Crl.Rev.P.122/2003 Page 1 of Page 20 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 12th,November 2009 Judgment Delivered on: 27th,November 2009 + CRL.REV. P.122/2003, CRL.M.A.NOs.243/2003 & 440/2003 SURINDER KUMAR BALI …Petitioner Through: Mr. Sandeep Sethi, Sr. Advocate with Mr. Anurag Jain, Mr. Sindhu Sinha & Mr. Nikhil Bhalla, Advocates Versus STATE …Respondent Through: Mr.Manoj Ohri, APP. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. 1. Charge sheet had been filed against six co-accused persons. Sunil Kumar Bali is the petitioner before this Court; he was the Assistant Manager of the Syndicate Bank, Kamla Nagar Branch, Delhi at the relevant time. Bhagya Nath and Venu Gopal were also assistant managers; Ram Kumar & Dev Anand were clerks and S.S.Brahmi was a stenographer. Allegations were that all the aforestated persons had entered into a criminal conspiracy to make certain bogus withdrawals from the bank; in furtherance of the common object of their criminal conspiracy they had opened two current accounts i.e. C/A No. 1732 in the name of Mahendra Estate Crl.Rev.P.122/2003 Page 2 of Page 20 and C/A No.1738 in the name of M.K.Enterprises. False transfer vouchers and entries were made in the ledger in order to fructify their common purpose. 2. Allegations against the petitioner are two fold:- i)- Account opening form of current account no. 1732 Ex.PW-14/D of Mahendra Estate was introduced by Darshan Lal Manchanda; petitioner has verified the signatures of the introducer namely Darshan Lal Manchanda on this account opening from. Darshan Lal Manchanda had come into witness box as PW-3 and had denied that he had introduced this account. Allegations thus being that the petitioner had committed a forgery. ii)- Petitioner had tallied an amount of Rs.5,05,000/- from the current account No.1738 Ex.PW-14/F in the name of M/s M.K.Enterprises with the balance in the Balance Book Ex.PW-12/H of the bank; (Ex.PW-12/G) is the original) this was a forgery done with an intent to cheat. 3. Trial Court had examined 16 witnesses to substantiate the allegations against the accused persons. Complianant was J.C. Singhal, the manager of the bank at the relevant time. He has been examined as PW-14. Darshanlal Manchanda PW-3 had purportedly introduced the current account No.1732 of Mahendra Estate; specimen signatures of PW-3, Ex.PW-3/A and Ex.PW-3/B were taken in the presence of Hari Om PW-4. Specimen signatures of the petitioner were taken on 9.7.1987 in the presence of Ram Singh PW-10. Dr.S.C.Mittal PW-8 had examined the questioned and the admitted/specimen writings/signatures of the petitioner, PW-3 as Crl.Rev.P.122/2003 Page 3 of Page 20 also the other accomplices of the petitioner. His reports Ex.PW-8/A and Ex.PW-8/B were however both inconclusive qua the role of the petitioner. R.K.Dhawan PW-12 was the special Assistant Manager in the bank at the relevant time and was looking after the loan deposit Register; as per his version in August 1986 he had reported that the L.D. i.e. the loan deposit register was missing. 4. Trial Court on the basis of the evidence adduced before it had convicted the petitioner i.e. Surinder Kumar Bali, Bhagya Nath and Venu Gopal under Section 120 B read with Sections 420/511 of the IPC. They were also convicted for having committed an offence punishable under Section 380 read with Section 120 B of the IPC as also for the offence punishable under Section 468, 471 read with Section 120 B of the IPC. 5. Vide order of sentence dated 26.8.2002 all the aforestated persons had been sentenced to undergo RI for one year and to pay file of Rs.10,000/- for the offence punishable under Section 120 B of the IPC; they were sentenced to undergo RI for one year and to pay fine of Rs.5000/- for the offence punishable under Sections 420/511 of the IPC read with Section 120B of the IPC; they were further sentenced to undergo RI for two years and to pay a fine of Rs.10,000/- for the offence punishable under Section 380 read with Section 120B of the IPC; for the offence punishable under Section 468 of the IPC they were sentenced to undergo RI for one year and to pay a fine of Rs.5000/-; no separate sentence had been awarded for the offence punishable under Section 471 of the IPC. Crl.Rev.P.122/2003 Page 4 of Page 20 6. In appeal before Additional Sessions Judge vide judgment dated 4.2.2003 co-accused Venu Gopal and Bhagya Nath had been acquitted of all the charges levelled against them. The conviction of the petitioner i.e. S.K.Bali had been maintained under Sections 120B/468 of the IPC. For the offence punishable under Section 420 read with Section 511 of the IPC, his conviction had been altered and was converted into a conviction under Section 417 of the IPC; he was acquitted of the offence under Section 380 read with Section 120B of the IPC. He was sentenced to undergo RI six months for the offence punishable under Section 120B of the IPC, no alteration was made in the fine imposed. For the offence punishable under Section 417 of the IPC he was sentenced to undergo RI for six months and to pay fine of Rs.5000/- in default of payment of fine to undergo SI for one month. For the offence punishable under Section 468 of the IPC he was sentenced to undergo RI for one year and to pay a fine of Rs.5000/- and in default of payment of fine to undergo SI for one month. 7. It is this order which has become the subject matter of this revision petition before this Court. 8. On behalf of the petitioner, it has been urged that the altered conviction by the appellate Court is illegal, arbitrary and has resulted in a mis-carriage of justice. The petitioner is the only person out of the six persons charge sheeted who now remains convicted; in the absence of any other person having allegedly hatched the conspiracy with the present petitioner the ingredients of Section 120 B of the IPC are not made out; it is not the case of Crl.Rev.P.122/2003 Page 5 of Page 20 the prosecution that the petitioner had entered into a conspiracy with some unknown person; case of the prosecution is that the petitioner had hatched this conspiracy with the other known persons i.e. the other five co-accused persons; all of whom now stand acquitted; petitioner alone cannot be convicted for the offence under Section 120B of the IPC as the ingredients of the said Section necessarily postulate that a conspiracy has to be between more than one person; there is no such other person; conviction under Section 120 B of the IPC is liable to be set aside. For this proposition, learned counsel for the petitioner has placed reliance upon AIR 1956 SC 33 Topandas vs. State of Bombay; it is submitted that this judgment squarely applies to the proposition now propounded by the counsel for the petitioner; emphasis has been made on the finding which inter alia reads as follows:- By the terms of the definition itself, there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. If, therefore, 4 names individuals were charged with having committed the offence under S. 120-B, Penal Code, and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No.1 in the cases before us, could never he held guilty of the offence of criminal conspiracy. 9. Ingredients of cheating as defined under Section 415 of the IPC necessarily postulate an intention; there must be an intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property; the intentional deception presupposes the existence of a Crl.Rev.P.122/2003 Page 6 of Page 20 dominant motive of the person making the inducement; such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived; further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. It is submitted that this definition necessarily has two parts; while in the first part the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. This is to say, in the first part inducement must be dishonest or fraudulent. In the second part inducement should be intentional; a guilty intention is an essential ingredient of cheating. None of these ingredients are contained in the allegations against the present petitioner. For this proposition reliance has been placed upon 2000(3) SCC 693 G.V. Rao vs. L.H.V. Prasad & Ors. It is submitted that at best the acts of the petitioner can qualify for a negligence or a failure to perform a duty or to observe a rule of procedure; in the absence of mense rea which is an essential requirement of the offence of cheating, an administrative lapse cannot establish this charge. Reliance has been placed upon 1974 (4) SCC 616 Anil Kumar Bose vs. State of Bihar to substantiate this submission. 10. Attention has also been drawn to the definition of “dishonestly” and “fraudulently” as contained in Sections 24 and 25 of the IPC; both these sections require some action resulting in disadvantage which but for the deception the person defrauded Crl.Rev.P.122/2003 Page 7 of Page 20 would have avoided. Reliance has been placed upon 1997 6 SCC 499 Jibrial Diwan vs. State of Maharashtra. 11. It is submitted that in the instant case the mere verification by the petitioner of the signatures of the introducer on the current account of Mahendra Estates and the second allegation that he had counter signed the tallying of the balance in the Balance Book of the Bank with the current account of M.K.Enterprises does not by any stretch of imagination come within the ambit of the definition of either the act being dishonest or fraudulent; no offence is made out qua the present petitioner. 12. Ingredients of Section 468 of the IPC necessarily encompass within its ambit a forgery for the purpose of cheating; if there is no cheating, offence under Section 468 of the IPC is also not made out. Forgery has been defined under Section 463 of the IPC which postulates the making of a false document. Making of false document has been defined under Section 464 of the IPC; attention has been drawn to its language. 13. It is submitted that in the absence of the prosecution having been able to show that the petitioner had made any gain from the so-called forgery committed by him, the ingredients of this offence are also not made out. Reliance has been placed upon JT 2009 (13) SC 507 Parminder Kaur vs. State of U.P. & Anr. The petitioner had nothing to gain and neither is there any such allegation; it has also not been established by the prosecution that any loss has been suffered by the bank from the acts of the petitioner. Crl.Rev.P.122/2003 Page 8 of Page 20 14. Admittedly there is no expert opinion on the questioned admitted and the specimen handwriting/signatures which had been sent to CFSL for comparison. Attention has been drawn to the report of the CFSL which has been proved in the version of Dr. S. C. Mittal PW-8, Ex.PW-8/A and Ex.PW-8/B, the finding in the reports are all inconclusive; it is also not a case where the judge himself had examined the said documents i.e. either the specimen or the admitted writings with the questioned documents. To establish the ingredients of an offence under Section 468 of the IPC, it was incumbent upon the prosecution to have obtained a scientific report which is absent in this case. Reliance has been placed upon [1963] 3 SCR 564 Abinash Chandra Bose vs. Bimal Chandra Bose to substantiate his submission that where there is no expert evidence before the court to come to the conclusion about authorship of the impugned portion of a document, benefit of doubt has to accrue in favour of the accused. 15. Attention has been drawn to Ex.PW-14/D i.e. the account opening form of the current account no.1732 of Mahendra Estates. This document has been counter signed by the petitioner; it is submitted that Darshan Lal Manchanda PW-3 who had purportedly introduced this account has on oath clearly stated that he had not done so; it is also not the case of the prosecution that some other person had impersonated as Darshan Lal Manchanda. The petitioner while counter verifying this document had done so on the basis of the earlier record available with the bank i.e. the signature and writing of Darshan Lal Manchanda. The petitioner is a lay person Crl.Rev.P.122/2003 Page 9 of Page 20 and it was only with a naked eye that he had examined these documents before he had counter signed Ex.PW-14/D; he was not a scientific expert. He could not have gone into the nitty gritties of the handwriting of Darshan Lal Manchanda; on the face of it the signatures of the introducer on Ex.PW-14/D appear to be that of Darshan Lal Manchanda. Even otherwise the bank had not suffered any loss as no transaction had been effected from this account. 16. The second allegation against the petitioner that he had counter signed the balance in the Balance Book of the Bank with the current account i.e. the entry dated 22.8.1986 of Rs.5,00,500/- does not make out a case of forgery. Attention has been drawn to the document Ex.PW-12/H and the said entry dated 22.8.1986; forgery is not established. 17. Arguments have been rebutted by the learned counsel for the State. It is pointed out that this Court can even in the absence of a named co-conspirator convict a single person for the offence of conspiracy under Section 120 B of the IPC. Reliance has been placed upon AIR 1991 SC 318 Brathi alias Sukhdev Singh vs. State of Punjab to substantiate this submission that the Appellate Court is free to appreciate the evidence to reach its own conclusion. If on such evidence the Appellate Court arrives at a conclusion that the appellant and another co-accused had acted in furtherance of their common intention then the conviction of the appellant with the aid of Section 34 is legal; this is notwithstanding the finding that no appeal has been filed by the State against the acquittal of such a co- accused. Reliance has also been placed upon AIR 1956 SC 469 Crl.Rev.P.122/2003 Page 10 of Page 20 Bimdadhar Pradhan vs. The State of Orissa; it is submitted that even a single person can be convicted under Section 120 B of the IPC; it is not essential that more than one person should be convicted of the offence of criminal conspiracy; it is enough if the Court is in a position to find that two or more persons were actually concerned in the criminal conspiracy. Attention has also been drawn to the admissions of the petitioner made in his statement under Section 313 of the Cr.P.C. It is submitted that the petitioner has not disputed his handwriting and signatures either on Ex.PW-14/D or on Ex.PW-12/H. It is submitted that the petitioner has admitted that he was in charge of the bank at the relevant time; as such in this capacity it was his duty to ensure that the verification made by him of the signatures of Darshan Lal Manchanda had in fact tallied with his original signatures; he did not do so intentionally and fraudulently; this is also evident from Ex.PW-12/H in which the balance in the account had admittedly been tallied by him; he did this tallying with a dishonest intent. 18. Arguments have been heard and record perused. 19. J.C. Singhal PW-14 was the complainant; he was the Manager of the Kamla Nagar Branch Syndicate Bank from August 1984 to April 1988; incident is of the year 1986. He had lodged the complaint Ex. PW-14/C. In this complaint various allegations were levelled against the various co-accused. It had been alleged that the current account No.1732 of M/s Mahindra Estate and current account No.1738 of M.K.Enterprises were fraudulent accounts. After detaling the various allegations against the co-accused including the Crl.Rev.P.122/2003 Page 11 of Page 20 petitioner a request for initiating an inquiry had been made. PW-14 has deposed that current account of M/s Mahindra Estates has been introduced by proprietor of DD Electronics namely Darshan Lal Manchanda having current account No.1636 who has however denied having introduced any such account. 20. A perusal of the account opening form and specimen signature card reflects that it had been chemically treated and original material had been erased; further in the current account No.1738 of M/s M.K.Enterprises a credit of Rs.5 lacs in the current account ledger folio had been shown on 27.7.1986; this entry appears on an erased surface of the folio and seems to have been carried out by a rubber/erasing material; further the transfer/day scroll of 27.7.1986 is missing and the loans of deposits sub day took on 27.7.1986 is pasted by a sticking material like gum. Besides these allegations there were other allegations which relate to the role of the other co-accused; these specific allegations as enumerated above related to the role of the present petitioner. 21. PW-14 has further deposed that the two forged accounts in the name of M/s M.K.Enterprises and Mahindra Estates had been opened in their branch in 1986 and both these said accounts were found to be forged. The account opening form of Mahindra Estates was verified by S.K.Bali who was the Assistant Branch Manager in the branch at the relevant time. 22. This account opening form is Ex.PW-14/D. It shows that current account No.1732 was opened in the name of Mahindra Estates; back page of the document shows that this account was Crl.Rev.P.122/2003 Page 12 of Page 20 introduced by DD Electronics and the signatures of the introducer has been penned at Q-17D on Ex.PW-14/D purported to be that of Darshan Lal Manchanda. 23. Darshan Lal Manchanda has come into the witness box as PW-3. He has on oath deposed that he has a firm in the name of DD Electronics at Wazirpur Industrial Area and is having current account No.1636 at the Syndicate Bank Kamla Nagar. He has deposed that he had not introduced M/s Mahindra Estate either for a current account or for a saving account. His specimen signatures were taken vide Ex.PW-3/A & B. 24. The CFSL had examined the questioned writings on Ex.PW- 14/D with the specimen handwritings of PW-3. The report of the CFSL has been proved in the testimony of Dr.S.C.Mittal PW-8. There are two reports of the scientific expert i.e. Ex.PW-8/A and Ex.PW- 8/B; Ex.PW-8/A is dated 31.7.1989, vide this report the scientific expert had desired that the original documents be sent to him; in the absence of which he could not give a conclusive report. Ex.PW- 8/B is dated 22.2.1991. This report is also inconclusive; there is, thus, no scientific evidence with the prosecution to affirm the statement of PW-3 that he had not signed Ex. PW-14/D. Yet his ocular version remains unchallenged. 25. It is a settled principle of law that an opinion of an expert is a relevant fact under Section 45 of the Evidence Act and no more; it can be used for corroboration but in the absence of scientific opinion the ocular testimony of a witness cannot be discarded. Crl.Rev.P.122/2003 Page 13 of Page 20 26. Section 464 of the IPC describes the making of a false document. It inter alia reads as follows :- “….. a person makes a false document if he – (1) Dishonestly or fraudulently makes, signs, seals or executes a document, or part of a document, or makes any mark denoting the execution of a document; and (2) Does as above with the intention of causing it to be believed that such document or part of a document was made, signed sealed or executed, 27. Petitioner S.K.Bali was the Assistant Manager at the relevant time. He had verified the introducer’s signatures i.e. the signature of Darshan Lal Manchanda on Ex.PW-14/D in the said capacity; it was incumbent upon him to have verified from the account opening form i.e. the current account No. 1636 of DD Electronics as to whether the signature appended on Ex.PW-14/D was in fact the signature of Darshan Lal Manchanda or not but he did not do so. He had made a false document. 28. Necessary mense rea has to be gathered from the attendant circumstances. What were the attendant circumstances? Investigation had revealed that Mahindra Estates of whom the proprietor was Mahender Narula having a current account No.1732. This was a fictitious account opened on 7.6.1986 and in fact the address which had been mentioned in Ex.PW-14/D of Mahindra Estate i.e. A-347, Wazirpur Industrial Area, Delhi-43 does not exist; this has come in the categorical version of PW-14 in his complaint Ex.PW-14/C which had recorded “no premises in existence with the declared address”. Further the second account i.e. the account of M.K.Enterprises having current account No.1738 was introduced by Crl.Rev.P.122/2003 Page 14 of Page 20 Mahendra Estates, a non-existent entity. This account Ex.PW-14/E and was opened on 15.6.1986. This evidence produced by the prosecution is sufficient to bring home the charge of forgery which had been levelled against the accused. Both the Courts below had given a concurrent finding on this aspect. 29. To establish the ingredients of Section 468 of the IPC, it must be established not only that the document is forged; but further that the accused had intended that this forged document would be used for the purpose of cheating. Cheating has been defined under Section 415 and necessary ingredients of the said offence have been discussed supra. Deception is the quintessence of the offence. It means causing to believe what is false or misleading as to a matter of fact or leading to error; such deception may be by word or conduct depending upon facts of the each case. This deception has to be qualified either by a fraudulent or a dishonest inducement and is coupled with an act or an omission which is likely to cause damage or harm to that person in body, mind, reputation or property. 30. The person so effected in this case is the Syndicate Bank who is the complainant. The petitioner by his act of verifying a false document i.e. verifying the introducer’s signature on the account opening form Ex.PW-14/D which is an important prerequisite before an account can be opened had facilitated in the opening of this fictitious account in the Syndicate Bank i.e. of a non-existent person. Fraudulent and dishonest intention to deceive the bank is writ large qua the role of the present petitioner. Crl.Rev.P.122/2003 Page 15 of Page 20 31. This is not the only instance of cheating and forgery for which the petitioner had been convicted by the two Courts below. The second incident is of the tallying of the balance of Rs.5,05,000/- in the Balance Book of the Bank with the current account No.1738 of M/s M.K.Enterprises. This document is Ex.PW-12/H i.e. entry dated 22.8.1986 showing a balance of Rs.5,00,500/- in the said account. It has admittedly been signed by the petitioner. The petitioner has also admitted this fact in his statement recorded under Section 313. 32. In answer to question no.4 he has stated that he had