CRR No.1039 of 2008 (O & M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CRR No.1039 of 2008 (O & M) Date of decision : 20.9.2011 Surinder Kapoor ........Petitioner Vs. State of Punjab and others ......Respondents CORAM : HON'BLE MR. JUSTICE AJAI LAMBA Present:- Ms. Kanika Sharma, Advocate, for Mr.J.S.Bedi, Advocate, for the petitioner Mr.Manoj Bajaj, Addl.AG, Punjab Mr. Vishal Aggarwal, Advocate, for respondents No.2 & 3 --- AJAI LAMBA, J (Oral) This criminal revision is directed against judgment rendered by lower Appellate Court dated 15.12.2007 vide which the private respondents have been acquitted and judgment rendered by the trial Magistrate convicting the private respondents dated 2.6.2006 has been reversed. When the matter was heard on 29.8.2011, the following order was passed by this Court :- “Reasons for acquittal of the respondents have been given in Para 25 of the impugned judgment (running page 31). A possible view has been taken by the lower Appellate Court and prima facie, no impropriety therein can be traced. Learned counsel for the petitioner-complainant, however, states that the stand of the accused under Section 313 of the Criminal Procedure Code, 1973 would require a judgment of conviction. Learned counsel prays for time to show that conviction can be recorded only on the basis of statement under Section 313 of the Criminal Procedure Code, 1973. Adjourned to 20.9.2011.” CRR No.1039 of 2008 (O & M) -2- Gist of the allegations against the private respondents as set up by the prosecution is that the private respondents were tried for commission of offence under Sections 420 and 120-B of the Indian Penal Code. As per the allegations, one month before filing of the complaint, Ashwani Kumar- respondent/accused accompanied by Pawan Kumar Mittal, also respondent/ accused, and his maternal uncle approached the complainant for grant of loan and secured a sum of ` 1.50 lakhs. A post dated cheque was issued, payable after a month. The said cheque was taken out of the pocket by accused Pawan Kumar who delivered the same to accused Ashwani Kumar who, after appending his signature thereon, delivered it to the complainant. When the complainant presented the cheque in question for encashment, it was dishonoured with the information that the account at which the cheque has been drawn belongs to some other person namely Sushil Kumar. Counsel for the petitioner-complainant contends that conviction can be recorded on the basis of statement given by the accused/private respondents under Section 313 of the Criminal Procedure Code, 1973. The respondent confessed the commission of offence and therefore, conviction should have been recorded. Learned counsel for the respondent has argued that the statement under Section 313 of the Criminal Procedure Code, 1973 cannot be read in part. I can only be read as a whole. Relevant portion of the judgment in that context of argument is contained in paras No. 5 to 7 :- “5. The incriminating evidence which, has come on record, was put to both the accused in their statements recorded under Section 313 of the Criminal Procedure Code, 1973 by the lower Court wherein they denied, all the allegations, made against them and pleaded false implication. The accused Ashwani Kumar has taken the CRR No.1039 of 2008 (O & M) -3- following plea, in his defence :- 6. I am innocent, I have been falsely implicated in this case by the complainant, in connivance with his friends, Sushil Kumar and Suresh Kumar, prosecution witnesses. In the year 1998, Surinder Kapoor with whom, I was working, as a broker, had got my signatures on blank stamp papers, a cheque and some other blank papers, on the plea that was to get loan from the bank, claiming that it is just a formality. In good faith, I signed those documents. Papers which were blank at that time but later on those stamp and blank papers, were misused by Surinder Kapoor and when I came to know, I filed civil suit, for declaration in the Court of Civil Judge, Ludhiana on 11.5.1999, against complainant and Sushil Kumar and one Mukesh, who had fabricated an agreement to sell. On those stamp papers, the civil Court granted stay order and in compliance, I sent the order of stay etc. to the complainant, by registered post and to that effect I filed an affidavit on 13.5.1999. After coming to know about my filing of civil suit and grain of stay order, Surinder Kapoor contacted my maternal uncle Pawan Kumar, in order to pressurize me to withdraw civil suit, filed by me on 11.5.1999 but when the complainant was unable to impress up Pawan Kumar, in order to take the revenge, he filed a false complaint before SSP, Ludhiana after 17.5.1999 and me and my maternal uncle Pawan Kumar. I have never received any amount of ` 1,50,000/-from the complainant. PW-2 Sushil Kumar, in whose name the alleged cheque was issued by the bank, has dishonestly helped the complainant in filing the false complaint against me. It is a false case. 7. The accused Pawan Kumar has taken pleas in his defence, which runs as follows : I am innocent. I have been falsely implicated in the present case, I have no business dealing with complainant before or after filing of CRR No.1039 of 2008 (O & M) -4- the above case. My sister's son Ashwani Kumar has filed a civil suit for declaration against the complainant in the civil Court, Ludhiana 11.5.1999. After ¾ days of filing the above civil suit, Surinder Kapoor-complainant approached me to press upon Ashwani Kumar to withdraw above suit but I told him that I have no say in the matter. In annoyance the complainant filed a false complaint against me and Ashwani Kumar before SSP, Ludhiana. I have never participated in any transaction between Ashwani Kumar and the complainant. I am income tax assessee, from the last many years, showing sufficient income from my business, from the last ten years. I have only been implicated in this case as I have not helped the complainant in effecting compromise between him and Ashwani Kumar who had been working with him as broker in the year 1998-99.” After prosecution evidence was concluded, the incriminating material was put to the accused. In the statement under Section 313 of the Criminal Procedure Code, 1973, following has been said by Ashwani Kumar- accused :- “6. I am innocent, I have been falsely implicated in this case by the complainant, in connivance with his friends, Sushil Kumar and Suresh Kumar, prosecution witnesses. In the year 1998, Surinder Kapoor with whom, I was working, as a broker, had got my signatures on blank stamp papers, a cheque and some other blank papers, on the plea that was to get loan from the bank, claiming that it is just a formality. In good faith, I signed those documents. Papers which were blank at that time but later on those stamp and blank papers, were misused by Surinder Kapoor and when I came to know, I filed civil suit, for declaration in the Court of Civil Judge, Ludhiana on 11.5.1999, against complainant and Sushil Kumar and CRR No.1039 of 2008 (O & M) -5- one Mukesh, who had fabricated an agreement to sell. On those stamp papers, the civil Court granted stay order and in compliance, I sent the order of stay etc. to the complainant, by registered post and to that effect I filed an affidavit on 13.5.1999. After coming to know about my filing of civil suit and grain of stay order, Surinder Kapoor contacted my maternal uncle Pawan Kumar, in order to pressurize me to withdraw civil suit, filed by me on 11.5.1999 but when the complainant was unable to impress up Pawan Kumar, in order to take the revenge, he filed a false complaint before SSP, Ludhiana after 17.5.1999 and me and my maternal uncle Pawan Kumar. I have never received any amount of ` 1,50,000/-from the complainant. PW-2 Sushil Kumar, in whose name the alleged cheque was issued by the bank, has dishonestly helped the complainant in filing the false complaint against me. It is a false case. (emphasis supplied). The case sought to be developed on behalf of the petitioner is that the portion on which emphasis has been supplied indicates that accused Ashwani Kumar admits that he affixed his signature on the cheque and therefore, it is a confession given by Ashwani Kumar. Accordingly, conviction should be recorded. Learned counsel for the petitioner has not made reference to any case law. Learned counsel for the private respondents has relied on the judgment of the Hon'ble Supreme Court in the case of “Narain Singh v. The State of Punjab, 1964 (1) Criminal Law Journal 730' in which following has been held :- “Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the CRR No.1039 of 2008 (O & M) -6- witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution, to ascertain from the accused his version or explanation, if any of the incident which forms the subject matter of the charge and his defence. By sub-section (3) the answers given by the accused may “be taken into consideration” at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation. Criminal Appeal No.354 of 1959 D/- 8.9.1959 (Punjab), reversed.” Learned counsel has also relied on the judgment of the Hon'ble Supreme Court in the case “Ranvir Yadav v. State of Bihar, 2009 (6) SCC 595' wherein the following has been held :- “5. The object of examination under this Section is to give the accused an opportunity to explain the case made CRR No.1039 of 2008 (O & M) -7- against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 6. The word 'generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.” I have considered the contention of learned counsel for the parties in context of the statement given by accused Ashwani Kumar under Section 313 of the Criminal Procedure Code, 1973. All that has been done by accused Ashwani Kumar is that he has tried to explain the circumstance under which the signatures were affixed. Ashwani Kumar has clearly stated that he is innocent and has been falsely CRR No.1039 of 2008 (O & M) -8- implicated by the complainant in connivance with his friend Sushil Kumar and Suresh Kumar, prosecution witnesses. It has been stated that his signatures were taken on blank papers and on a cheque, on the plea that loan from the bank is to be taken. In good faith, the papers and the cheque were signed. Learned counsel appearing for the petitioner wants to use the portion of the statement wherein the accused has said that “he signed the cheque and the papers” to be that it is a confession given by the accused. In terms of law as laid down by Hon'ble Supreme Court in the two judgments noticed above, the said portion cannot be termed as a confession. Portion of the statement given under Section 313 of the Criminal Procedure Code, 1973 cannot be read in isolation so as to convict the accused. The judgments relied upon by the respondent make it clear that statement of accused, while explaining his version of the story under Section 313 of the Criminal Procedure Code, 1973, has to be seen as a composite plea. Statement of a fact while giving justification does not amount to confession of guilt. Considering the statement as a whole it transpires that the circumstances have been explained by the accused while saying that he is innocent. The accused has simply explained his conduct, pleading that he has committed no offence. Taking the statement in its entirety, it cannot possibly be concluded that it is a confessional statement. In view of above, no ground for interference is made out. The criminal revision is dismissed. (AJAI LAMBA) JUDGE 20.9.2011 akm 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes