1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 90 of 2002. Reserved on : 27-11-1998. Date of Decision:15.12.2008. ____________________________________________________________ Vijay Kumar. Petitioner. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the petitioner : Mr. Sunil Mohan Goel, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer Surinder Singh, J This Criminal revision petition has been directed by the convict feeling aggrieved and dis-satisfied by the judgment passed by learned Sessions Judge in Criminal appeal No. 2 of 2002 dated 1.4.2002 whereby the conviction and sentence passed by learned trial Court against him under Section 468 of the Indian Penal Code was up-held. The petitioner herein was put on trial on the allegations that on 25.8.2000 at about 1.45 p.m, he walked in the State Bank of India’s Branch at Manali and produced two travellers cheques bearing No. QA- 307538 and QA-307539 each for rupees 5000/- for its encashment, at the teller counter manned by PW7 Santokh Singh under the assumed name of J.K. Rana. Said Shri Santokh Singh examined the aforesaid cheques under the ultra-violet lamp and found them forged being the Xerox copies. Consequently, he informed PW3 Shri J.R. Thakur Branch Manager, who Whether reporters of the Local papers are allowed to see the judgment?. Yes. 2 further informed the Police. The petitioner was detained in the Bank premises till the arrival of the Police. PW11 B.S. Negi, S.H.O. Police Station, Manali visited the Bank. Shri J.R. Thakur handed over the report Exhibit PW3/A to him alleging that the aforesaid cheques (RTCs) tendered by the petitioner were forged which fact was got confirmed by him from the Issuing Branch of their Bank at Delhi. It was informed by them that the original RTCs were already encashed in Model Town Ambala and Talwara Branches. The petitioner also informed PW3 Shri Thakur, the Manager of the Bank that these very numbers of RTCs were also encashed by him from State Bank of India’s Branches at Bilaspur, Sundernagar, Chatrokri, Mandi, Bhunter, Kullu and Katrain. The complaint was sent for registration of the case on the basis of which formal FIR was lodged on the same day. It was also alleged that Shiv Kumar, the co-accused of the petitioner was accompanying him but when this offence was detected, he escaped from outside the Bank where he was waiting in a car. The cheques aforesaid were taken into possession by the Police vide memo Exhibit PW7/A. On the personal search of the petitioner, currency notes worth rupees 36,990/- were recovered and a memo Exhibit PW7/B was prepared by the Police. During his personal search, one more replicated RTC bearing No. QA-307538 of the value of Rs. 5000/- was found. It was taken into possession along with other articles vide memo Exhibit PW7/C. When this process was going on, PW6 Shri Prem Lal Sharma, Branch Manager, State Bank of India, Katrain Branch, also reached the premises of the Bank at Manali and produced two forged RTCs bearing No. QA-307538 Exhibit PW5/1 and QA-307539 Exhibit PW5/2 which were also bearing the same numbers as tendered for encashment to the Bank, these were also taken into possession vide memo Exhibit PW6/A. The petitioner was arrested and to arrest the co-accused Shiv Kumar, a police party was deputed. 3 Shiv Kumar was already arrested in FIR No. 415 of 2000 in Police Station, Kullu. His custody was got transferred in this case and 114 RTCs of the same number QA-307538 and 307539 each of the value of rupees 5000/- were also got recovered in FIR No. 415 of 2000 in Police Station, Kullu. Further, in that case, at his instance, the Police also recovered a coloured photo machine on 3.9.2001 from Hoshiarpur which was used to replicate the traveler’s cheques. In nut shell, the case of the prosecution against the petitioner has been that he represented himself as J.K. Rana on 29.7.2000 in State Bank of India at Parliament Branch, New Delhi and moved an application and purchased two R.T.Cs of rupees 5000/- each bearing No. QA-307538 and QA-307539 which were later replicated and used to encash the amount at different places knowing it to be forged. The said application was taken into possession. His writings and specimen signatures as J.K. Rana were obtained and sent for examination to the Handwriting Expert. He is alleged to have used the same number of RTCs at State Bank of India, Katrain Branch and obtained rupees 20,000/- and also presented its replica at various other Branches including Manali. At all the places Police had registered the cases. After collecting the evidence and on completion of the challan, it was presented in the Court for their trial under Sections 420, 489-B and 120-B of the Indian Penal Code. The case was committed to the Court of Sessions. It was found that no offence under Section 489-B of the Indian Penal Code which was exclusively triable by the Court of Sessions was made out. As such, the case was remanded to the Chief Judicial Magistrate Kullu. He framed the charges and the matter was assigned to the court of Judicial Magistrate Kullu for trial. The petitioner and his co-accused were charge-sheeted under Section 468, 472 and 120-B I.P.C. They pleaded not guilty and claimed trial. 4 The prosecution examined its witnesses and the accused were also examined under Section 313 of the Code of Criminal Procedure. No evidence in defence was led. At the end of the trial, learned trial Court acquitted Shiv Kumar by giving him the benefit of doubt. However, it convicted the petitioner for the offence punishable under Section 468 of the Indian Penal Code and sentenced him to under-go simple imprisonment for a period of one year and to pay a fine of rupees 3000/-. During the trial, he did not claim the amount of rupees 36,990/- which was recovered from him thus it was ordered to be confiscated. The petitioner assailed the impugned judgment of conviction and sentence in Criminal appeal No. 2 of 2002, passed by learned trial Court which was dismissed on 1.4.2002 by learned Sessions Judge. As such, the present criminal revision petition has been filed by him on the ground that both the Courts below have failed to appreciate the entire evidence on record in the right perspective, there were major contradictions in the statements of Santokh Singh and J.R. Thakur and no official witness from Ambala and Talwara Branches of State Bank of India was examined. It was not proved that the petitioner had purchased the original travelers cheques in the name of J.K. Rana from the Branch at Delhi. No loss was caused to the Bank. As such, the offence for which he was convicted was not made out. I have heard the learned counsel for the parties and have carefully gone through the record of the case. Admittedly, the petitioner is a resident of Chandigarh. PW7 Santokh Singh was the Assistant Manager in State Bank of India Manali Branch. There is nothing on record to show that PW7 or for that matter any of the bank official were nourishing any grudge against him. PW7 has testified on oath that on 25.8.2000, around 1.45 P.M, when he was manning the teller counter of the Bank, a person came with two RTCs bearing No. QA-307538 and QA-307539 which were of the value of rupees 5000/- each and he presented these cheques for encashment. He 5 got suspicious, checked it with the help of ultra-violet lamp and came to know that both were forged documents. He informed the Branch Manager J.R. Thakur who in turn informed the Police. The person who presented the cheques was not allowed to leave the counter. He was stopped there. Branch Manager had also given the written complaint to the Police. The Police enquired about the identity of that person. He disclosed his name as Vijay Kumar but both the cheques were in the name of Shri J.K. Rana. These cheques were handed over to the Police which were taken into possession vide memo Exhibit PW7/A which was signed by him as a witness and also by Shri J.R. Thakur. The signatures of the petitioner were also obtained on the said memo. On the personal search of the petitioner, currency notes worth rupees 36,990/- were also recovered which were taken into possession by another memo Exhibit PW7/B which was signed by him as well as Shri J.R. Thakur as a witness. Its copy was handed over to the petitioner. In addition to it, one driving licence, one titan wrist watch, one leather purse etc. along with traveler cheque QA-307538 for rupees 5000/- were also found inter alia with other articles and a memo Exhibit PW7/C was prepared. The cheques which were presented to the Bank were proved by him as Exhibit PW5/3 and PW5/4. In cross- examination, he has stated that the petitioner was made to sit with the assistance of the Bank Guard in the bank itself till the arrival of the Police. He further stated that the Bank Manager himself got the confirmation from Delhi regarding issuance of the original cheques aforesaid. PW3 Shri J.R. Thakur, Branch Manager, State Bank of India Manali has corroborated his version and further stated that the said traveler cheques (Ext. PW5/3 and PW5/4) were found to have been replicated. On getting suspicion, co-accused Shiv Kumar who was waiting for the present petitioner outside the Bank fled away in the car. On enquiry, the petitioner disclosed that these cheques were purchased by him. He further stated that he contacted the Delhi Branch and they informed that the said cheqes were the Xerox copy of the original which 6 were already encashed in Model Town Ambala and Talwara Branches. On further inquiry by him, the petitioner told that the similar RTCs were got encashed by him at Bilaspur, Sundernagar, Chatrokhri, Mandi, Kullu and Katrain Branches. He also testified the fact that the currency notes worth rupees 36,990/- on his personal search along with Xerox copy of another replicated cheque No. 307538 were recovered from the petitioner. The accused is alleged to have prepared the seal of Specialist Personal Branch which was affixed on the reverse side of the cheque. He proved the complaint Exhibit PW3/A made to the Police. In his further examination conducted on 3-11-2001, he has proved his signatures on the recovery memos Exhibit PW7/A to PW7/C and stated that the RTCs Exhibit PW5/3 and PW5/4 were the same which were presented by the petitioner for its encashment. In cross-examination, he has stated that he had typed the complaint Exhibit PW3/A himself in the bank when the police was busy in counting the cash in his office in the Bank. He admitted that the final confirmation of the RTCs can be made by the Head Office at Bombay. He stated that the original RTCs are printed in the Government of India Security Press, Nasik. He denied that the final opinion about its forgery could only be given by the Head office at Nasik but voluntarily stated that the Branches which used to issue the RTCs could also confirm it. It is denied by him that the petitioner did not present the said RTCs for its encashment. PW4 A.S.I. Ram Karan has testified on oath that against the petitioner and his co-accused Shiv Kumar, FIR No. 448 of 2000 was registered under Section 420, 467 and 471 of the Indian Penal Code in Police Station, Sadar, District Mandi with respect to encashment of forged travelers check bearing the same numbers QA-307538 and 307539, worth rupees 10,000/-. PW5 Ram Karan has also proved same replicated cheque Nos. 307539 dated 25.8.2000 QA 307538 dated 25.8.2000 from the another case file State-v- Vijay Kumar pending in the court of Chief Judicial Magistrate, Lahaul & Spiti. 7 PW6 Prem Lal Sharma was the Assistant Manager of State Bank of India Branch at Katrain. According to him, the petitioner approached him and introduced himself as J.K. Rana and presented replicated cheques No. QA-307538 and QA-307539 dated 25.8.2000 Exhibit PW5/1 and PW5/2 for encashment and he paid rupees 10,000/- against it to him and later on, he came to know that these were the forged cheques. Thereafter, on search, he did not find the petitioner and thus lodged the FIR in Police Station, Manali. He stated that the petitioner was arrested while encashing the forged cheques in Manali Branch. Nothing material could be extracted in his cross-examination. PW8 A.S.I. Purshotam Lal had recovered the coloured photo machine from Shiv Kumar, the co-accused in the case registered in Police Station, Kullu. PW9 A.S.I. Bhupinder Pal Chauhan is the Investigating Officer. He had also taken the specimen signatures and hand writing of the petitioner which is Ext. PW9/C1 to PW9/C12. The disputed travelers cheques along with the specimen writings and signatures were sent to the Government Examiner of Questioned Documents for his opinion. After obtaining the report Exhibit PW9/D, he presented the challan in the court for its decision. In cross-examination, he has stated the address of J.K. Rana which was given on the application was found to be false on verification. PW10 Krishan Lal, the Manager of State Bank of India, Parliament Street, deposed that on 29.9.2000, one Shri J.K. Rana had filled up the application form Exhibit PW9/A which was signed by him as J.K. Rana and the application as well as signatures on examination were found to be in the hands of the petitioner. PW11 Shri B.S. Negi Inspector also verified his name to be J.K. Rana as having been informed by S.B.I. Branch at Manali and found the petitioner present in the Bank under the supervision of the bank employees. On getting the complaint Exhibit PW3/A, he sent ruka for the 8 registration of the case and took into possession the forged RTC PW5/3 and PW5/4. PW12 S.I. Ishwar Dass has stated that against the petitioner and his associate Shiv Kumar, a case was also registered in Police Station, Bilaspur for encashing the traveler cheques. The report of the Govt. Examiner of Questioned Documents Exhibit PW9/D sent to the Police confirms that the writings on the application Exhibit PW9/A moved on 29.7.2000 in State Bank of India, New Delhi Main Branch was in the hands of the same person whose specimen writings and signatures were contained in Exhibit PW9/C1 to C12 but handwriting expert was not examined. It is also pertinent to mention that this report has been tendered in evidence in the statement of PW9 A.S.I. Bhupinder Pal which has not been disputed in his cross- examination. Even though the report of the Examiner, Questioned Documents is ignored altogether from its consideration, at least the prosecution has been able to prove clearly on record that the petitioner had presented the traveler cheques Exhibit PW5/3 and PW5/4 for its encashment in the bank. On getting suspicion, the petitioner was detained in the Bank itself and later handed over to the Police. His presence in the Bank stands proved and PW3 Shri J.R. Thakur and PW7 Santokh Singh both have corroborated the case of the prosecution that it was the petitioner who presented the aforesaid cheques in the Bank for encashment which also contained the stamp on the reverse side of it which, according to them, was also forged. These cheques were the photo copies of the original which were already encashed at Ambala and Talwara as stated above. Further, the recovery of the replicated copy of one of the same number of the cheque, i..e.QA-307538 from the petitioner also goes to show that the petitioner had knowledge that the RTCs produced before the Bank are forged and adopted the same modus operandi by getting the coloured Xerox copy of the originals and produced for its encashment in different branches of the State Bank of India including Mandi Branch of 9 SBI in this case. Of course, there is no evidence on record establishing that the petitioner had in fact committed the forgery or replicated the cheques by mechanical process. Therefore, offence under Section 468 of the Indian Penal Code is not made out because Section 468 applies to those cases where the accused has forged the document for the purpose of cheating, but in the instant case, the prosecution failed to prove that it was the petitioner who had forged or fabricated the RTCs in question but however, the prosecution was able to prove that the petitioner has : i) fraudulently used documents Ext. PW5/3 and PW5/4 RTCs as genuine; ii) with the knowledge or reasonable belief on his part knowing such documents to be forged one, which fact also stands established by the recovery of one RTC vide Ext. PW7/C of the same number which was replicated of the same number as Ext. PW5/3. In these circumstances, the non examination of the handwriting expert is not fatal to the prosecution. Therefore, the offence committed by the petitioner falls under Section 471 of the Indian Penal Code. Section 471 I.P.C. lays down that sentence that can be imposed for the offence of using a forged document as that for the offence of forgery. The offence of forgery is made punishable under Section 465 of the Indian Penal Code which provides the punishment of imprisonment which may extend to two years or with fine or with both. Therefore, for the foregoing reasons, the conviction passed by the learned trial Court under Section 468 I.P.C. and affirmed in appeal is hereby converted into Section 465 of the Indian Penal Code. The petitioner is held guilty for committing the offence punishable under Section 465 I.P.C. So far as sentence is concerned, the fine amount of rupees 3000/- is stated to have been deposited. The petitioner was arrested in this case on 25.8.2000 and was released on bail on 26.3.2001, as such he remained in custody in this case for about seven months. Therefore, while maintaining the fine, the sentence already 10 undergone, will meet the ends of justice. Thus, order accordingly. The matter stands disposed of. (Surinder Singh) Judge. December 15 , 2008. (bm)