Delhi District Court
State vs . Inderpal Etc Date Of Institution ... on 20 July, 2007
IN THE COURT OF SH. AJAY PANDEY
METROPOLITAN MAGISTRATE : DELHI
STATE Vs. Inderpal etc Date of Institution 22/01/94
FIR No 14/91 Judgment Reserved
on 07/07/07
PS- Kashmere Gate Date of Judgment 20/07/07
Under Section 420/468/471/34
IPC
JUDGMENT
a) Sr. No. of the case -5/2
b) Date of offence In the year 1990
c) Name of the complainant Sh. Satbir Singh,
Deputy Director,
Horticulture, II, DDA
d) Name & address of the accused 1. Inderpal S/o Dariyaw Singh R/o B1021, B Block, Shastri Nagar, Delhi.
2. Radhey Shyam S/o Gyan Singh R/o WP-39, Wazirpur, Delhi.
3. Muralidhar Sharma S/o Durga Dutt Sharma, R/o-100/2A, Bhajan Pura
e) The offence complained of 420/468/471/34 IPC
f) Plea of accused Pleaded not guilty
g) The final order Accused no.2 convicted & accused no.1 and 3 acquitted
h) Date of order 20/07/07 BRIEF STATEMENT OF REASONS FOR DECISION:
1. A charge sheet for offence U/s 420/468/471/34 IPC was filed by the prosecution against accused Inder Pal, Radhey Shayam and Muralidhar Sharma. It was reported in report U/s 176 (3) Cr. P.C that a complaint regarding payment of CPF/GPF advance bills of some workers on the basis of forged vouchers/bills was received in police station Kashmere Gate from Mr. Satbir Singh, Deputy Director, Horticulture-II, ISBT. In the complaint received in the police station, accused Inder Pal Singh and accused Radhey Shyam, work charge Malis were suspected to have embezzled DDA money by receiving double payment. It was also stated in the complaint that all payments were made on the pay day when due to heavy rush of work, payment authorities were too busy and some persons manged to get double payment by availing this opportunity on pay day. Persons working in the office of Assistant Director and the persons helping office of cashiers in disbursing/distributing the amount were suspected in the fraud of getting the double payment.
2. After receipt of information in the police station, an FIR was registered on 19/01/91. During investigation, it was revealed that accused Muralidhar Sharma was working as chashir at the relevant point of time when double payment was made and, therefore, he was also made an accused during course of investigation.
3. On filing of chargesheet by police personnel, my learned predecessor supplied necessary copies to accused persons and after prima facie finding grounds to presume that accused committed offences punishable U/s. 420/468/471/34 IPC against accused persons, framed charge against them to which all the accused pleaded not guilty and claimed trial.
4. In support of its case, prosectuion examined 10 witnesses. Only part cross-examination of PW1, an employee of DDA, namely Madan Mohan was recorded and he was not called by the prosecution for recording of his remaining examination. Other witnesses of prosecution were PW2, Satbir Singh, who was also complainant. PW3 SI Om Prakash was second IO of the case. PW4 Suresh Kumar is official working in Horticulture Department, Division-II, DDA. PW5 Munni Lal is UDC, Horticulture Department, Division-II, DDA. PW6 Sh. S.L. Mukhi is retired Principal Scientific Officer, CFSL, CBI, New Delhi. PW7 HC Ravinder Kumar assisted IO in collecting specimen signature of accused persons. PW9 SI D Nath is second IO of the case received CFSL report from office of CFSL, CBI, New Delhi. PW 10, Inspector Sanjeev was working as Duty Officer and who appeared in witness box to prove FIR Ex. PW10/A. Summary of statement of accused persons U/s 281 Cr. P.C. Was recorded separately. They did not lead any defence evidence.
Lengthy final arguments have been heard on behalf of both parties.
5. I have considered final arguments of Learned APP for the state.
Learned Mr. N.S. Negi, advocate for accused Muralidhar Sharma and learned Sh. Mukesh Jain, advocate for accused Inderpal and Radhey Shyam, and have also carefully perused the record.
6. Learned APP for the state has submitted that prosecution has successfully proved its case against the accused persons by producing relevant documents and by testimony of the witnesses. Counsel for the accused persons, on the other hand, have submitted that accused persons are entitled for honourable acquittal as prosecution has miserably failed to prove its case against accused persons.
7. In view of the facts and material appearing on record, I shall consider the case of prosecution against each individual accused. Firstly, I shall consider the case against accused Muralidhar Sharma.
8. From the original complaint as well as from the statement of complainant Satbir Singh and other witnesses, it is clear that alleged double payment was made on the pay day when there is generally heavy rush of workers to get their salary and other money. PW2 Satbir Singh has also admitted that there are around 1500-2000 employees in Horticulture, Division-II and personal acquaintance or identification of each and every employee by the cashier was not possible. From the statement of PW2, it is also clear that ordinarily payment was used to be withdrawn by Assistant Director concerned for disbursement to the workers due to their personal identification. It has further come in his statement that employees against whose names, the double payment was made, were not working in the account section from where the payment was released and were work charge employees working at their respective sites under the control of Assistant Director concerned. It has also come on the record that personal identification of all the work charge employee by the cashier was not possible.
9. PW2 has further deposed that all bills were placed before him for approval and sanction. He further stated that bills were supposed to be prepared by sub division clerk of the Sub Divison concerned where the work charge employees were posted. He further stated that all the bills were approved and cleared by him and were bearing his signatures and that he was final authority to pass the bills. In his cross-examination, he also stated that he did not know who had prepared the bills in question. This witness also deposed that there were other employees besides the accused working in the accounts branch. This witness also testified that accused Muralidhar Sharma was only an accounts clerk and he had no knowledge of the work at site. He also stated that accused Muralidhar was not working at the site where employees in whose name bills were taken were working. This witness has also admitted that no bill was prepared at the place where accused Muralidhar was working.
10. By reading testimony of this witness and other employees of DDA as a whole, I am of the opinion that prosecution has failed to prove any charge against accused Muralidhar.
11. Admittedly accused Muralidhar was merely a cashier working in the accounts branch of DDA, Horticulture Divison-II and was not acquainted with each and every work charge employee. Admittedly, payment of the bills were made on pay day when there is generally heavy rush of employees. Admittedly the bills were not prepared by him and further it has also been admitted that bills were bearing signature of final authority i.e. Deputy Director DDA, Horticulture Division-II who was competent to pass any bill. Accused Mralidhar was working as a subordinate of Sh. Satbir Singh Deputy Director, DDA, Horticulture Division-II and admittedly bills were also signed by the clerk of the Assistant Director and accused Muralidhar was not involved in the preparation or making of the bills. Witness PW2 has also admitted that once the bills are passed and sanctioned, cashier is bound to make payment of the bills. He, however, voluntarily added that cashier is supposed to identify the person before the making the payment.
12. Therefore, the only little incriminating allegations, which I can read from the testimony of witness PW2, against accused Muralidhar is that he failed to establish identity of the persons before releasing the payment to the concerned official.
13. Even this incriminating circumstance, in my opinion, cannot turn into conclusion that accused Muralidhar was in any way involved in the forgery or was knowing that double payment was being made to some person other than in whose name the bills were existing. From the testimony of officials of the concerned Horticulture Department of the DDA, it has come on record that some other persons, being Mali, Chowkidar etc. were also used to assist the cashier in disbursement of salary and payment to its employees, especially on the pay day. It is also admitted that there is heavy rush of employees with the cashier on the pay day and in such circumstances detailed enquiryof each and every person is not possible by cashier.
14. There may be circumstances when payment would have been disbursed by some other official who was deployed with cashier Muralidhar for his assistance on the pay day. It is further possible that even negligence in identification of recipient of the amount was done by such other person deployed for disbursement of payment alongwith cashier Muralidhar. It has to be kept in mind that accused Muralidhar was having no control regarding deployment of particular person in cash branch for his assistance in disbursing of amount and deployment was used to be done by complainant Satbir Singh, Deputy Director, Horticulture Division-II, DDA. As already observed, personal identification of about 1500 to 2000 employees by one single cashier is not possible, hence, in my opinion, accused Muralidhar cannot be in any way held responsible for preparation or user of the forged bills or for voluntary disbursement of payment with the knowledge that bills produced in cash branch were forged. Furthermore, prosecution has not proved any document to show that any payment of the duplicate or forged bills were made under signature of said cashier Muralidhar. It has also come on the record during testimony of PW2 that accused Muralidhar was not even working in the cash branch for whole of alleged period when said double payment is alleged to have been made. It has come during cross examination of complainant Satbir Singh that accused Muralidhar was relieved from the cash branch on 15/09/90 and bill Ex. PW2/1 was made on 31/10/90. Other bill Ex. PW2/2 was prepared on 11/10/90. Payment of both these bills were made when accused Muralidhar was not working in the cash branch and was already relieved from the said branch. Hence, no liability of double payment with respect to these bills can be fastened upon him by any stretch of imagination.
15. In view of my aforesaid discussion, I am of the opinion that prosecution has failed to establish its case against accused Muralidhar. Accused Muralidhar is entitled for honourable acquittal.
16. Now, I shall consider liability of accused Inder Pal in respect of offence alleged against him in the light of evidence and material that has come on the record.
17. From the testimony on record this accused was working as Mali in DDA at Horticulture Division No.2. The work of assisting the cashier was used to be taken in the department from the Malis etc. Learned APP for the state has submitted that even if there is some weak evidence against accused Muralidhar, accused Inderpal is liable to be convicted because he even deposited the embezzled amount with the complainant out of his free will. PW2 Satbir Singh has deposed to this effect. He further argues that CFSL report is also against this accused and his hand writing is found on questioned document Q7, Ex. PW6/C which is a forged bill.
18. Learned Mr. Mukesh Jain, counsel for accused Inder Pal, on the other hand has submitted that none of these facts is sufficient to conclude that accused Inderpal was in any way involved in the forgery of the alleged bill Ex. PW6/B or its payment to the persons not entitled. I have persued document Ex. PW6/A. As per CFSL report, the alleged writing Q-7, was written by accused Inderpal which is on the top of bill. I have perused the writing which mentions about nature/branch of work to which the bill was related to.
19. It has already come on the record that bills were not prepared at the cash branch. It has further come on record that accused Inder Pal was not working at site. It has been rightly submitted by Mr. Mukesh Jain, learned defence counsel that hand writing allegedly belonging to accused Inder Pal only mentions for what work establishment the bill is related to. It has not come on record that accused has falsely verified that bill. There is nothing on the record to suggest that bills which might have been forged were not related to that particular work or that no such work which was verified by the accused was in existence. Hence, bonafide verification by the accused about this bill cannot be ruled out.
20. Even realisation by the complainant of alleged embezzled amount from accused Inderpal do not point out towards any infalliable conclusion about his guilt. During the course of arguments as well as in the cross examination, it has been suggested to the witnesses that accused Inder Pal and Radhey Shyam had deposited embezzled amount under protest. Mr. Jain has rightly submitted that possibility of accused persons paying this amount without being involved in the embezzlement cannot be ruled out. It may be that there was some negligent performance of duties by these accused persons and some amount was released to persons not entitled to and fearing their ultimate liability, these accused persons deposited the amount in order to save them from disciplinary action as well as from criminal case, (though they had to face criminal case). But every negligent performance of duties is not culpable which would render concerned employees liable for conviction in a criminal case. In the present case, accused Inder Pal cannot even be said to be negligent while verifying a particular document to be relating to a particular work or branch. It has to be kept in mind that this particular document was bearing approval and sanction of his top boss i.e. Deputy Director, DDA, Horticulture Division-II. There is possibility that he was not having any knowledge of the bill being forged or illegal. Hence, in view of my discussions while acquitting accused Muralidhar Sharma and the reasons as discussed above, even accused Inder Pal is also entitled for acquittal.
21. So far as accused Radhey Shyam is concerned, in my opinion, it has been rightly submitted by learned APP that by considering evidence and circumstances as a whole prosecution has been able to prove its case against accused Radhey Shyam and he individually or in association with other persons had received double payment against the bills allegedly forged.
22. It has come in the testimony of the witnesses that accused Radhey Shyam was working in the cash branch and at times he also used to assist the cashier at cash counter. In his substance of statement also, accused Radhey Shyam has admitted that he was working in accounts branch and sometimes he was directed and made to sit at cash counter. In his statement, he further stated himself to be unaware of the complaint made by Horticulture Division-II with respect to double payment on the basis of forged bill. He also stated that part embezzled amount was taken from him by force by the department. He also admitted that his signatures were taken by IO during investigation. He admitted his hand writing on document Ex. PW6/B and PW6/C. However, he denied his signature on Ex. PW6/A.
23. As per testimony of the witnesses, it is clear that on pay day there was heavy rush with the cashier and other employees were deployed to assist the cashier in disbursement of payment to the employees. It is clear that even deployment of said Radhey Shyam was made during pay days when alleged double payment was released to the persons not entitled to.
24. Now, I shall consider effect of the documents upon which hand writing of accused Radhey Shyam is admitted or established.
25. Accused Radhey Shyam has admitted his hand writing on PW6/B and PW6/C at point Q2 and Q2/1 respectively (though by typographical mistake, it is written as point 22 and 22/2 in statement of witness). Correction made by me in my hand while passing the judgment. In the admitted hand writing in document Ex. PW6/B at point Q2, accused Radhey Shyam has verfied signature of recipient who received the payment against said bill. In admitted hand writing Q2/1 also, accused Radhey Shyam has verified signature of the recipeint aginst bill Ex. PW6/A. It has to be kept in mind that verification of signatures is different from the verification on the bills in general that a particular bill related to a particular work. Signature of persons are verified when the person verifying the signature personally knows the recipient or is well acquainted with his signatues. In the present case, when payment is made to two different persons, accused Radhey Shyam was verifying that person receiving the payment is a genuine person and the payment is released to the right person.
26. Learned counsel for the accused has submitted that prosecution has not proved on record that in fact payment was not received by the person whose signatures are verified by accused Radhey Shyam in document Ex. PW6/B and Ex. PW6/C. He, therefore, argues that accused Radhey Shyam cannot be convicted on the basis of these admitted hand writing because he had verified only the persons and his signature and the bills were duly approved and sanctioned by the final authority and accused Radhey Shyam had no reason to doubt that bills were forged nor he had any chance to ascertain that doube payment is sought to be released on the basis of these bills Ex. PW6/B and Ex. PW6/C.
27. Learned defence counsel would have succeeded in his case had their been no corroborative matieral against accused Radhey Shyam. In my opinion, the testimony of PW6 Sh. S.L. Mukhi, Retired Principal Scientific Officer of CFSL, CBI, New Delhi, is a strong piece of evidence against his client accused Radhey Shyam. Documents Ex. PW6/B and Ex. PW6/C have further corroborated connivance and involvement of accused Radhey Shyam in disbursement or release of payment to the persons not entitled to. PW6. Sh. S.L. Mukhi has testified that he examined document at CFSL, CBI, New Delhi. He testified that writer of the specimen writing and signature mark S1 to S6 , Ex. PW6/1 to Ex. PW6/6 was the person responsible for questioned writing Q1 and Q2 and Q2/2 on document Ex. PW6/B and PW6/C.
28. Testimony of this witness with respect to questioned hand writing Q2 and Q2/1 has been corroborated by the admission of the accused that those hand writing were belonging to him. Accused has, however, denied that questioned hand writing Q1 was also belonging to him. Questioned hand writing Q2 in Ex. PW6/A are the signatures of the recipient who has received payment against the bill Ex. PW6/A. That person has signed in Hindi as one Mr. Nepal Singh in whose favour bill Ex. PW6/A has been prepared and paid.
29. Counsel for accused Radhey Shyam has submitted that accused cannot be convicted on the sole testimony of hand writing expert which is a weak piece of evidence and which require corroboration which is lacking in the present case. Learned counsel for the accused may be justified in his submissions in particular facts and circumstances of the case but each case has to be decided in its own facts and circumstances. His submissions would have more force had the hand writing expert been a partisan witness called by one party of the litigation. In the present case, though the witness PW6 was a witness of prosecution but he was paid his diet money by the court and was working as Senior Scientific Officer of CBI, New Delhi and was paid his salary by Central Government and not by investigating agency i.e Delhi Police. Furthermore, there is no possibility of his falsely implicating the accused Radhey Shyam or to give favourable report in favour of accused Inder Pal or Muralidhar Sharma. Furthermore, veracity and truthfulness of the witnesses has to be decided in the witness box itself. Whether a particular witness is reliable or not has to be ascertained and determined on the basis of his testimony and cross examination. In the present case, there is no cross examination of this witness by either of the accused persons and testimony of this witness has remained unrebutted and unshaken, which is equivalent to implied admission of testimony of the witness. There is no challenge to evidence of witness Sh. S.L. Mukhi about his expertise and his special skill in identification and matching of given hand writings with the specimen writings. Specimen of the hand writings are admitted by the accused. I have perused report Ex. PW6/D prepared by this witness Mr. S.L. Mukhi, detailed discussions of the characteristic and the points of similarity has been made out by him in his report Ex. PW6/D. Word to word comparison has been made and as many as 15 detail reasons before coming to the conclusion that questioned hand writing Q1 has been written by writer of specimen writings, are discussed. I have perused reasons stated in the report and I am satisfied about his skills and the conclusions made by him during comparison of specimen hand writings with that of questioned one. Hence, I hereby conclude that report Ex. PW6/D prepared by Mr. S.L. Mukhi, Retired Senior Scientific Officer, CFSL, CBI, is trustworthy and reliable piece of evidence which can be admitted without corroboration.
30. In the present case, there is even corroboration of his report by the admission of the accused at points Q2 and Q2/1 which might have been considered as immaterial by the accused and, therefore, he might have admitted the same during his statement U/s 281 Cr. P.C but which by circumstances, go to corroborate the testimony of witness PW6 as well as voluntary involvement of accused Radhey Shyam in distribution or disbursement of the payment to the persons not entitled to against alleged forged bills.
31. From the aforesaid discussion, it is clear that accused Radhey Shyam, by putting false signatures of Mr. Nepal Singh, alleged beneficiary of Ex. PW6/A, had made a part of the false document and thereby committed forgery. He further committed this forgery for the purpose of cheating Horticulture Division-II, DDA in order to receive money in somebody else name. He further used these forged documents as genuine in order to receive payment from Horticulture Division-II, DDA. Hence, in my opinion accused has committed offences U/s 468/471/420 IPC.
32. In view of my aforesaid discussions, I am of the opinion that prosecution has failed to prove its case against accused Murlidhar and accused Inderpal. Accordingly, they are acquitted for offences charged. Their bail bond cancelled. Sureties discharged.
33. I am, however, of the considered opinion that prosecution has successfully proved its case against accused Radhey Shyam. It has been successfully proved by prosecution that accused Radhey Shyam committed forgery for the purpose of cheating Horticulture Division-II, DDA, in order to receive money in somebody else name and he further used forged documents as genuine in order to receive payment from Horticulture Division-II, DDA and dishonestly received said payment. Hence, accused Radhey Shyam is convicted for offences U/s 468/471/420 IPC. Let convict be heard on the point of sentence separately. ANNOUNCED IN THE OPEN COURT ON THIS 20th DAY OF JULY , 2007 (AJAY PANDEY) METROPOLITAN MAGISTRATE DELHI.
FIR No. 14/91
PS- Kashmere Gate
20/07/07
Present: APP for the state.
Accused Muralidhar on bail with Sh. N.S. Negi, advocate. Accused Inderpal and Radhey Shyam on bail with Sh. Mukesh Jain, advocate.
Vide my separate judgment, accused Muralidhar and and accused Inderpal have been acquitted. Their bail bonds cancelled. Sureties discharged. Original documents, if any, in respect of these accused be released on proper receipt and verification.
Accused Radhey Shyam has been convicted for offence U/s U/s 468/471/420 IPC. Learned counsel for convict seeks time to address arguments on sentence. At request, come up for arguments on sentence for convict Radhey Shyam on 26/07/07.
(Ajay Pandey) MM/Delhi 20/07/07 IN THE COURT OF SH. AJAY PANDEY METROPOLITAN MAGISTRATE : DELHI STATE Vs. Inderpal etc FIR No 14/91 PS- Kashmere Gate Under Section 420/468/471/34 IPC 06/10/07.
ORDER ON SENTENCE.
Present: APP for the state.
Convict Radhey Shyam with Sh. Mukesh Jain, advocate. Learned APP for the state has prayed for maximum sentence to convict.
Counsel for Convict, on the other hand, submits that he be extended benefit of probation U/s 4 Probation of Offenders Act. He further submits that convict has already deposited the alleged embezzled amount with the department in the year 1991-92 itself. He further submits that convict has never been convicted previously. He also states that no pecuniary loss was caused to the department of convict. Convict is stated to be the only bread earner in his family having small children. His spouse is a house wife. It is also submitted that convict is facing trial since 1990 and has remained always regular in appearance and has maintained good conduct during pendency of trial and convict is stated to have remained of good conduct and no complaint about his work or conduct was
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received by his department nor any dissatisfaction about his performance of duty was recorded in his service after institution of the present case.
In State of UP Vs. Randhir Singh AIR, 1999, SC, 1201, while restoring an order of conviction U/s 467 and 468 of the Indian Penal Code, passed by the learned Sessions Judge, in case of fabrication of a forged bail order by the stenographer of a learned Judge of Allahabad High Court, Apex Court held in para 4 of the judgment:-
In this view of the matter, we unhesitatingly reject the contention raised by Mr. Upadhyay, appeared for the respondent and hold that the accused-respondent committed offence U/s 466 and 468 IPC. We, therefore, set aside the order of acquittal, passed by the High Court of Allahabad and convict the accused-respondent under section 466 and 468 of the Indian Penal code but since the incident itself was of the eyar 1971 and more than 27 years have elapsed in the meantime and the learned Sessions Judge himself had granted the benefit of of Section 4 of the U.P. First Offenders Probation Act and there is no bad antecedents, we also affirm the order of learned Additional Sessions Judge and direct that the respondent should execute a personal bond of Rs. 2000/- with one surety of the like amount for keeping peace and good behavior for a period of two years.
In the present case, convict is 4th class employee and is facing trial since last 17 years, has remained regular in his
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appearance. On my personal enquiry during the course of proceedings as to how many enquiry against his conduct are initiated/pending in his department he states that no enquiry or other proceedings are pending against him about his conduct or performance of duty. One of the daughter of convict is aged about 15 years and studying in 9th standard. Sentencing the convict to imprisonment may not only cause him to loose the job but may also ruin future of his wards. Hence, considering the pendency of the case since last about 17 years and further considering that convict is the only support in his family, I am of the opinion that the court should exercise its discretion U/s 4 Probation of Offenders Act. I am further of opinion that the complainant i.e the department of the convict should receive the compensation of the alleged embezzled amount, if not already recovered from the convict. Hence, in exercise of powers U/s 4 Probation of Offenders Act, instead of sentencing the convict at once to any punishment, I hereby direct that he shall be released on his entering into a bond for Rs. 20,000/- with one surety to appear and receive sentence when called upon during a period of two years and in the meantime to keep the peace and be of good behavior. I further direct the convict to pay compensation of Rs. 39,000/- to his department and to obtain a
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certificate to this effect. On his failure to produce the certificate to that effect, court shall commence recovery of compensation as per sub section 2 of section 5 Probation of Offenders Act. At request of the convict, he is allowed to file the necessary certificate about payment by him and recovery by his department within two months from today.
Now, come up for compliance and consideration on 13/12/07.
(Ajay Pandey) MM : Delhi 06/10/07