IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI FIR No. 103[SECTION]/96 P.S. Defence Colony U/s [SECTION]/[SECTION] [ACT] STATE VS. RISHI BABUTA JUDGMENT :
a. Sl. No. of the case : 187/2 b. Date of Institution : 01.12.1999 c. Date of Commission of Offence : 2[SECTION].11.1996 d. Name of the complainant : Sh. [ENTITY] Assistant Branch Manager, Bajaj Capital Investment Centre, B. O. 19 DDA Complex [ENTITY], New Delhi. e. Name of the accused and his : [ENTITY] parentage and address S/o [ENTITY] R/o 112B, DDA LIG Flats Maya Puri, New Delhi. f. Offence complained of : U/s [SECTION]/[SECTION] [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 27.09.2013 i. Final Order : Acquitted j. Date of such order : 27.09.2013 FIR NO. 103[SECTION]/96 PAGE 1 OF PAGE 11 PS DEFENCE COLONY
1. The accused person in this case was sent up for trial for the commission of offence U/s [SECTION]/[SECTION] [ACT].
2. The facts in brief are that on 2[SECTION].11.1996, at 19, DDA Market, [ENTITY] at Bajaj Capital Investment Centre, accused has misappropriated the cheque book of Bank of Indian bearing account no. 900884 belonging to [ENTITY] and further signed the cheques bearing no. 200644 for a sum of Rs.20,000/ and 200640 for a sum of Rs. 30,000/ belonging to the complainant [ENTITY], by representing himself as [ENTITY] and attempted to cheat the complainant by using false documents to induce the complainant to deliver the commission on the fixed deposits. On the complaint of complainant FIR was lodged. During the investigation, statements of witnesses were recorded. Accused arrested and after completing other formal investigation the challan was presented before the court for trial U/s [SECTION]/[SECTION] [ACT] against the accused.
3. A prima facie offence having been made out against the accused, charge was framed against him on 01.08.2002, U/s [SECTION]/[SECTION] [ACT] to which he pleaded not guilty and claimed trial.
4. To prove its case the prosecution has examined five witnesses. [ENTITY] was examined as PW1, [ENTITY] was examined as PW2, [ENTITY] Sr. Scientific Officer was examined as PW3, Ct. Brij FIR NO. 103[SECTION]/96 PAGE 2 OF PAGE 11 PS DEFENCE [ENTITY] was examined PW4 and Ct. [ENTITY] was examined as PW[SECTION].
[SECTION]. PW1 [ENTITY] testifies that on 2[SECTION].11.96 on receiving of DD no. 13 he went to [ENTITY], Bajaj Capital Investment Centre Ltd. where Asstt. Manager [ENTITY] met them and handed over two cheques and form to IO and also handed over one complaint and got the case registered through Ct. [ENTITY]. Both the cheques and form were taken into possession vide memo Ex.PW1/A. Accused was arrested and his personal search was conducted vide memo Ex.PW1/B. Rs.6,000/ was recovered from the accused. The disclosure statement of accused is Ex.PW1/C. The accused was brought to PP G. M. Park. The case property i.e. cheques Ex.P1 and Ex. P2 and application forms are Ex.P3 and Ex.P4.
Ld. Counsel for accused failed to crossexamine the witness PW1 despite giving opportunity.
6. PW2 [ENTITY] testifies that on 2[SECTION].11.96 he was posted as DO at PS Defence Colony. He received rukka from Ct. [ENTITY] sent by ASI [ENTITY] and on the basis of the same he recorded FIR. Copy of the same is Ex.PW2/A and the endorsement on rukka is Ex.PW2/B. Ld. Counsel for accused failed to crossexamine the witness PW1 despite giving opportunity.
7. PW3 [ENTITY] testifies that the document of this case was FIR NO. 103[SECTION]/96 PAGE 3 OF PAGE 11 PS DEFENCE COLONY received in his division on 23.04.98. He examined and compared the questioned documents with the standard writings. His report is Ex.PW3/A. He stated that the person who wrote red enclosed writings stamped and marked as S1 to S3[SECTION] also wrote the red enclosed signatures similarly, stamped and marked Q1, Q1/1, Q2, Q2/1, Q2/2, Q3, Q3/1, Q4 and Q4/1. He testifies that it was not possible to express any definite opinion on Q2/3. He stated that the opinion no. 1 has been expressed in his detailed report Ex.PW3/A. Ld. Counsel for accused failed to crossexamine the witness PW1 despite giving opportunity.
8. PW3 Ct. [ENTITY] stated that he joined the investigation of this case with IO. IO obtained one day PC of the accused. He stated that on the pointing out of the accused the cheque book of Bank of India Connaught Place Delhi containing blank cheques were seized by the IO vide memo Ex.PW4/A. He stated that the cheque book was in the name of Mr. [ENTITY] of of account no. 900884. He stated that accused also pointed out the spot of shop no. B[SECTION] Tagore Gardent and accused also pointed out Bahadurshah Zaffar Marg from where he obtained the commission vide memo Ex.PW4/B. IO recorded his statement. The cheque book is Ex.PW4/C containing four blank cheques and one requisition slip.
Ld. Counsel for accused failed to crossexamine the witness PW1 despite giving opportunity.
FIR NO. 103[SECTION]/96 PAGE 4 OF PAGE 11 PS DEFENCE COLONY
9. PW[SECTION] Ct. [ENTITY] testifies that on 2[SECTION].11.96, on receipt of DD no. 13B he along with IO [ENTITY] and [ENTITY] went to the spot at Bajaj Capital Investment Company, DDA Market, [ENTITY], where complainant [ENTITY] handed over two cheques and two forms to the IO. He stated that IO recorded the statement of complainant and prepared the rukka. He went to PS and got registered the FIR. After getting the FIR registered he handed over the copy of FIR and original rukka. The personal search of the accused was conducted vide memo Ex.PW1/A. The disclosure statement of the accused is Ex.PW1/C. IO recorded his statement.
Ld. Counsel for accused failed to crossexamine the witness PW1 despite giving opportunity.
10. After closing of prosecution evidence, statements of accused [ENTITY] was recorded U/[SECTION]/[SECTION] [ACT] In his statement, accused [ENTITY] has denied to have committed the offence and claimed to have been falsely implicated in this case. However, he did not lead any evidence in his defence.
11. I have heard the submissions of Ld. Counsel for the accused as well as Ld. APP for the [ENTITY] and also gone through the record.
12. In the present case, the accused has faced charges of impersonation, forgery and cheating. But the evidence led to prove these charges does not appear to be much convincing. In the first place, none of the FIR NO. 103[SECTION]/96 PAGE [SECTION] OF PAGE 11 PS DEFENCE COLONY persons affected by the offence has been examined. In fact, the persons to whom the cheques in question belonged have not been even cited as witnesses, much less examining them in the court. As per the prosecution case, the forged cheques belonged to [ENTITY] but he had not been even interrogated during the investigation. The evidence of [ENTITY], the account holder was of material nature and his nonexamination adversely affects the veracity of the case.
13. The case against the accused was initiated following the complaint lodged by one [ENTITY] who was working as Assistant Branch Manager in M/s Bajaj Capital Investment where the accused allegedly tried to deposit the forged cheques to obtain commission. The accused was apprehended by him along with other staff members when the former was in the process of depositing the cheques. Other staff members have not been made witnesses in the case, though their evidence would have been of immense importance. In the absence of the evidence of other staff members, the statement of [ENTITY] assumes great importance. But even he has not been examined by the prosecution. He remained untraceable and no process could be served upon him. The IO does not appear to have secured any bond in terms of [SECTION] [ACT] from him to secure his appearance in the court.
14. Under the circumstances, the prosecution case is left to be hinged upon the remaining witnesses who have been examined by the FIR NO. 103[SECTION]/96 PAGE 6 OF PAGE 11 PS DEFENCE COLONY prosecution. But evidence coming from their mouth is far too insufficient to bring home the charge. PW1 and PW4 have identified the accused as the one handed over by [ENTITY] to the IO. PW1 has testified that the cheques Ex. P1 and P2 and application forms Ex. P3 and P4 were also handed over to the IO by [ENTITY]. There is no direct evidence that those cheques and forms were recovered from the possession of accused or he was trying to utilize them to get the commission. PW4 has deposed about the recovery of cheque book Ex. PW4/C at the instance of accused and seizure thereof by memo Ex. PW4/A. The said cheque book has been identified by him in the court as Ex. PW4/C. But there is not evidence if the said cheque book was ever put under the seal. The cheque book has been produced in the court unsealed. The seizure memo Ex. PW4/A does not contain the details of the number of the blank cheques and requisition slips which have found mention in the testimony of PW4. As such, the recovery itself is not much reliable. During the personal search of accused, as per prosecution, Rs. 6000/ in cash were recovered which are alleged to be the commission received by accused. But no evidence to establish that the money was paid as commission to accused has come on record. No documentary or oral evidence has been produced in this respect.
1[SECTION]. Besides, there are certain facts which have been left unexplained by the prosecution. PW4 has testified that the cheque book Ex. PW4/C was in the name of one Mr. [ENTITY] having account number 900884. As FIR NO. 103[SECTION]/96 PAGE 7 OF PAGE 11 PS DEFENCE COLONY per FIR, the said cheque book was issued by Bank of India, Connaught Place. These facts have been totally ignored by the IO in the investigation. No statement of the person namely [ENTITY] has been recorded by the police during investigation. Nor has he been brought before the court as a witness to corroborate the prosecution version. The police did not even check on the concerned bank to find out the truth. These material facts have remained totally unproven.
16. The only evidence which supports the prosecution case is the expert evidence rendered by PW2. According to his report Ex. PW3/A, the cheques Ex. P1 and P2 appears to have been written by the accused. But then an expert opinion, in itself, has never been considered as conclusive evidence to record conviction. Report of a handwriting expert cannot form a sole basis for holding the accused guilty. The position in law is well settled with profusion of case laws. It was held by the Supreme Court in Ram Chandra v. [ENTITY] of U.P(AIR 19[SECTION]7 SC
381) that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction but it may be relied upon when supported by other items of internal and external evidence. The Apex Court again pointed out in [PRECEDENT] that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC [SECTION]29) where it was held that expert evidence as to handwriting being opinion evidence can rarely, if every take the place of substantive FIR NO. 103[SECTION]/96 PAGE 8 OF PAGE 11 PS DEFENCE COLONY evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.
17. The Supreme Court again had occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. [ENTITY] of M.P. (AIR 1967 SC 1326) observing that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. The similar observations have been made in Magan Bihari Lal v. [ENTITY] of Punjab (1977(2)SCC 210), Murarilal v. [ENTITY] of M.P 1980 A.I.R (SC) [SECTION]31 and recently in Alamgir v. [ENTITY] (NCT, Delhi)2003 SCC (Cri) 16[SECTION] and Musheer Khan v. [ENTITY] of Madhya Pradesh (2010)2 SCC 748.
18. The evidence of handwriting is also hit by another glitch. The specimen handwriting of the accused was taken by the police on 03.04.1998 and it was taken without the permission of any competent Magistrate. Currently [SECTION] of [ACT] enables a Magistrate to direct any person to give his specimen signatures or handwriting for the purpose of investigation. But this provision was introduced in the code by the [ACT](Amendment) Act, 200[SECTION] and notified on 21.06.2006 and previously there was no such provision of law to empower the FIR NO. 103[SECTION]/96 PAGE 9 OF PAGE 11 PS DEFENCE COLONY police or Magistrate to order the accused to provide specimen signatures or handwriting. In [ENTITY] of UP v. Ram Babu Mishra AIR 1980 791, the Supreme Court had the occasion to deal with the issue. It was held that magistrate is empowered to direct the accused to give his specimen signatures or handwriting in terms of [SECTION] of the [ACT] during the trial but not during the investigation. During investigation, provision contained in [SECTION] and [SECTION] of [ACT] are applicable which entitle the investigating agency to secure photographs and measurements including thumb and foot print impressions of accused, but signatures and handwriting are excluded from their operation. The said decision was followed by the Andhra Pradesh High Court in Bojja Krishna Reddy v. [ENTITY] of A.P, 2003(1) R.C.R.(Criminal) 844 and position was summed up; Firstly, the Magistrate cannot direct an accused person to provide specimen signature or handwriting during investigation. Secondly, the Magistrate has got jurisdiction to direct the accused to furnish the specimen signature or handwriting for the purpose of comparison after the court is seized of the matter. Thirdly, the investigating officer has every right to invoke the jurisdiction of the Magistrate to compel a person to give measurements, namely, thumb impressions, foot impressions and photographs by virtue of powers vested under [SECTION] of the [ACT]. Thus, it can be safely held that the police in this case was not empowered to obtain the specimen signatures and handwriting of the accused persons and the act was clearly in violation of prevailing provisions of law and as such not FIR NO. 103[SECTION]/96 PAGE 10 OF PAGE 11 PS DEFENCE COLONY admissible in evidence.
19. In view of the reasons above mentioned, the prosecution has brought on record no clinching evidence which proves beyond a reasonable doubt the guilt of the accused person and he is given the benefit of doubt and therefore accused [ENTITY] is acquitted for the offence punishable U/s.[SECTION]/[SECTION] [ACT] for which he stands charged.
Announced in the Open Court ([ENTITY]) On 27.09.2013 Metropolitan Magistrate South East/New Delhi FIR NO. 103[SECTION]/96 PAGE 11 OF PAGE 11 PS DEFENCE COLONY P.S. Defence Colony U/s [SECTION]/[SECTION] [ACT] 27.09.2013 Present: Ld. APP for the [ENTITY]. Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s [SECTION]/[SECTION] [ACT] for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per [SECTION] of the [ACT], as amended vide the [ACT], which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
Documents, if any, be returned to the concerned persons after cancellation of endorsements.
File be consigned to Record Room.
([ENTITY]) MM/South East/27.09.2013 FIR NO. 103[SECTION]/96 PAGE 12 OF PAGE 11 PS DEFENCE COLONY