the Allahabad Bank about the missing draft so as to prevent wrongful payment of the said draft. PW 1 Mr. M.S. Saroha had further written in his complaint as under:
FIR No. 677/99 42/61
"Immediately an officer was deputed from Zonal Office, who contacted Sh. Dinesh at his residence at B30, Gulmohar Park at around 7.30 pm on 31.08.1999. At that point Sh. Dinesh told that the copy of the said draft was not with him and refused to give anything in writing".
49. From all these developments, I arrive at just one conclusion that after the forging of the draft, the same were handed over to casio company by accused Pinakin Dinesh however, after handing the same, he must have become frightened or it must have come to his knowledge that the complaint by the bank regarding the missing draft is already with the bank and accordingly, he must have somehow managed to lay his hands again on the draft in question.
50. Still, even if it is held/the contentions of the Ld. Defence Counsel are agreed with that the prosecution has failed to explain how the draft again came in the possession of accused Pinakin Dinesh, the fact remains that the drafts (including draft bearing no. 389638) were ultimately recovered from the possession/at the instance of accused Pinakin Dinesh from his office. How can this recovery as proved by PW 2 and the IO be ignored? I find no reasons why PW 2 would falsely depose against accused Pinakin Dinesh. They were not inimical to each other and there was no reason for PW 2 to falsely implicate accused Pinakin Dinesh.
FIR No. 677/99 43/61
51. It was also one of the arguments of the Ld. Defence Counsel that no independent witness was joined by the police at the time of alleged recovery and hence, the entire recovery is doubtful. This contention of the Ld. Defence Counsel has no force. Reason being that firstly, testimony of PW 2, PW 8 and the IO is itself sufficient to prove the recovery and there was no requirement of any other independent corroboration. Secondly, it is not a case where independent witnesses were not joined in the investigation by the IO but it is a case where independent witnesses though joined turned hostile later on. Recovery memo Ex.PW1/C and statement of PW 2 as well as PW 1 as discussed above makes it amply clear that bank officials were part of the investigation as well as the recovery. As already discussed above, PW 1 who is the complainant in this case was not only present at the PS but he was part of the recovery team and the seizure memo bears his signatures to prove the said fact. Thirdly, the law is well settled that the Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.(Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC), Chittar Lal v. State of Rajasthan, (SC) 2003 Cri.L.J. 3548, Vadivelu Thevar v. The State of Madras, FIR No. 677/99 44/61 AIR 1957 SC 614 , Guli Chand and others v. State of Rajasthan, AIR 1974 SC 276, Vahula Bhushan @ Vehuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236 and Jagdish Prasad and others v. State of M.P., AIR 1994 SC 1251.
52. It is very hard these days to get association of public witness in criminal investigation. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. Police cannot be blamed for not associating public witness. Reliance may be placed upon the law laid down in Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 and Swarn Singh v. State of Punjab (SC) 2000(2) R.C.R. (Criminal) 762.
53. Lastly, the nonjoining of independent public witness at the time of the recovery was duly explained by the IO during his cross examination. He categorically stated that as far as nonjoining of independent public persons from the locality where the office of accused Pinakin Dinesh was situated was due to the reason that it was at around/after 12 in the mid night that they reached at the office of accused Pinakin Dinesh and at that time all the shops/houses were closed and no public person was available.
54. It was also one of the arguments of the Ld. Defence Counsel that there are fatal discrepancies/inconsistencies in the the testimony of PW 2 on one hand FIR No. 677/99 45/61 and PW 8 & 9 on the other hand. These inconsistencies for example PW 2 said in his examination in chief that the police constable went to the house of accused Pinakin Dinesh and recovered the lost draft. However, it is the case of the prosecution as deposed by PW 8 & 9 as well that the drafts were recovered from the office of the accused. Furthermore, PW 2 claimed in his examination in chief that he received a call from casio company on 25.08.1999 i.e. the same day when the drafts were stolen however, during his cross examination he changed his stand and stated that he received the call on 31.08.1999. Also he claimed that one constable went to the house of Pinakin Dinesh and recovered the draft that means there was no bank official who accompanied the police official. But on the other hand, it is a case of prosecution that the bank officials were present at the time of recovery. PW 8 claimed that the accused came to the PS along with his father however, PW 9 i.e. the IO claimed that first the accused came and later on his father also came to the PS. Lastly, though, PW 2 claimed that he received a call from casio company but he failed to give the name of the person who called him and it was only during his cross examination that he said that the name of the caller from casio company was Dinesh.
55. However, I do not agree with the Ld. Defence Counsel. These inconsistencies as pointed out by the Ld. Defence Counsel if they can really be called inconsistencies are too trivial and not one which casts serious doubts upon FIR No. 677/99 46/61 the prosecution case.
56. The law is well settled that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Reliance FIR No. 677/99 47/61 may be placed upon the observations made by the Hon'ble Apex Court in case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
57. One cannot come across a witness whose evidence does not contain some exaggeration or embellishments. Sometimes there could be even be a de liberate attempt to offer embellishment and sometime in their overanxiety they may give slightly exaggerated account. Court can sift the chaff from corn and find out truth from the testimony of witnesses. Evidence is to be considered from the point of trustworthiness. If this element is satisfied they ought to inspire confi dence in mind of the court.
58. In the case at hand, the incident occurred in the year 1999 and the deposition of PW 2 was recorded in the year 2006 i.e after lapse of 7 years. Similarly, deposition of PW 8 & 9 was recorded in the year 2011 i.e. after 12 years of incident. It is not reasonable to expect a witness to narrate an incident which occurred 712 years back with mathematical precision. Moreover, in the case at hand, though, PW 2 i.e. Sh. S.P. Rai Chaudhary had given the date of FIR No. 677/99 48/61 receipt of information from casio company initially as 25.08.1999. However, in his cross examination he clarified that the date was in fact 31.08.1999. Furthermore, he had used the word "approx. on 25.08.1999" which itself proves that due to lapse of time he had forgotten the exact date but during the cross examination his memory was refreshed and he gave the correct date. Similarly, the discrepancy regarding the recovery of draft from the house as claimed by PW 2 but on the other hand from the office as claimed by PW 8 & 9 is not of much significance. PW 2 is not a recovery witness. He was not present at the time of alleged recovery and that is why he faulted in giving the name of the right place from where the recovery was effected. Regarding the contentions that the accused came to the PS with his father or his father came later on suffice would be to say that it is an inconsistency which is of no significance. The name of the caller from the casio company was given by PW 2 in his cross examination as Dinesh and name of Dinesh is also appearing in the complaint of PW 1 which is on record as Ex.PW1/A. It will be also be worthwhile to observe that Dinesh i.e. Dinesh Kaushik was examined as PW 5 was indeed working in casio company during the relevant period. It is a different matter that he turned hostile and did not support the prosecution story. But at the same time, presence of person by the name of Dinesh in casio company corroborates the stand of PW 2 Sh. S.P. Rai Chaudhary as well as the complaint Ex.PW1/A. FIR No. 677/99 49/61
59. Hence, in view of my above discussion, the recovery of stolen drafts from the possession of accused Pinakin Dinesh/at his instance stands duly proved.
60. Now, let us discuss as to how the prosecution has been able to bring home against accused Pinakin Dinesh qua offence u/s 420 IPC read with Section 511 IPC.
61. Cheating has been defined U/s 415 IPC and the essential ingredients to bring a case within the purview of Section 415 IPC are:
1. Deception of any person.
2 (a) Fraudulently or dishonestly inducing that person:
(i) to deliver any property to any person or,
(ii) to consent that any person shall retain any property or
(b) intentionally inducing that person 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.
62. Section 511 of IPC deals with attempt and it provides punishment for attempting to commit offences. A culprit first intends to commit the offence, then FIR No. 677/99 50/61 makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence. If it fails due to reason beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparation are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence (Abhayanand Mishra AIR 1961 SC 1698 and Koppula Venkat Rao AIR 2004 SC 1874).
63. The term 'attempt' has not been defined in the Indian Penal Code. In the language of Stephen, an attempt to constitute a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. In other words, an attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but failing short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime, combined with the doing of some act adapted to, but failing short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. FIR No. 677/99 51/61
64. Now before discussing as to how the accused attempted to cheat the Allahabad Bank let us discuss how the prosecution has successfully proved the charges against accused Prabhu Dayal. Prabhu Dayal faced trial for offence u/s 468 IPC. Allegations against him were that he had forged the stolen demand draft bearing no. 389638 as recovered from the possession of accused Pinakin Dinesh by filing amount of Rs. 2,45,00,000/ in it apart from the other particulars. From the testimony of the prosecution witnesses, the FSL report and the answers given by accused Prabhu Dayal in his statement u/s 313 Cr.P.C. it stands squarely proved that he had forged the demand draft bearing no. 389638.
65. It was duly proved by PW 8 HC Bhagirath and IO Inspector Akhilesh Yadav that after accused Pinakin Dinesh was arrested his disclosure statement was recorded and in pursuant to his disclosure statement, the stolen drafts including draft no. 389638 were recovered and it was also revealed that the draft bearing no. 389638 was forged by accused Prabhu Dayal at the instance of accused Pinakin Dinesh. It is proved beyond doubt and an admitted fact that accused Prabhu Dayal was the accountant of accused Pinakin Dinesh. The draft in question i.e. draft no. 389638 was also seized vide Ex.PW1/C. During the course of investigation, the IO had also collected/obtained the specimen of handwriting/signatures of accused Prabhu Dayal vide Ex.PW8/G1 to G14. During the course of investigation, the draft in question was sent to CFSL along with the FIR No. 677/99 52/61 sample handwriting of accused Prabhu Dayal i.e. Ex.PW8/G1 to G14 by Inspector Virender Jain (PW 11). He also collected the CFSL report i.e. Ex.PW10/A. This report was prepared by Dr. S.C. Mittal, Principal Scientific Officer (Dy. Director) cum Assistant Chemical Examiner to the Government of India, CFSL. As per his report i.e. Ex.PW10/A, the specimen English writing Mark S1 to S6 on Ex.PW8/G1 to G6 were attributed to Prabhu Dayal as being the same person responsible for writing in questioned English writings Mark Q1 & Q3 on Ex.P3 & Ex.P1. Ex.P1 is draft bearing no. 389638 i.e. the forged draft. Though, no doubt, the signatures as appearing on Ex.P3 at point Q1/1 & Q1/2 could not be connected to accused Prabhu Dayal but the forgery was complete once the amount on the draft was filled by him. The document i.e. the draft did not belong to him and he had no business whatsoever to write/fill anything in it. His doing so as proved by report Ex.PW10/A makes him liable u/s 468 IPC.
66. Apart from report Ex.PW10/A, the accused Prabhu Dayal's culpability also stands proved from the answers given by him during his examination u/s 313 Cr.P.C.
67. The answer to question no. 1 and 3 read as:
"I was employed in the company of coaccused Pinakin Dinesh. I FIR No. 677/99 53/61 have studied only upto 11th class. Coaccused Pinakin Dinesh used to get cheques filled up from me in routine manner. I do not understand a difference between a cheque and a draft. It is correct that I had filled up the draft in question i.e. draft bearing no. 389638 for a sum of Rs. 2 crore 45 lac at the instance of coaccused Pinakin Dinesh as understood it was a cheque. I filled up the name of the company and the amount. Pinakin Dinesh used to get the cheques filled by me quite often. At his instance, I filled up the draft in question.................................................................................................................. ....................It is correct that certain police officials along with coaccused Pinakin Dinesh came to my house on 31.08.19901.09.1999. I was called from my house and then I was taken to PS and thereafter, I was arrested. As far as my disclosure statement Ex.PW8/D is concerned, I would like to say that I had indeed filled up the draft bearing no. 389638 i.e. the amount and company's name only. It was done by me at the instance of co accused Pinakin Dinesh. I did not put my signatures anywhere on the said draft"
68. These answers are admissible in evidence against him in view of sub clause 4 of section 313 Cr.P.C. and they are by themselves sufficient to prove that accused Prabhu Dayal committed forgery of the draft in question. Reliance FIR No. 677/99 54/61 may be placed upon the law laid down in Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258 and State of H.P. V. Wazir Chand AIR 1978 SC 315.
69. During the course of argument, Ld. Defence Counsel for accused Pinakin Dinesh submitted that these answers cannot be used against Pinakin Dinesh. While placing reliance upon the law laid down in Ranjit Mandal v. State 1997 Cr.L.J 1586 (CAL), The Public Prosecutor v. B. Ramamurthy 1973 Cr.L.J 1761 (AP) and Munshi v. State 1968 Cr.L.J 1332 it was argued that the stand taken by accused Prabhu Dayal cannot be taken as evidence against co accused i.e. Pinakin Dinesh. The submissions made by the Ld. Defence Counsel are correct as is the reliance placed upon him upon the law discussed above. Though, it cannot be used as evidence against accused Pinakin Dinesh however, the answers so elicited can be used for a collateral purpose i.e. as a touch stone to test the credibility of any piece of evidence educed by the prosecution. Reliance may be placed upon Inre Marudamuthu AIR 1931 Mad 820 and Banwari Lal v. State AIR 1956 All 341. The above answers given by accused FIR No. 677/99 55/61 Prabhu Dayal does lend credence to the testimony of PW 2, 8 & 9 and renders it more reliable. It firmly established that indeed the accused persons were arrested, their disclosure statement recorded and the forgery, how and who committed it came to light.
70. Though, Ld. Defence Counsel for accused Prabhu Dayal while placing reliance upon the law laid down in Magan Biharilal v. State 1977 Cr.LJ 711 (SC) and Rakesh Kumar v. State 2004 (1) JCC 110 (DHC) argued that as the specimen signatures of accused Prabhu Dayal were admittedly taken during the course of investigation without the permission of the court hence, the same cannot be relied upon and accordingly the report i.e. Ex.PW10/A looses its significance/admissibility and no reliance can be placed upon it by the prosecution for establishing the charges of Section 468 IPC. Therefore, necessarily the prosecution has failed to prove the charges of forgery against accused Prabhu Dayal.
71. However, I differ with the contention of the Ld. Defence Counsel. It is to be seen that apart from report Ex.PW10/A, the admissions made by the accused as discussed above during his examination u/s 313 Cr.P.C. are selfsufficient to establish forgery/make him liable u/s 468 IPC. Once answer to question no. 1 and 3 came up on record, the controversy was buried forever. There is no FIR No. 677/99 56/61 resiling/reverting back from those answers. And I have no hesitation in concluding that those answers came up on record only because the report Ex.PW10/A had nailed Prabhu Dayal. Interestingly when the charge was framed, he denied having committed forgery and apart from a bare denial he did not say a word but during examination u/s 313 Cr.P.C after he had realized that his handwriting on the draft stood proved beyond doubt he admitted committing forgery. Moreover, there was no protest from the accused when the signatures/handwriting was obtained. Thus, even the provisions of Section 20 (3) do not come to his aid/rescue. Reliance may be placed upon the law laid down in case titled as State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.
72. Now coming back as to whether the accused Pinakin Dinesh attempted to cheat Allahabad Bank or not, in my opinion, taking into account the overall facts and circumstances of the case, it stands proved that accused Pinakin Dinesh had indeed attempted to cheat the Allahabad Bank. His attempt to cheat was complete the moment the stolen bank draft bearing no. 389638 which was a forged one was recovered from his possession.
73. At the time, when the draft was recovered it was found to be filled in to the tune of Rs. 2.45 crores. It also stands proved as discussed above that the draft FIR No. 677/99 57/61 had been forged by accused Prabhu Dayal.
74. As discussed above, there are three stages, in the commission of a crime. The first is the INTENTION.
If accused Pinakin Dinesh had no intentions to cheat Allahabad Bank then where was the occasion for him to be found in possession of/what were the reasons for him retaining bank drafts which belonged to Allahabad Bank and he had no reasons whatsoever to possess/retain them. The possession of draft is enough evidence of intention.
75. The second is PREPARATION to commit it.
The draft bearing no. 389638 was forged as well as filled up for a sum of Rs. 2.45 crores and the forgery was committed by accused Prabhu Dayal who is admittedly the accountant of accused Pinakin Dinesh. The forgery was committed so as to make the draft appear as a genuine one and necessarily encashing the amount mentioned therein. This forgery is sufficient proof of preparation.
At this stage, it will be worthwhile to highlight that along with the stolen drafts which were seized vide Ex.PW1/C one draft bearing no. 123962 of Rs. 1,000/ dated 30.08.1999 in the name of Casio India Ltd. prepared at Allahabad Bank, Anand Lok Branch i.e the complainant bank was also recovered from the FIR No. 677/99 58/61 possession of accused Pinakin Dinesh. This draft is a genuine one being issued by the Allahabad Bank. As was the prosecution case, which in the overall facts and circumstances of the case I have no reasons to doubt or disbelieve, the said draft was got prepared solely for the purpose of committing forgery of draft bearing no. 389638 i.e. to match the handwriting/signatures and other particulars on draft bearing no. 389638 with those appearing in genuine draft no. 123962 so as to pass on draft bearing no. 389638 as a genuine one and without the forgery being detected. This is a proof of a well planned preparation.
76. The third is the ATTEMPT.
How can it be ignored that the draft was in favour of casio company. Admittedly, the accused was the distributor of casio company and in fact, as claimed by him during his examination u/s 313 Cr.P.C. he was one of the Principle distributor. Admittedly, he was also the Director of Macrodot Ltd. Let us once again come back to complaint Ex.PW1/A which formed the basis of the present case FIR. The testimony of PW 1 has already been discussed at length and Ex.PW1/A is the formal complaint of PW 1 i.e. Sh. M.S. Saroha, Chief Manager. Regarding his complaint Ex.PW1/A he stated in his examination in chief as "I was asked by the police to make a formal complaint which is Ex.PW1/A which bears my signature at point A". This means that PW 1 gave a complaint as to the true/exacts facts appearing on the day of the incident as they were. This FIR No. 677/99 59/61 complaint is a vital piece of evidence for the prosecution and against the accused. Surprisingly PW1 was not cross examined/questioned/grilled by the Ld. Defence Counsel. His testimony remained unchallenged. It will be worthwhile to reproduce relevant portion of Ex.PW1/A at this stage.
"It was brought to your notice vide our letter dated 29.08.1999 that draft book bearing no. 389636 to 389650 was missing from our branch on 28.08.1999. The FIR was duly lodged at your chowki. Further to our above FIR we want to bring to your notice the following: Today i.e. 31.08.1999 at around 6.00 am one gentleman identified himself as Sh. Dinesh Prop. M/s Casio India rang us our zonal office, Parliament Street New Delhi and gave the under noted information that on 30.08.1999 one M/s Macrodot Telecom of D24/I, Gautam Nagar had handed over a draft bearing serial no. 389638 for Rs. 2.45 crores dated 30.08.1999 favouring M/s Casio India. Mr. Dinesh further informed that one of their representative carried the draft to their bank namely "Sakaura Bank" Connaught Place for depositing in the account. When this representative reached the Bank at around 12.00 noon on date i.e. 31.08.1999 he discovered that the draft was missing from his custody. He disclosed the purpose of informing our Bank was to prevent the payment of the draft and Ananal Lok Branch was closed due to weekly off on 31.08.1999.
FIR No. 677/99 60/61
77. It is not a disputed fact that accused Pinakin Dinesh was the Owner/CEO/Director of M/s Macrodot Telecom Ltd. Had the draft being encashed in favour of casio company he would have been the sole beneficiary. He was the one of the Principle distributor of casio products and hence, having transactions with the casio company for the products purchased by him as a dealer from casio company. The said amount if would have been paid to casio company would have helped him in avoiding liability if any or making an advance to the casio company towards further purchases as a dealer. Handing over the draft to casio company was the attempt.
78. Hence, in view of my above discussion, I hold accused Pinakin Dinesh guilty u/s 420 read with Section 511 IPC as well as u/s 411 IPC.
79. Accused Prabhu Dayal is held guilty u/s 468 IPC.
Announced in the open (Gaurav Rao) Court on 21.09.2011 MM (SD)/Delhi FIR No. 677/99 61/61 In Re: STATE VERSUS PINAKIN DINESH ETC. F.I.R. No: 677/99 U/s 420/411/468/511 IPC P.S. Defence Colony 21.09.2011 Pr: Ld. APP for State. Both accused present on bail along with their counsel.
Vide my separate judgment, accused Pinkain Dinesh has been held guilty for offence u/s 420/511/411 IPC and accused Prabhu Dayal has been held guilty for offence u/s 468 IPC.
Now they be heard on the point of sentence on 28.09.2011.
(Gaurav Rao) MM01 (SD)/Delhi 21.09.2011 FIR No. 677/99 62/61 IN THE COURT OF GAURAV RAO:METROPOLITAN MAGISTRATE:
SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS PINAKIN DINESH & PRABHU DAYAL F.I.R. No: 677/99 U/s 420/411/468/511 IPC P.S. Defence Colony ORDER ON SENTENCE 28.09.2011 Present: Ld. APP for the State.
Convicts Pinakin Dinesh and Prabhu Dayal are present along with their counsel.
Vide separate judgment announced on 21.09.2011 accused Pinakin Dinesh was convicted u/s 420 r/w Section 511 IPC & 411 IPC and accused Prabhu Dayal was convicted u/s 468 IPC.
The learned defence counsel for accused Pinakin Dinesh has submitted that the accused has been facing trial for the last more than 12 years and the same itself has been enough punishment for him. It was submitted that the convict is around 36 years old, has a large family to look after which includes his old and ailing parents. It was submitted that FIR No. 677/99 63/61 presently, he is carrying on his business at U.S. where his wife is also residing with him and she is seven months into the family way. It was further submitted that the convict/accused is not a previous convict, not involved in any other criminal activity and he should be given one opportunity to reform himself. It was submitted that if he is not released on probation then he will loose his job. Accordingly, it was also prayed that the accused be given benefit of Section 360 Cr.P.C i.e. be released on probation.
The learned defence counsel for accused Prabhu Dayal has submitted that the accused has been facing trial for the last more than 12 years and the same itself has been enough punishment for him. It was submitted that the convict has a large family to look after and he is the sole bread earner. It was submitted that the daughter of the accused has recently expired and the accused has three school going sons. It was also submitted that he is earning a paltry sum of Rs.5,000/ and if he is sent to jail his family will suffer. It was further submitted that the convict/accused is not a previous convict, not involved in any other criminal activity and he should be given one opportunity to reform himself and it was also prayed that the accused be given benefit of Section 360 Cr.P.C i.e. be released on probation.
FIR No. 677/99 64/61
Per contra, learned APP has very vehemently argued that the act of the accused persons is unpardonable. She has submitted that the accused persons deserve no leniency least to release them on probation.
After giving my thoughtful consideration to the submissions made at bar and in particular the facts and circumstances of the present case, I am of the considered opinion that it shall meet the ends of justice if accused Pinakin Dinesh is sentenced to undergo two year RI along with fine of Rs. 1,000/ for offence u/s 420 r/w Section 511 IPC and he is further sentenced to undergo two year RI along with fine of Rs. 1,000/ for offence u/s 411 IPC. In default of payment of fine, he is directed to undergo further SI of 20 days. As the accused has already spent around 22 days i.e. from 01.09.1999 to 22.09.1999 in custody, benefit of Section 428 Cr.P.C. is given to him and the period already spent by him in custody shall be deducted from the sentence so awarded today. Both sentences to run concurrently.
I am not inclined to grant benefit of probation to the accused or to let him off after due admonition as the circumstances in which the offence was committed shows the criminal bent of mind of the accused. He not only committed theft of around a dozen bank drafts but made all possible efforts/attempt to cheat the bank to the tune of Rs. 2.5 Crores by FIR No. 677/99 65/61 presenting a forged draft. To achieve his illegal design the accused used the help of his accountant i.e. coaccused Prabhu Dayal. Had the offence being committed/went undetected the bank would have suffered a loss of Rs. 2.5 Crores in the year 1999. Its a huge amount of public money.
As far as accused Prabhu Dayal is concerned, I am of the considered opinion that it shall meet the ends of justice if accused Prabhu Dayal is sentenced to undergo two year RI along with fine of Rs. 1,000/ for offence u/s 468. In default of payment of fine, he is directed to undergo further SI of 10 days. As the accused has already spent around 27 days i.e. from 01.09.1999 to 27.09.1999 in custody, benefit of Section 428 Cr.P.C. is given to him and the period already spent by him in custody shall be deducted from the sentence so awarded today.
I am not inclined to grant benefit of probation to the accused or to let him off after due admonition as he by his act of forgery had aided the accused Pinakin Dinesh in his illegal design/attempt to cheat the bank to the tune of Rs. 2.5 Crores. He deserver no leniency whatsoever.
I order accordingly.
At this stage, an application u/s 389 Cr.P.C has been moved for suspension of sentence on behalf of both the accused persons.
Heard. Taking into account the fact that they were on bail during the FIR No. 677/99 66/61 trial, application of accused Pinakin Dinesh is allowed subject to furnishing bail bond in the sum of Rs. 50,000/ with one surety of like amount. This is subject to deposit of passport by accused Pinakin Dinesh. Ld. Defence Counsel for accused Pinakin Dinesh has referred to judgment of the Hon'ble Apex Court titled as Suresh Nanda Vs. CBI 2008 CRILJ 1599, however, the said case law is not applicable to the present case. Accused Pinakin Dinesh is now a convict. The accused has been convicted and though his sentence has been suspended as per the provisions of Section 398 Cr.P.C, however, to secure his presence before the Appellate Court if he prefers an appeal against the present judgment as he has prayed/submitted and in case of failure to do so to secure his presence after a period of 30 days to meet out the sentence so awarded today, I deem it fit that the passport is taken on record as he is admittedly residing in U.S. for the last more than 8 years i.e. after his application for permanent exemption was allowed by the Ld. Predecessor of this court vide orders dated 05.11.2003. More over Section 10 of the Passport Act applies where proceedings are pending before a Criminal Court. As far as the trial court is concerned i.e. this court, the proceedings are over as the trial has resulted into the conviction of the accused.
Application of accused Prabhu Dayal is allowed subject to furnishing FIR No. 677/99 67/61 bail bond in the sum of Rs. 20,000/ with one surety of like amount.
Bail bonds furnished and accepted.
Passport of accused Pinakin Dinesh is taken on record.
A copy of this order be given to the convict free of cost.
Announced in the open court (Gaurav Rao)
on 28.09.2011 MM(SD): Delhi
FIR No. 677/99 68/61