Held guilty for cheating and forgery

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 39 of 2010

Date of decision: 26.08.2016

Sunil Bhaseen
Vs.
State of Himachal Pradesh

Coram :Mr. Justice Ajay Mohan Goel, Judge.

Citation: 2017 CRLJ322

This revision petition has been filed by petitioner/accused against judgment passed by the Court of learned Additional Sessions Judge, Solan, in Criminal Appeal No. 1-S/10 of 2009 dated 28.12.2009, vide which, learned Appellate Court while dismissing the appeal so filed by the present petitioner has upheld the judgment of conviction passed by the Court of learned Judicial Magistrate Ist Class, Kasauli, in Criminal Case No. 164/2 of 07/2000 dated 04.12.2008, vide which, learned trial Court had convicted the present petitioner for commission of offences under Sections 467, 468, 420 and 471 I.P.C. and sentenced him to undergo simple imprisonment for a period of three years with fine of Rs.5,000/- for commission of offences under Sections 467, 468, 420 and 471 I.P.C. each and sentences were to run concurrently.

2. The case of the prosecution was that on 16.09.1998 a complaint was received by S.H.O. Police Station Parwanoo from Senior Manager Shri B.R. Dhand to the effect that the said Branch of Punjab National Bank received a draft bearing No. 651255/26/98 dated 04.09.1998 in favour of M/S Parul Electronics for Rs.30,000/- which was issued by P.N.B. Branch Office Shivaji Marg, Kirti Nagar, New Delhi and as per complainant, it was detected that the said draft leaflet was a forged one and signatures of the persons bearing P.A. No. 4925 and P.A. No. 3128 were also forged. On the basis of this complaint, FIR No. 143/98 was lodged under Sections 467, 468, 471, 420 and 511 I.P.C. During the course of investigation, statement of Ajay Kumar Sood, Proprietor of Parul Electronics was recorded. As per the said statement, accused persons had come in car bearing registration No. DL- 8CC-9386 on 11.09.1998 at his shop and had purchased V.C.R. and T.V. According to the Proprietor, out of the total amount, an amount of Rs.1490/- was paid in cash, whereas Rs.30,000/- was paid by way of demand draft drawn on Punjab National Bank issued by Shivaji Marg, Kirti Nagar, New Delhi. Investigation revealed that Accused No. 1 Sunil Bhaseen i.e. present petitioner was dismissed from P.N.B. Parwanoo Branch and he in league with accused had prepared forged demand draft for an amount of Rs.30,000/-. Esteem car bearing No. DL-8CC-9386 was found in suspicious condition at Parwanoo on 25.09.1998. When the car was checked, drafts drawn on Punjab National Bank, New Delhi, which were blank were found and another draft of State Bank of India was also found. During the course of investigating, specimen signatures of the accused were taken and were sent for comparison to the handwriting expert. Report received revealed that the specimen handwriting and the writing on the impugned drafts were of the same person.

3. After completion of investigation, challan was filed and as a prima facie case was found against the accused, they were accordingly charged for commission of offences under Sections 420, 467, 468, 471 and 120-B I.P.C.

4. At the initial stage of the trial itself, accused No. 2 confessed to his guilt and he was accordingly convicted under all the Sections on 10.03.2003. Present petitioner faced the remaining trial. In his statement recorded under Section 313 Cr.P.C., defence of the petitioner/accused was of total denial. According to him, he was completely innocent and had been falsely implicated in the case.

5. On the basis of material produced on record by the prosecution, learned trial Court held petitioner /accused guilty of commission of offences under Sections 467, 468, 420 and 471 I.P.C.

6. Feeling aggrieved by the said judgment of conviction passed against him by learned trial Court, petitioner/accused filed an appeal, which was also dismissed by learned Appellate Court vide its judgment dated 28.12.2009.

7. Mr. Ashwnai K. Sharma, learned Senior Advocate, argued that the judgment of conviction passed against petitioner/accused by learned trial Court and upheld by learned Appellate Court were perverse and not sustainable in law. According to him, the finding of guilt returned by learned trial Court was totally erroneous findings as the prosecution had failed to prove its case beyond reasonable doubt against the petitioner/accused. Mr. Sharma argued that similarly, learned Appellate Court also had failed to correctly appreciate the evidence on record which had resulted in great travesty of justice as far as present petitioner was concerned. According to Mr. Sharma, both the learned Courts below had failed to appreciate that the draft in issue was never presented for its encashment by proprietor of Parul Electronics and it was not understood as to how Punjab National Bank has lodged the complaint against the accused. He also argued that learned Courts below had not appreciated that the opinion of the handwriting expert besides being a weak piece of evidence was not admissible in law in the facts and circumstances of the present case. Accordingly, on these basis he submitted that the judgments passed by learned Courts below were liable to be set aside and the petitioner deserved acquittal. In support of his contention, he relied upon the following judgments:-

(i) Sate of Maharashtra Vs. Sukhdeo Singh and another, AIR 1992 Supreme Court 2100.
(ii) M.K. Usman Koya Vs. C.S. Santha and another, AIR 2003 Kerala 191.
(iii) Magan Bihari Lal Vs. The State of Punjab, AIR 1977 Supreme Court 1091.
(iv) Onkar Singh Vs. State of H.P., Latest HLJ 2004 (HP) 1306. (v) State of H.P. Vs. Vijay Kumar and others, 2008(1) S.L.J. (H.P.) 399.

8. On the other hand, Ms. Parul Negi, learned Deputy Advocate General argued that neither the judgment passed by learned trial Court was perverse nor the findings of conviction returned against petitioner/accused could be said to be not sustainable in law. Ms. Negi argued that the prosecution had successfully proved its case against the accused beyond reasonable doubt and on the basis of material produced on record by the prosecution the guilt of the accused stood established. She further submitted that when both learned Courts below had found the accused guilty of charges levelled against him then the said findings did not warrant any interference by this Court in exercise of its revisional jurisdiction as there was no perversity in the findings so recorded by learned Courts below. She accordingly, submitted that there was no merit in the revision petition and the same be dismissed.

9. I have heard learned counsel for the parties and also gone through the records of the case as well as judgments passed by both learned Courts below.

10. In the present case, proceedings were initiated against two accused. Accused No. 2 confessed his guilt and was accordingly convicted. Petitioner/accused denied the charges which were framed against him and in the course of trial, he was found guilty of charges levelled against him. Learned trial Court has returned the findings that the bank draft was forged by petitioner/accused. The findings so returned by learned trial Court have been affirmed by learned Appellate Court.

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11. A perusal of the judgment of learned trial Court demonstrates that on the basis of material produced on record by the prosecution it was concluded by learned trial Court that accused No. 1 came to the shop of Ajay Kumar on 11.09.1998 and purchased colour T.V. and V.C.R. and in lieu of the same he handed over to Ajay Kumar the forged draft for an amount of Rs.30,000/- drawn on Punjab National Bank. Learned trial Court held that this was clearly proved by PW-1 Ajay Kumar who had categorically stated that accused No. 1 had purchased electronics goods from his shop and thereafter, handed over draft of Rs.30,000/- which was found to be forged one. It also held that Ajay Kumar had identified both accused No. 1 as well as vehicle which was evident from Fard Ext. PW1/A. Learned trial Court further held that it stood proved from the evidence of expert witness appearing as PW-6 that writing on draft Ext. P-2 and specimen writing Exts. S1 to S-12 were of the same person. Learned trial Court further held that it was apparent from the evidence produced on record by the prosecuting that accused Sunil Bhaseen went to the shop of Ajay Kumar Sood and purchased electronics goods from him and in lieu of the same he issued draft Ext. P-2, which was a forged one. Learned trial Court culled out the following circumstances which as per learned trial Court incriminated the accused for the offence of cheating and forgery:-

“1. The fact that accused No. 1 approached
PW1 Ajay Kumar Sood for purchase of
electronics goods which is corroborated by PW1,
2. The fact that after purchasing the goods
i.e. T.V and V.C.R, the accused No. 1
handed over the draft Ex. P2 to Ajay
Kumar Sood. The fact that accused No. 1
induced Ajay Kumar Sood to part with
electronics goods by issuing him the
bogus and forged draft dated 4-9-1998 Ex.P2.
3. The fact that accused No. 1 is suspended
employee of P.N.B. and he could very
well and easily lay his hands upon blank
demand draft and can misuse them and forge them,
4. The fact that the specimen signatures of
accused No. 1 were obtained during the
course of investigation to which accused
No. 1 never objected at any stage,
5. The fact that these admitted specimen
handwriting matches with the writing of
the draft Ex. P2, which is clear from the
report of handwriting expert Ex. PW6/C
and Ex. PW6/D,
6. The fact that all the witnesses of the
recovery memos have supported the
case of the prosecution,
7. The fact that the accused used the said
forged draft knowing it to be a forged
one and thereby induced Ajay Kumar
Sood to deliver electronics goods to him,
8. The fact that at the time of issuance of
the draft, accused No. 1 very well knew
that the draft is forged one, yet used it
as genuine,
9. The fact that all the prosecution
witnesses have supported the
prosecution case and the investigating
officer has proved on record all the links
in the entire case.”

12. The contention of the accused that on the fateful day he was present in a certain case before learned Chief Judicial Magistrate, District Kinnaur at Reckong Peo, was also disbelieved by learned trial Court keeping in view the fact that Ajay Kumar Sood had categorically stated that on 11.09.1998 the accused was present in his shop and further that in his statement recorded under Section 313 Cr.P.C., accused had simply denied the case of the prosecution and he had not raised specific plea of alibi. Learned trial Court also held that during cross-examination of the prosecution witnesses, it was no where suggested that the said accused was not present in the shop of Ajay Kumar Sood on 11.09.1998. Learned trial Court specifically held that no suggestion in this regard was given to Ajay Kumar Sood, who entered the witness box as PW-1. On these basis, learned trial Court convicted the accused.

13. Learned Appellate Court while upholding the judgment of conviction held that the prosecution had successfully proved that the bank draft in issue had been forged by the present petitioner and thereafter, the same was used by him to cheat PW-1. The contention of the petitioner to the effect that he could not have been physically present at Dharampur on 11.09.1998 as he was present in the Court of Chief Judicial Magistrate, District Kinnaur Kinnaur on 10.09.1998, was disbelieved by learned Appellate Court also by inter alia holding that raising the plea of alibi was not sufficient as the same ought to have been substantiated by leading cogent evidence. On these grounds, learned Appellate Court dismissed the appeal filed by the present petitioner and upheld the judgment passed by learned trial Court.

14. In the present case, it is an undisputed fact that the petitioner happened to be a suspended employee of the Punjab National Bank and the factum of his having approached PW-1 for purchase of electronics goods on 11.09.1998 and having presented forged demand draft to him in lieu of the payment of said electronics goods has been duly proved on record by the prosecution.

15. A perusal of the cross-examination of PW-1 Ajay Sood demonstrates that there is no suggestion given to the said witness that the accused never visited his shop on 11.09.1998. On the contrary, in his cross-examination this witness has categorically denied the suggestion that petitioner was not identified by him but police told PW-1 as to who the accused was. There is no suggestion given by the defence to this witness that no electronics goods were purchased by the petitioner/accused from his shop or that the forged demand draft was never paid by the petitioner/accused to PW-1 in lieu of the consideration of the electronics gods which were purchased by the accused from the shop of Ajay Kumar Sood.

16. Pardeep, who entered the witness box as PW-2, has deposed that police had taken into custody demand draft dated 04.09.1998 and one cancelled draft vide Memo Ext. PW2/A and the said drafts were presented to the police by B.R. Dhand, the then Branch Manger of the Bank. He has categorically stated that his signatures were there in the said Memo. This witness also proved on record the letter pertaining to surrender of lock which is Ext. P-1 as well as one letter dated 16.09.1998 Ext. P-4. Besides this, draft dated 04.09.1998 and cancelled draft which are Exts. P-2 and P-3 respectively. A perusal of the cross-examination of this witness demonstrates that the factum of taking into possession of these documents in his presence has not been questioned in the cross-examination.

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17. Ramesh Chand, who was also an employee of Punjab National Bank and was posted at Parwnaoo as Manager at the relevant time, entered the witness box as PW-5 and deposed that demand draft for an amount of Rs.30,000/- drawn on Kirti Nagar New Delhi, was handed over by B.R. Dhand, the then Senior Manager posted in the Branch of the Bank alongwith cancelled draft to the police. This witness also stated that the applications filed by the petitioner/accused were also taken in custody by the police and these documents were duly identified by him.

18. Dr. B.A. Vaid, handwriting expert, entered the witness box as PW-6 and he deposed on the basis of material on record which included the admitted handwriting of the petitioner/accused as well as his handwriting which were obtained during the course of investigation that these handwritings and those found on the forged demand draft were of one and the same person i.e. accused/petitioner.

19. In my considered view, from the material which was produced on record by the prosecution, all the incriminating factors were pointing towards the guilt of the accused. It cannot be said that learned trial Court has convicted the accused only on the basis of the testimony of PW-6. Learned trial Court has convicted the accused on the basis of the entire evidence which was produced on record by the prosecution both ocular as well as documentary. The report of the handwriting expert as well as his testimony has only been treated as a corroborative evidence and not as primary evidence. The guilt of the accused stood proved on record from the material placed before learned trial Court by the prosecution even if the testimony of PW-6 is ignored.

20. In this view of the matter, the judgments which have been relied upon by learned counsel for the petitioner have no relevance in the facts and circumstances of the present case, because no doubt opinion of handwriting expert is required to be carefully considered but in the present case other material placed on record by prosecution nails the guilt of the accused.

21. Recently, Hon’ble Supreme Court in Sukh Ram Vs. State of Himachal Pradesh, AIR 2016 Supreme Court 3548, has held as under:-

14. Trial court discarded the opinion
evidence of PW-20 on the ground that the
executive magistrate was not the competent
authority before whom the fingerprint and
handwriting of the witnesses could be taken as
no proceeding was pending before the
executive magistrate. In this regard, trial court
placed reliance upon Sukhvinder Singh’s case
and held that the opinion evidence of
handwriting expert cannot be used against the
accused.

15. In Sukhvinder Singh’s case, it was held
that the direction given by the TehsildarExecutive
Magistrate to the accused to give his
specimen writing was clearly unwarranted and,
therefore, the said specimen writing could not
be made use of during the trial and the report
of handwriting expert was rendered of no
consequence at all and could not be used
against the accused to connect him with the
crime. It was held that the direction to an
accused to give specimen handwriting can only
be issued by the court holding enquiry under
the Criminal Procedure Code or the Court
conducting the trial of such accused.

16. High Court differentiated Sukhvider
Singh’s case from the case at hand on facts as
also on law. High Court pointed out that in the
matter at hand, admittedly, the authorityExecutive
Magistrate before whom the
specimen signatures were given did not have
the authority to enquire into or try the case.
However, as observed by the High Court,
during the course of investigation, PW-5 and
PW-7 gave the specimen signatures willingly.
In Sukhvinder Singh’s case, specimen writing
of accused was taken as per the direction of
the tehsildar; whereas in the present case
PW-5 and PW-7 were produced before the
Executive Magistrate by the police with a
request that their signatures be taken by the
Executive Magistrate. Sukhvinder Singh’s case
is clearly distinguishable on facts from the case
at hand. High Court further relied on another
decision rendered in Vijay alias Gyan Chand
Jain’s case (1994 AIR SCW 4315) wherein in
the facts and circumstances of the said case, it
was held that procurement of specimen
handwriting of accused by Naib Tehsildar was
not in violation of Section 73 of Evidence Act.

17. The question is whether the Judicial
Magistrate/Executive Magistrate was
authorized to take specimen writing and
signatures of the said accused during the
investigation of the case when no matter was
pending before either of them. Section 311-A
of Cr.P.C. has been introduced by Act No.25 of
2005 with effect from 23.06.2006 with respect
to the powers of the Magistrate to order the
person to give specimen signatures or
handwriting; but no such powers were there
prior to the year 2006. Section 311-A Cr.P.C.
has been inserted on the suggestions of the
Supreme Court 11 Page 12 in State of Uttar
Pradesh v. Ram Banu Misra, (1980) 2 SCC
343: AIR 1980 SC 791, that a suitable
legislation be brought along the lines of Section
5 of Identification of Prisoners Act, 1980, to
provide for the investiture of Magistrates with
powers to issue directions to any person
including an accused person to give specimen
signatures and handwriting but no such powers
existed prior to such amendment. The said
amendment is prospective in nature and not
retrospective.

18. In State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343:AIR 1980 SC 791, the Supreme Court dealing with the scope and ambit of Section 73 of the Evidence Act held as under:

“The second paragraph of Section 73
enables the Court to give specimen writings
‘for the purpose of enabling the Court to
compare’ such writings with writings alleged to
have been written by such person. The clear
implication of the words ‘for the purpose of
enabling the Court to compare’ is that there is
some proceeding before the Court in which or
as a consequence of which it might be
necessary for the Court to compare such
writings. The direction is to be given for the
purpose of ‘enabling the Court to compare’ and
not for the purpose of enabling the
investigating or other agency ‘to compare’. If
the case is still under investigation there is no
present proceeding before the Court in which
or as a consequence of which it might be
necessary to compare the writings. The
language of Section 73 does not permit a Court
to give a direction to the accused to give
specimen writings for anticipated necessity for
comparison in a proceeding which may later be
instituted in the Court. Further, Section 73 of
the Evidence Act makes no distinction between
a Civil Court and a Criminal Court. Would it be
open to a person to seek the assistance of the
Civil Court for a direction to some other person
to give sample writing under section 73 of the
Evidence Act on the plea that it would help him
to decide whether to institute a civil suit in
which the question would be whether certain
alleged writings are those of the other person
or not? Obviously not. If not, why should not
make any difference if the investigating agency
seeks the assistance of the court under Section
73 of the Evidence Act on the plea that a case
might be instituted before the Court where it
would be necessary to compare the writings?”

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19. After referring to Section 5 of the Identification of Prisoners Act, 1980 in Ram Babu Misra’s case, this Court suggested that a suitable legislation be made along its lines to provide for investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting. Accordingly, a new Section 311-A was inserted in the Criminal Procedure Code. Section 311-A Cr.P.C. reads as under:-

“Section 311A. Power of Magistrate to
order person to give specimen signatures or
handwriting.- If a Magistrate of the first class is
satisfied that, for the purposes of any
investigation or proceeding under this Code, it
is expedient to direct any person, including an
accused person, to give specimen signatures or
handwriting, he may make an order to that
effect and in that case the person to whom the
order relates shall be produced or shall attend
at the time and place specified in such order
and shall give his specimen signatures or
handwriting:
Provided that no order shall be made
under this section unless the person has at
some time been arrested in connection with
such investigation or proceeding.”
The said amendment is prospective in
nature and not retrospective.”

22. Therefore, in my considered view, it cannot be said that the findings of conviction which have been returned by learned trial Court against the accused are either perverse or not borne out from the records of the case.

23. Similarly, the plea of the accused to the effect that the prosecution was not able to prove his presence in the shop of PW-1 on 11.09.1998 is also belied from the evidence produced on record by the prosecution. PW-1 in his statement has categorically stated that it was the petitioner/ accused who has visited his shop on 11.09.1998 and purchased electronics goods and in lieu of the same, had handed over to him the forged demand draft of an amount of Rs.30,000/-. There is no cross-examination of this witness to the effect that his shop was never visited by the accused on the said date. Therefore, it cannot be said that the presence of accused Sunil Bhaseen was not proved by the prosecution in the shop of PW-1 on 11.09.1998.

24. Even learned Appellate Court has correctly appreciated the evidence produced on record both ocular as well as documentary by the prosecution as well as the findings returned by learned trial Court and only thereafter, learned Appellate Court has upheld the findings of conviction so returned against the accused by learned trial Court.

25. In my considered view, material on record clearly proves that the petitioner was guilty of forgery because he had not only forged the documents, but he had also used the said documents for the purpose of cheating and he had also produced the same as genuine knowing fully well when he used it as a genuine document that the same in fact was a forged document.

26. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot absence or error on a point of law, re-appreciate evidence and reverse a finding of law. It has been further held by the Hon’ble Supreme Court in that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals.

27. It has been reiterated by the Hon’ble Supreme Court in Shlok Bhardwaj Vs. Runika Bhardwaj and others, (2015) 2 Supreme Court Cases 721, that the scope of revisional jurisdiction of the High Court does not extend to reappreciation of evidence.

28. It has been further reiterated by the Hon’ble Supreme Court in Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others, (2015) 3 Supreme Court Cases 123:

“14. In the case before us, the
learned Magistrate went through the entire
records of the case, not limiting to the
report filed by the police and has passed a
reasoned order holding that it is not a fit
case to take cognizance for the purpose of
issuing process to the appellant. Unless
the order passed by the Magistrate is
perverse or the view taken by the court is
wholly unreasonable or there is nonconsideration
of any relevant material or
there is palpable misreading of records,
the revisional court is not justified in
setting aside the order, merely because
another view is possible. The revisional
court is not meant to act as an appellate
court. The whole purpose of the revisional
jurisdiction is to preserve the power in the
court to do justice in accordance with the
principles of criminal jurisprudence.
Revisional power of the court
under Sections 397 to 401 of Cr.PC is not
to be equated with that of an appeal.
Unless the finding of the court, whose
decision is sought to be revised, is shown
to be perverse or untenable in law or is
grossly erroneous or glaringly
unreasonable or where the decision is
based on no material or where the
material facts are wholly ignored or where
the judicial discretion is exercised
arbitrarily or capriciously, the courts may
not interfere with decision in exercise of
their revisional jurisdiction.

29. Therefore, in view of what has been discussed above, I do not find any merit in the present revision petition nor it can be said that the judgment of conviction passed by learned trial Court and upheld by learned appellate Court is not sustainable either on facts or law.

30. As already held above, there is no perversity in the judgments passed by the learned Courts below. These judgments have been passed by appreciating all the material on record and the judgments are neither cryptic nor it can be said that the conclusion arrived at are not borne out from the material placed on record by the prosecution. Thus, the revision sans merit and the same is dismissed.

(Ajay Mohan Goel),
August 26, 2016 Judge

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