Delhi District Court
Habil Toppo vs The State (Govt. Of Nct Of Delhi) on 5 September, 2014
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0196912013
Criminal Appeal Number : 55/1/14 dated 13.03.2014
FIR No. : 230/1998
PS: : Connaught Place
U/S: : 420/511/471/468 IPC
Habil Toppo
S/o Sh Patrash Toppo
R/o Village Budhgawn,
TehsilJaspur Nagar
Post Harre, PS Astha
Distt. Raigarh, Madhya Pradesh .....Appellant
versus
The State (Govt. of NCT of Delhi) .....Respondent
Appeal received by Court : 13.03.14
Arguments concluded : 05.09.14
Date of order : 05.09.14
CA No. 55/1/14 1/10
Habil Toppo vs State
JUDGMENT:
1 By way of present appeal, the appellant herein has challenged the judgment of conviction dated 23/5/2013 passed by Ms. Jasjeet Kaur, Ld. Metropolitan Magistrate, Patiala House Courts, New Delhi (as she then was) whereby the appellant was held guilty for the offences punishable under sections 420 r/w 511 and 471 IPC and the consequent order on sentence dated 6/12/2013 whereby the appellant was awarded a sentence to undergo rigorous imprisonment for six months for the offences punishable under section 420/511 IPC and was further directed to pay fine of Rs.4000/. He was also directed to undergo RI for four months alongwith a fine of Rs.1000/ for the offence punishable under section 471 IPC and in default of payment of total fine of Rs.5,000/, the appellant herein was directed to further undergo RI of three months. Both the sentences were to run concurrently. 2 Briefly stated the facts that had given rise to the filing of the present appeal are succinctly given as under:
That on or before 16.3.1998, the appellant herein had entered into a criminal conspiracy with one of his associate namely Vijay Kumar Ikka to do an illegal act of cheating and thereafter the appellant herein had presented a self bearer cheque No. AH/115625238 for a sum of Rs.60,000/ at UCO Bank, CA No. 55/1/14 2/10 Habil Toppo vs State HBlock Branch, Connaught Place, New Delhi, on 16.3.1998 at about 12.15 PM for encashment by forging the signature of the account holder of the said cheque, which pertained to one Mr. Raj Kumar of M/s Kumar Builders.
On the written complaint of Sh. Vijender Kumar, Senior Manager, UCO Bank, dated 16.03.1998, present case was registered at PS Connaught Place. During the course of investigation, both the accused persons were arrested and interrogated by the police. The cheque in question was taken into police possession. Specimen handwritings and signatures of the accused persons were also taken and the same were sent to FSL for comparison and report alongwith the cheque in question and after conclusion of the investigation, charge sheet was filed against both the accused persons for the offences punishable under sections 420/511, 468, 471 and 120B IPC.
3 On appearance of both the accused persons before the Ld. Trial Court, charge for the offences under sections 420/511, 467, 471 and 120B IPC was framed against them on 15.02.2006 to which they had pleaded not guilty and had claimed trial.
4 In order to prove their guilt, beyond any reasonable doubt, the prosecution had examined 6 witnesses in all.
5 PW1 SI Mohan Chander had proved the carbon copy of the FIR Ex. PW1/A, recorded by him on the basis of rukka received from SI Chhutan Lal, CA No. 55/1/14 3/10 Habil Toppo vs State through Ct. Randhir Singh and his own endorsement on rukka at point 'X'. 6 PW2 Meenu Gambhir, a star witness of the prosecution, had turned hostile and she had not supported the prosecution case at all despite her lengthy cross examination by Ld. APP for the state.
7 PW3 SI C L Meena is the IO of the case.
8 PW4 Sh. Vijender Kumar, is the complainant, who had proved his complaint made to the police as Ex. PW4/A. 9 PW5 HC Randhir had joined the investigation with IO/SI C L Meena (PW3).
10 PW6 Insp. V N Jha, had prepared the charge sheet and had submitted the same before the Ld. Trial Court.
11 Thereafter, both the accused persons were examined under section 313 CrPC on 3.11.2012, wherein they had pleaded themselves to be innocent and had categorically denied the entire incriminating evidence that had appeared against them on record. They had also examined DW1 Sh. Raj Kumar in their defence.
12 Ld. MM after considering the submissions of Ld. APP appearing for the State as well as Ld. Defence Counsel for both the accused persons, had rendered a lengthy and detailed judgment running into 13 pages and had held the appellant guilty for the aforesaid offences, that is, under sections 420/511 CA No. 55/1/14 4/10 Habil Toppo vs State and 471 IPC and had acquitted the coaccused V K Ekka from the allegations, for which charge had been framed against him.
13 The appellant herein, feeling aggrieved from the impugned judgment of convection has challenged the aforesaid judgment of conviction dated 23.05.2013 and the consequent order on sentence, before this court on the following grounds:
a) Ld. Trial court had failed to understand that cheque in question was a genuine one which had been issued by DW 1 and the same was being handed over to the appellant merely for an encashment.
b) Ld. MM had also erred in appreciating the deposition of PW 3 SI CL Meena, who had admitted categorically that the cheque in question was genuine and the same was handed over to the appellant herein by DW 1.
c) Ld. MM had also erred in coming to a conclusion that appellant had presented a genuine cheque issued by DW1 at UCO Bank, Connaught Place with a dishonest intention to cheat the said bank officials and the insistence of the appellant for withdrawal of the cheque amount was a genuine request and the appellant had not attempted to cheat any one, including the UCO Bank, on which the cheque in question had been drawn under the genuine signature of DW1 and there was no element of dishonest intention on the part of the appellant herein in.
CA No. 55/1/14 5/10 Habil Toppo vs State
d) It was further contended on behalf of the appellant that the Ld. MM had miserably failed to appreciate the testimony of PW 4, the complainant, who had emphatically stated in the crossexamination that he had not verified the number of the cheque in question as to whether it pertained to another branch of UCO Bank or not. Further he had stated that he was not in a position to say as to whether the account number mentioned on the cheque had existed in some other branch of UCO Bank or not, hence he had no grounds or reasons to arrive at a conclusion about forgery being committed in respect of the said cheque.
e) It was also contended that the Ld. MM had also erred in coming to the conclusion that appellant had forged the cheque in question by writing "
Connaught Place" though the FSL report on this aspect was contrary and hence the appellant had been convicted on wrong assumptions and presumptions by the Ld. Trial Court.
f) It was also contended that on the one hand, Ld. MM had concluded the cheque to be a genuine one, but simultaneously without even furnishing any explanation or reasoning, had also held its presentation for encashment by appellant to be with a dishonest intention, despite the fact that PW4 had categorically admitted that at the time of incident, all the branches of the bank were not inter connected with core banking facilities and without there being CA No. 55/1/14 6/10 Habil Toppo vs State any dishonest intention or mensrea having been established against him on record, the appellant herein was wrongly convicted and sentenced by the Ld Trial Court.
14 Ld. Addl. PP Sh A K Mishra, for the state has vehemently opposed the aforesaid submissions of the Ld. Counsel for the appellant and has contended that the impugned judgment is based on sound reasoning after proper appreciation of the evidence appearing against the appellant on record and hence Ld. Trial Court was fully justified in holding the appellant guilty and convicting him for the aforesaid offences by getting the said forged cheque encashed through them.
15 Ld. Addl. PP for the State has also vehemently opposed all the aforesaid contentions of the appellant as taken by him in his appeal and has stated that since the accused was having the knowledge that he was trying to obtain payment on the basis of a forged cheque, hence, the offence under section 471 IPC stood proved against him alongwith offences under section 420/511 IPC because a forged cheque was being used by him as a genuine one in an attempt to cheat the bank officials by getting the said forged cheque encashed through them. 16 After hearing both the parties and going through the relevant portion of the record, I am of the considered opinion that out of the six witnesses so examined by the prosecution during the trial of this case in order to prove the CA No. 55/1/14 7/10 Habil Toppo vs State guilt of the accused/appellant herein, beyond the shadow of any reasonable doubt, none of the witnesses had deposed that the cheque in question which had been presented by the appellant herein for encashment with UCO Bank, Connaught Place Branch, was a forged cheque or any of the contents mentioned in the said cheque were ever forged by the appellant and hence it could not have been presumed that prosecution had succeeded in proving its case beyond any reasonable doubt against the appellant herein before the Ld. Trial Court.
17 However, in view of the crossexamination of the IO, who was a very vital and important witness in this case, I have no hesitation in holding that no evidence had come on record that accused was either having any knowledge or reasons to believe that the cheque in question which was going to be presented by him for encashment was a forged cheque. Further more, even the co accused namely V K Ekka, who had been acquitted in this case by the Ld. Trial Court, had categorically admitted in his examination under section 313 CrPC that cheque in question was handed over to the present appellant before this court by Sh. Raj Kumar, proprietor of M/s Kumar Builders and he had also stated that the cheque in question was a genuine one and this fact was also admitted not only by the IO (PW3) during his crossexamination but also by the concerned UCO Bank Branch of Baraily, U.P. during investigation of this CA No. 55/1/14 8/10 Habil Toppo vs State case by IO as well as by Sh Raj Kumar DW1, in whose favour the cheque book containing the leaf in question was issued by the concerned branch of the UCO Bank.
18 So far as the allegations pertaining to any forgery being committed in respect of the cheque by making it look like as if cheque was drawn on Connaught Place Branch of UCO Bank is concerned, the FSL result filed on record categorically stated that it was not in a position to render any opinion with respect to the writings Q1 to Q7 appearing on the face of the cheque in question and only writing appearing at point Q8 and point Q9 pertained to the present accused/appellant herein.
19 In view of the the above discussion, by no stretch of imagination, appellant can be held or presumed to be the author of those writings mark Q1 to Q7 and as such the prosecution had miserably failed to prove its case against the appellant before this court beyond any reasonable doubt and the Ld. MM had thus committed a gross error and illegality by erroneously appreciating the evidence available on record.
20 As a result, the appeal is allowed and the impugned judgment of conviction and consequent order on sentence are hereby set aside and the appellant is acquitted of the charges levelled against him. Bail bonds executed by him either before the Ld. Trial Court or before this court stand cancelled CA No. 55/1/14 9/10 Habil Toppo vs State and surety stand discharged.
21 TCR be sent back to the concerned court with a copy of the judgment for perusal and necessary compliance.
22 Appeal file be consigned to record room after completion of all necessary formalities.
Announced in the open
Court on 04.09.2014 (LOKESH KUMAR SHARMA)
ADDITIONAL SESSIONS JUDGE04
NEW DELHI DISTRICT/ PATIALA
HOUSE COURTS/NEW DELHI
CA No. 55/1/14 10/10
Habil Toppo vs State