Delhi District Court
State vs . Priyavarat Ghosh & Anr. on 29 October, 2015
IN THE COURT OF Ms. SHEETAL CHAUDHARY PRADHAN:
METROPOLITAN MAGISTRATE10 (SOUTHEAST): SAKET
COURTS:NEW DELHI
State Vs. Priyavarat Ghosh & Anr.
FIR No. 372/1992
U/s 419/420/467/468/471/511/120B IPC
P.S. G.K.I
J U D G M E N T
Serial No. of the Case : 179/2/14
Unique Identification No. : 02403R0002981995
Date of Institution : 05.12.1995
Date on which case reserved for
judgment : 14.10.2015
Date of judgment : 29.10.2015
Name of the complainant : B. G. Tawker
Director Apparel Export
Promotion Council (AEPC),
G. K.I, New Delhi
FIR No.372/1992
P.S. G. K.I Page No.1 of 31
Date of the commission of offence: 24.11.1992
Name of accused : 1. Priya Varat Ghosh
S/o Late B. C. Ghosh
R/o RZH3/Mahabir
Enclave, Palam Vihar, New
Delhi.
(2) Sunil Mehra
S/o P. R. Mehra
R/o 401, Narmada
Apartment, Alakhnanda,
New Delhi.
Offence complained of : U/s 419/420/467/468/471/120B
IPC
Offence charged of : U/s 419/420/467/468/471/120B
IPC
Plea of the accused : Pleaded not guilty.
Final order : Both accused acquitted
Date of Institution : 15.12.1995
Date on which case reserved
for judgment : 14.10.2015
Date of judgment : 29.10.2015
FIR No.372/1992
P.S. G. K.I Page No.2 of 31
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
With the present order the trial of 23 years, shall come to an end Briefly the case of the prosecution is that the present FIR was registered on a complaint made by complainant namely B. G. Tawker being the director of Apparel Export Promotion Council (henceforth called AEPC) dated 09.11.1992 wherein he has stated that the aforesaid company was a body sponsored by Ministry of Textile, Govt. of India for authentication of Shipping documents, enrolling exporters of readymade garments and issuance of export licenses. That on 19.10.1992, a telephonic call was received by one Balwant Singh, Assistant Director from Mr. Bhatia, who was the superintendent, Customs ICD, Pragati Maidan, New Delhi for verification of signatures on the shipping document. Sh. Balwant Singh AD in turn requested Mr. Bhatia to send a document officially in order to give a definite answer about the genuineness of signatures. As nobody turned on 19.10.1992 for verification of signatures of Sh. Balwant Singh, they spoke to Mr. Bhatia on 20.10.1992 to send the documents for verification but it was informed by him that on 19.10.1992 Sh. Sanjay Bansal, Inspector Customs had visited their office and on further inquiry it was brought to the FIR No.372/1992 P.S. G. K.I Page No.3 of 31 complainant's notice that the customs official Sanjay Bansal who had visited the office was intercepted by one of the staff members and who impersonated himself as Balwant Singh and confirmed the genuineness of signatures, whereas signatures were forged. The matter was conveyed to Assistant Collector of Customs who in turn had taken penal action of impounding the consignment and further action. Further, the statements made by the exporters and the shipping agent were forged and the same was made by Sh. Ghosh.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. On the basis of material placed on record, charge was framed against the accused under Section 419/420/467/468/471/120B IPC to which they pleaded not guilty and claimed trial.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as many as ten FIR No.372/1992 P.S. G. K.I Page No.4 of 31 witnesses in order to prove its case.
PW1 B.G. Tawker (complainant) deposed that in the year 1992, he was working as a Director of AEPC having its office at Jamroodpur. On 09.11.1992, he made a complaint to SHO, P.S. G.K.1 Ex.PW1/A. Further, he made this complaint on the basis of the inquiry made by him and finding the same to be correct. The complaint was against accused P.V. Ghosh, who was his employee at that time. The documents were also enclosed with his complaint and the photocopy of the same were collectively marked P1 to P26.
During the crossexamination, PW1 stated that it was correct that he had no personal knowledge about the contents of the complaint Ex.PW1/A and that he had directed one Balwant Singh, Asstt. Director to conduct the inquiry and after inquiry, he had submitted the documents. He did not know as to where the original documents of Mark P1 to P26 would be available. The original shipping invoice consisting of four pages was Ex.PW1/B. He further stated that it was correct that he had not dealt with documents Ex.P1 to P4 at any stage and he did not know as to who prepared the same. Further, he was unable to state whether the signatures at point Q1 to Q8 were of Balwant Singh as the same could only be verified by Balwant Singh or whether the same were prepared or issued by him.
PW2 C. B. Bhatia, (Assistant Commissioner Customs) FIR No.372/1992 P.S. G. K.I Page No.5 of 31 deposed that in the year 1992 he was working as Superintendent (Customs) and was having his office at Patparganj. The goods meant for export are accompanied by a shipping bill and the exporters / clearing agent were required to submit documents including shipping bills for any consignment to any exporter. The shipping bill Ex. PW1/B1 to B4 (4 copies) were received in his office for clearance of garments and were having the stamps of AEPC and signature of Balwant Singh. At that time, Balwant Singh was working as Asstt. Director and that PW2 suspected about the genuineness of signature of Balwant Singh on Ex.PW1/B1 to PW1/B4 and therefore, he made a telephonic call to him, but in reply he was told that the same could be verified after seeing. Therefore, he sent Sanjay Bansal on 19.10.1992, to go and make inquiry regarding the same. Sh.Sanjay Bansal told him that he had gone to verify the signature of Balwant Singh on telephone, that he met Balwant Singh and as told by Balwant Singh, the signatures were genuine. On 20.10.1992 in the morning, PW2 received a call from Balwant Singh that nobody had come to verify the signature in his office and then he stopped the consignment.
During the crossexamination, PW2 stated that he did not know Sh.Balwant Singh personally and had not spoken to him on telephone except in regard to the present matter. He further stated that the agent could FIR No.372/1992 P.S. G. K.I Page No.6 of 31 have come with the documents but he did not know his name. It was correct that initially quota endorsement on shipping bill Ex.PW1/B1 to Ex.PW1/B4 were valid till 30.9.1992 but this bill was presented on 17.10.1992 having a revalidation upto 30.10.1992.
PW3 Sanjay Bansal, (Superintendent Service Tax Department) deposed that on 19.10.1992, he was posted as Inspector at CFS, Patparganj. In this office, the export and import of goods were cleared. M/s C2 Exports filled a shipping bill no.10513 dated 17.10.1992 for export of readymade garments to France. In terms of the export & import policy, for export of readymade garments from India, quota endorsement were required from AEPC office. There was endorsement on said shipping bill from AEPC office and the same bear rubber stamp impression, signature, registered entry number and the date upto which the quota was valid. The quota endorsement was further revalidated by AEPC. The duty of PW3 was to process the shipping bill. The processing involved all contents of shipping bill and the bill in the present matter was processed by him. Further that his Superintendent Mr. C.B. Bhatia, who was also required to process the aforesaid bill, but had stopped the same and had discussed with him that the signatures of AEPC officer namely Balwant Singh did not appear to be genuine and therefore, PW3 was deputed to visit AEPC office to meet Sh. FIR No.372/1992 P.S. G. K.I Page No.7 of 31 Balwant Singh to verify the signatures. On the same day i.e. 19.10.1992, he visited AEPC office at Jamroodpur, Delhi where he met one person inside the office, who told PW3 that he was Balwant Singh and subsequently saw the shipping bill no.10513 and confirmed that the signatures were genuine. Upon returning, he reported to his Superintendent regarding the same and on next day i.e. on 20.10.1992, he came to know through his Superintendent that the person whom he had met was not Mr. Balwant Singh but someone else. Thereafter, accused P.V. Ghosh was correctly identified by the witness who stated that it was accused P.V. Ghosh who had impersonated himself as Balwant Singh. Lastly that he handed over four copies of shipping bill no. 10513 to the police as per seizure memo Ex.PW3/A. During the crossexamination on behalf of accused Sunil Mehra, PW3 stated that he had dealt with the aforesaid shipping bill on 19.8.1992 and that he had processed the same and thereafter had sent to Sh. C.B. Bhatia for further processing, who used to sit in a separate room. He did not remember the time when the shipping bill was sent to C.B. Bhatia and he did not remember as to what time he was called by Sh.C.B. Bhatia to discuss the matter. Further that he did not make any telephone call to AEPC prior to his visit over there and he went to AEPC office in an auto, but he did not remember the exact time of reaching the same, but it was afternoon. FIR No.372/1992 P.S. G. K.I Page No.8 of 31 Further that AEPC office was about 10 to 12 k.m. from his office and he remained there only for about 5 to 10 minutes. Upon reaching, he was informed by one security guard that Sh. Balwant Singh was sitting on the first floor and when he reached the first floor, he met accused P.V. Ghosh, who was standing near the gallery and asked him for Balwant Singh who inturn answered that he himself was Balwant Singh. Further, he did not remember the time when he reached back to his office and that his office timings were from 10.00 a.m. to 5.00 p.m. After reaching his office, he personally met Sh. C.B. Bhatia in his cabin and told him that he went to AEPC office and met Mr. Balwant Singh. He did not remember the time when he told the same to Mr. C.B. Bhatia. He stayed in his office only for 10 minutes. On 19.10.1992 he left his office at 5.30 p.m. for his house after completing his duty. No register was maintained in his office regarding arrival and departure. Further that he had given one statement to the police and he did not remember if he had signed the same. The statement given by him was of two pages and the same was recorded by one Mr. Virender Singh in his own handwriting. His statement was recorded in the year 1993 in his office. Lastly that he was never taken by the police anywhere for investigation of the present case and was only called at police station once. Further that he did not accompany the police to AEPC office and the police never called him to police station to FIR No.372/1992 P.S. G. K.I Page No.9 of 31 identify the accused persons.
During crossexamination on behalf of accused P.V. Ghosh, PW3 deposed that he could not tell if the distance between AEPC office and his office is more than 16 k.m. And he did not remember if he had made any entry in the visitors' register placed at AEPC office on 19.10.1992. He again said that he might have done the same if it would be mandatory. Further that he had shown his identity card to the security guard for his entry and thereafter he allowed to enter the office. He did not remember if he had gone to the AEPC office. He did not remember if he had gone to the visitors' pass issued from the PRO for entering the AEPC office. Further that when he reached AEPC office, there were several counters in the front, from which he inquired and his identity card was seen by the guard. He did not know whether the pass was mandatory or not. Upon being asked whether he had visited AEPC office on 20.10.1992, the witness sated that yes he had visited the office on 19.10.1992, but he did not remember if he had visited the office on 20.10.1992. Further that when he visited the office next day, he met Sh.Balwant Singh in person and told him that on 19.10.1992, he had met some other person in his office, who claimed to be Balwant Singh. Subsequently, he was taken to the office of senior officers, who were already aware about the present matter and later said that it was their employee FIR No.372/1992 P.S. G. K.I Page No.10 of 31 namely Ghosh who might have been the person who had impersonated Balwant Singh and that on that day, the aforesaid employee was on leave. Upon being asked by the accused if Mr. Balwant Singh had told him to some other day to identify the accused Priyavrat Ghosh who had identified impersonated as Balwant Singh, the witness answered that he did not remember.
PW4 Balwant Singh (Deputy Director AEPC) deposed that at the time of the incident, he was working as Asstt. Director at AEPC, Jamroodpur, Delhi and on 19.10.1992, he met C.B. Bhatia, Superintendent and telephonically informed him that signature on bill no.10513 dated 17.10.1992 appeared to be forged and thereafter PW4 told him to send some person with the said document for verification, but no one came to see him. Accordingly, on 20.10.1992, he again made a call to Mr. C.B. Bhatia and told him that no person had come to meet him for verification of the document, but he was told that one person Mr. Sanjay Bansal, Custom Inspector, with the said document was sent for verification who had get the same verified. Thereafter, PW4 said that he did not meet any person namely Sanjay Bansal. Thereafter, Sh.Sanjay Bansal again came and met him and thereafter shown those documents upon which PW4 said that signatures on bill no.10513 were not his and thereafter he made the report and left. The bill FIR No.372/1992 P.S. G. K.I Page No.11 of 31 no.10513 were Ex.PW1/B1 to Ex.PW1/B4. IO took his specimen signatures and other handwriting and the documents were Ex.PW4/A and Ex.PW4/B. IO recorded his statement.
During the crossexamination, PW4 stated, that he was working in AEPC since 1980 and had joined the aforesaid branch several times and last time he joined the same in the year 1988. He did not remember if he had given any documentary proof or any notification to the IO in the present case during the investigation to the effect that he was duly authorized to sign the shipping rules. Further that he had not brought any documents to prove that he is the signing authority on behalf of AEPC on the shipping bills. He did not remember what was the day on 19.10.1992 when he had received a call from Mr. Bhatia, further that there are about 810 persons who were authorized to sign on behalf of AEPC upon the shipping bills in the same office where he was working and therefore, even if he is on leave, out of the aforesaid person anyone can sign upon the shipping bills. Further he had never met Mr. C. B. Bhatia and he came to know about him only when he received the phone call and even after receiving the phone he never met Sh. C. B. Bhatia. He had received the call at around 12 O clock in the afternoon but he did not verify from any person whether the person who had called him was Mr. C. B. Bhatia or not. Further Mr. Bhatia had never seen him signing. FIR No.372/1992 P.S. G. K.I Page No.12 of 31 He did not remember as to how much time prior to the incident he had given his specimen signatures for sending the same to the custom authority. He did not remember the phone number from which he had received the call on 20.10.1992. He did not remember the time of making the call and Mr. C. B. Bhatia did not tell him the name of the agent who had brought the shipping bills for dispatching the shipment. Generally, the agent or the employee would come to their office on behalf of the exporter to get AEPC quota revalidated upon the shipping bills and it was correct that generally agent or the employees of the exporters deposits the requisite fees in the AEPC office for getting quota revalidated. It was correct that the agent or employee could claim the money deposited by them from the concerned exporters on behalf of the person for whom they had deposited the money. He further deposed that he could not say if the concerned agent or employees of the exporter could cheat the exporters by taking money from the exporter and not depositing the same with the AEPC. He did not remember the amount of fees required to be deposited for revalidation of quota. It was correct that quota could be revalidated by AEPC without any difficulty and without any objection if the requisite charges and proper application is moved for the same. After revalidation of quota and thereafter when the shipment was dispatched by the exporter, the requisite charges which were taken for revalidation were duly FIR No.372/1992 P.S. G. K.I Page No.13 of 31 refunded back to the concerned exporters. The departmental enquiry were conducted in the present matter and that he was a witness to the same and he did not know if the report in respect to the departmental enquiry were submitted to the IO by AEPC department or not. He did not remember the date on which his specimen handwriting was taken by the police official and he did not remember the name of the IO. Lastly, he cannot say if accused Sunil Mehra had duly given money to his agent for revalidation of his quota or that some other persons or his agent might have done the forgery for getting the financial benefit. He could not say if the forgery had been committed upon the shipping bills by accused Sunil Mehra or not or neither can he admit nor denied that accused Sunil Mehra was involved in any conspiracy or any common intention with the co accused to commit forgery on the shipping bills.
During cross examination on behalf of accused Priya Varat Ghosh PW4 deposed that accused Priyavarat Ghose were suspended from the department initially and after a departmental enquiry it was found that aforesaid accused was innocent and was reinstated back in AEPC with all consequential benefits which were with held due to his suspension/.
PW5 Rupak Vashista, (Vice President HR), Dr. Lal Path Lab deposed that at the time of incident he was Dy. Director, personnel and vigilance. On 29.01.1993, some police personnel had come to his office at FIR No.372/1992 P.S. G. K.I Page No.14 of 31 Nehru Place and showed him shipping bill No.10513 dated 17.10.1992 to verify the signature of Sh. Balwant Singh who had worked as Assistant Director in Jamrudpur Branch Office. Further when he saw the signatures of Mr. Balwant Singh and the shipping bill, he realized that the signatures were not of Sh. Balwant Singh and thereafter, the police collected the specimen signatures of Sh. Balwant Singh and some of his handwriting script in the presence of PW5. The documents on which the specimen signatures and handwriting was obtain were Ex. PW4/A and Ex. PW4/B. The shipping bill No. 10513 are already Ex. PW1/B1 to Ex. PW1/B4. IO recorded his statement.
During the crossexamination, PW5 stated, that he did not remember if IO had recorded his statement and there were 34 police personals who had come to him at around 04:00 p.m. but he did not remember the names of the police personals who visited him. Balwant Singh was already called in his office as they had the prior information that police officials were coming to his office for collecting the documents. He did not remember as to how many pages, on which specimen signatures of Balwant Singh were obtained by the police officials. In all there were 56 persons including 34 police personals in his chamber when the specimen signatures of Balwant Singh were obtained.
PW6 Inspector Sunil Kumar, deposed that on 01.11.1995, he FIR No.372/1992 P.S. G. K.I Page No.15 of 31 was posted at PS G.K.1 and on that day the investigation of the case was marked to him and during investigation he had arrested the accused person and conducted their personal search vide memo Ex. PW6/A and Ex. PW6/B in respect of accused Sunil Mehra and Priyavarat Ghosh. Thereafter, he recorded the disclosure statement of the accused vide Ex. PW6/C and PW6/D. He recorded the statement of witnesses and sent the questioned documents and sample handwriting of signature of the accused persons to CFSL for examination and later collected the report / result. Both accused were correctly identified by the witness.
During the crossexamination of PW6, on behalf of accused Priya Varat Ghosh he stated that he had arrested the accused persons on the basis of sufficient evidence available in the complaint and he had arrested the accused Priya Varat Ghosh on 26.10.1995.
During the crossexamination of PW6 on behalf of accused Sunil Mehra witness deposed that he recorded the statement of both accused on different dates at PS G.K.1, but he did not remember the date or time of the same. He did not remember in whose presence the aforesaid statement were recorded and that he had not got conducted the judicial TIP of both the accused and that he did not remember the dates on which he had recorded the statement of witnesses. Further he had sent the questioned documents to FIR No.372/1992 P.S. G. K.I Page No.16 of 31 FSL with the permission of the Court, but he did not remember the date of obtaining such permission.
PW7 Ashok Kumar deposed, that in the year 1992, he was working in the company namely "Bird Cargo Pvt. Ltd." having its office at Shahpur Jat and that Kanwaljeet Singh was one of the Directors in the said Company. The nature of business of the Company was to get the custom clearance done of various export companies. Accused Sunil Mehra was having its Company namely "M/s C2, Exports" which was carrying the business of exports. In the month of October November 1992. The accused Sunil Mehra had got the custom clearance done for his company through the company of PW7 of the Cargoes which was lying at ICD Padparganj in return of the transaction which took place during that period they had given the shipping bills to the said Company. The invoice of the shipping bills given by accused Sunil Mehra being the Director of said Company were forwarded to the customs office for clearance and during the process the office of the customs found that the shipping bill and invoices were forged including the quota provided by the exports counsels, Zamrud Pur which were to be obtained by the export Companies, which was mandatory requirement.
(Opportunity to cross examine the witness was granted to accused Priyavarat Ghosh but he did not question anything to PW7). FIR No.372/1992 P.S. G. K.I Page No.17 of 31
During the crossexamination, on behalf of accused Sunil Mehra stated PW7 deposed, that whatever he had deposed was according to his memory and that he had read his statement in the Court, but he did not remember the invoice number and shipping bill number pertaining to which he had deposed about forgery due to lapse of time. He did not remember the amount of shipping bill. The agreements were being exported which included Trouser etc. but he did not remember the quantity of the same. Further that IO of this case never investigated from him about the present case and no statement was recorded by police officials. The custom officials had told him that the invoice of the shipping bill submitted by accused of clearance were forged and further that he was told by the custom people that the quota upon the shipping bill was forged and there were no such forgery of the said document.
PW8 Virender Kumar, (ACP Preet Vihar) deposed that on 08.11.1992, the present complaint Ex. PW1/A was marked to him and he endorsed the same vide Ex. PW8/A and got the FIR registered. Thereafter, he obtained the photocopy of the control entry register for quota countries in respect of France from AEPC and seized the same vide seizure memo Ex. PW8/B. Thereafter, he obtained shipping bill from the inspector, custom, CFS, Patparganj and seized the same vide Ex. PW3/A. Thereafter, he also FIR No.372/1992 P.S. G. K.I Page No.18 of 31 obtained the specimen signature and handwriting of Sh. Balwant Singh, Assistant Director AEPC vide Ex. PW4/A and Ex. PW4/B as he had alleged that signature and handwriting had been forged. Thereafter, he was transferred.
During the crossexamination on behalf of accused Priya Varat Ghosh, PW8 stated that complaint was made by B.G. Takar, Director AEPC, but he did not remember whom he had interrogated in the office of AEPC, as to whether the accused P.V. Ghosh was present in the office on the day when the signatures had been alleged to be forged on the shipping bill. He did not remember the name of other persons whom he had met in the AEPC office on the first day of investigation except complainant B.G. Takar. He did not remember if he had recorded any statement during investigation, which reflected the presence of accused at the time of commission of offence of forgery in the present matter. He did not remember if he had checked the attendance register in the AEPC office pertaining to the presence of accused P.V. Ghosh during investigation and that he had not seized attendance register to prove the same against accused P.V. Ghosh on the day of alleged forgery. Further he had maintained the case diary during the investigation and he had not sent the obtained specimen signature and handwriting of Balwant Singh to FSL and that he did not know who had sent the same after handing FIR No.372/1992 P.S. G. K.I Page No.19 of 31 over the file.
During cross examination on behalf of accused Sunil Mehra, PW8 deposed that complaint Ex. PW1/A was not given to him directly and the same was marked to him by the SHO on 08.11.1992. He got the FIR registered on 24.11.1992 and during the period between 08.11.1992 to 24.11.1992 he had made enquries regarding the procedure of AEPC but there was no enquiry report in respect to same placed by him on record. Further he had met the complainant during the inquiry but he did not remember the date of the same and he was told by the complainant regarding personal knowledge of the contents of the complaint. He did not remember if any original document was annexed with Ex. PW1/A and he did not remember the place where he had obtained the aforesaid specimen signature/handwriting of Balwant Singh and in the presence of which witnesses.
PW9 SI Harish Chandra deposed that on 04.08.1993, he was entrusted with the investigation and he made efforts to search the accused persons but could not find them and was subsequently transferred.
PW10 Inspector Ran Singh deposed that on 20.07.1994 he received the investigation of the present matter and made efforts to trace accused Sunil Mehra but could not trace him and was subsequently FIR No.372/1992 P.S. G. K.I Page No.20 of 31 transferred.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. Accused Priya Varat Ghosh examined himself as a witness in his defence under Section 315 Cr.P.C.
DW1 Priya Varat Ghosh (Accused) deposed that he was a union leader and has been falsely implicated in the present matter since he had raised voice against corruption in the organization. On 19.10.1992 i.e. the alleged date of incident he was not present in the office as his younger son aged two years was suffering from tuberculosis and was admitted to the hospital. On the same charges he was suspended and after obtaining clean chit was reinstated with all the consequential benefits on 08.07.1999. Copy of order 08.07.1999 in respect to same was Ex. DW1/A. The medical documents pertaining to the illness of the son of accused from period 16.10.1992 to 30.10.1992 were Ex. DW1/B, as DW1 was attending him in the office. Further he was falsely implicated and this was to pressurize him and present case was filed against him.
FIR No.372/1992 P.S. G. K.I Page No.21 of 31
During cross examination by Ld APP for State, DW1 stated that it was correct that disciplinary proceedings which were initiated against him on the complaint of witnesses were dropped since they did not attend the hearing. Further it was correct the during the period 16.10.1992 to 30.10.1992, there is no documentary evidence to prove his presence at the hospital.
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 419 IPC:
Punishment for cheating by personation--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.
As per Section 420 IPC :
Cheating and dishonestly inducing delivery of property-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and FIR No.372/1992 P.S. G. K.I Page No.22 of 31 shall also be liable to fine.
As per Section 467 IPC:
Forgery of valuable security, will, etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principle, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
As per Section 468 IPC:
Forgery for purpose of cheating--Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to even years, and shall also be liable to fine.
FIR No.372/1992 P.S. G. K.I Page No.23 of 31 As per Section 471 IPC:
Using as genuine a forged document--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record forged] which he knows or has reason to believe to be a forged [document or electronic record forged], shall be punished in the same manner as if he had forged such [document or electronic record forged] As per Section 511 IPC:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment - Whoever attempts to commit an offence punishable by the Code with imprisonment for life of imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may be, onehalf of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
As per Section 120 B IPC :
Punishment of criminal conspiracy.(1) Whoever is a party to a FIR No.372/1992 P.S. G. K.I Page No.24 of 31 criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this case for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
8. Learned APP for the State had argued that all the prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed that accused persons in connivance with each other had impersonated Sh. Balwant Rai and had committed the alleged offence and therefore, are liable to be punished.
9. On the other hand, Sh. Sandeep Goyal, Ld. Counsel for both the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses in their crossexamination has deposed contrary to each other. It is argued on behalf of both the accused that accused persons have been falsely implicated in the present matter as the delay in arrest of FIR No.372/1992 P.S. G. K.I Page No.25 of 31 accused persons have not been explained by the prosecution and infact both the accused were arrested after three years of the registration of FIR. He has further argued that the prosecution did not examine the Duty Officer, who registered the FIR and also the handwriting/FSL Expert. Further, even, if the FSL Report is taken into account, the alleged signatures do not match with the specimen signature of the accused persons. He has further argued that the TIP of the accused was never conducted and the statements of witnesses recorded u/s 161 Cr.PC are also recorded after three to four months of the incident and there are glaring contradictions between the deposition of various witnesses examined by the prosecution and therefore, both the accused persons are liable to be acquitted. Ld. Counsel for the accused persons has placed reliance on various judgments i.e. "Kaliram Vs. State, 1974 Crl. J - I(SC), Mohd. Abdul Vs. State , 1983 Crl.J, 689 (SC) etc.
10. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record.
11. In the present matter prosecution had cited as many as thirteen FIR No.372/1992 P.S. G. K.I Page No.26 of 31 witnesses and during trial had examined only ten witnesses, among which the witness who prepared the FSL report and the duty officer could not be called in the witness box. Prosecution was primarily required to prove that the accused while impersonating himself as Balwant Singh, had attempted or cheated the complainant or the officials of customs department and caused wrongful loss having wrongful intention by using documents and having the criminal intention to commit the offence in connivance with each other and both the accused did so having common intention. However, it is most glaring to see that, in the present matter despite the fact, that basis of the present matter started with criminal intent of impersonation, the prosecution failed to show as to how the identity of the accused was established as IO did not even get the TIP of the accused conducted as per law. Further, in the present matter complainant i.e. PW1 and PW4 are two most star witnesses of the prosecution on whose testimony, the present complaint was initiated. But PW1, at the time of deposing in the witness box, did not even substantiate the details of his complaint and the very fact shows that the complaint was filed in a extremely mechanical manner, as during his cross examination PW1, has categorically stated that he was not having any personal knowledge about the contents of the complaint and that he was not even aware if the signatures in question were of PW4. Further, PW2 who had stated before the Court that FIR No.372/1992 P.S. G. K.I Page No.27 of 31 while he was working as superintendent at customs and was checking the shipping bills it appeared to him that the shipping bill did not have the signatures of Balwant Singh, i.e., PW4, and that is when on suspicion about the genuineness of the signatures, he called up to verify the same from PW4. However, PW4 during his cross examination has very clearly stated that PW2 Sh. C.B. Bhatia, had never seen him signing and that he has never met him prior to the incident or after the incident and has only sent him specimen signatures to the custom authority. Therefore the testimony of PW2 cannot be believed. Further PW3 being the officer of customs was directed to verify the signatures of Balwant Singh (PW4) also stated that when he visited AEPC office he had met one person namely Balwant Singh, but nowhere during investigation, IO had stated the fact as to how PW3, subsequently believing the version of PW1, came to the conclusion that he had not met Sh. Balwant Singh in the office of AEPC and had met accused Priya Varat Ghosh. Furthermore, if we peruse the statement of PW4, there are glaring contradictions in the testimony of PW4 and other witnesses and he has also admitted during his cross examination that, accused Priya Varat Ghosh during departmental proceedings initiated against him, in respect to present matter, was declared innocent and was also reinstated with all consequential benefits and also during his cross examination had stated that he was not FIR No.372/1992 P.S. G. K.I Page No.28 of 31 aware about the role of accused Sunil Mehra and therefore, any criminal conspiracy or common intention could not be proved by the prosecution. Lastly, all the police officials including the IO had stated during their deposition before the Court that accused persons were arrested after three years of the registration of FIR as they were not available, which is also quite difficult to believe since accused Priya Varat Ghosh was already facing Departmental Enquiry in his office during that time and therefore the version of the prosecution that initially the accused person were not arrested due to their nonavailability does not hold water. Lastly, it is further evident to mention that despite the fact, that the complaint was registered on 08.11.1992 the FIR in the present matter was only registered on 24.11.1992 and the delay of the period remains unexplained. Therefore, I am of the considered view that prosecution has miserably failed to prove the guilt of the accused persons beyond reasonable doubt.
12 The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as FIR No.372/1992 P.S. G. K.I Page No.29 of 31 under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
13. In view of above discussion, both the accused persons stands acquitted of the offences punishable U/s 419/420/467/468/471/511/120B IPC.
Pronounced in open court (SHEETAL CHAUDHARY PRADHAN)
on 29.10.2015 MM10 (SouthEast): Saket Courts:
New Delhi:29.10.2015
FIR No.372/1992
P.S. G. K.I Page No.30 of 31
FIR No. 372/1992
U/s 419/420/467/468/471/511/120 IPC
P. S. G.K.1
State Vs. P.V. Ghosh & Ors.
31.10.2015
Present: Learned APP for the State.
Both accused along with Counsel Sandeep Goyal.
Today the matter is fixed for furnishing bail bond under Section 437A Cr.P.C Bail bonds furnished, considered and accepted for the period of 06 months.
File be considered to Record Room after due compliance.
(SHEETAL CHAUDHARY PRADHAN) MM10(SouthEast):Saket Courts:31.10.2015 FIR No.372/1992 P.S. G. K.I Page No.31 of 31