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IN THE COURT OF SH.

GAJENDER SINGH NAGAR, MM-04,


WEST DISTRICT, TIS HAZARI COURT,DELHI

STATE Vs. BHAGAT SINGH


FIR No. 653/2000
PS: MOTI NAGAR
U/S: 420/468/471 IPC
JUDGMENT
Sr. no. of the case

652/1/10

Unique Case ID no.

02401R0210202003

Date of commission of offence

03.12.2000

Date of institution of the case

15.02.2003

Name of the complainant

Sh. Ashok Anand

Name of accused and address

Bhagat Singh
S/o Sh. Bhura Singh
r/o S-131, Mangol Puri,
New Delhi.

Offence complained of or proved

U/s 420/468/471 IPC

Plea of the accused

Pleaded not guilty

Final order

Conviction

Date on which reserved for judgment

01.06.2016

Date of judgment

07.06.2016

*******************************************************************************************************************************

BRIEF STATEMENT OF THE REASON FOR DECISION:


THE FACTS:
1.

Brief facts of the case are that the complainant Sh. Ashok Anand
was running a shop in the name and style M/s Anand Traders at
WZ-49, New Sudama Market opposite 10 Block, Moti Nagar, New
Delhi. On 03.12.2000 accused Bhagat Singh went to the shop of the
complainant and induced the complainant to sell one colour TV make
Videocon and one refrigerator of 165 Lts. of make Whirlpool to him. The
total cost of the TV and the refrigerator came to be Rs. 18,590/- (colour
TV for Rs. 10,490/- and refrigerator for Rs. 8,100/-). The accused paid a

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sum of Rs. 1,790/- in cash and issued a cheque bearing no. 527720
dated 04.12.2000 of Rs. 16,800/- drawn on Central Bank of India,
Janakpuri Branch to pay the remaining amount. To gain the trust of the
complainant he handed over a copy of his Ration Card to the
complainant. Later on, on presentation the cheque was dishonoured
and complainant came to know that the cheque was forged and
fabricated as there was no bank account in the name of accused
Bhagat Singh. During investigation accused was arrested. The
videocon TV and refrigerator were recovered from him. His specimen
signatures were taken, same were got verified/analyzed from the FSL,
Hyderabad. Accordingly, after the investigation, police filed the present
charge sheet against the accused.
2.

Complete set of copies were supplied to the accused. After hearing


arguments, charges were framed against the accused for trial of offence
U/s 420/468/471 IPC, to which he pleaded not guilty and claimed trial.

MATERIAL EVIDENCE IN BRIEF:


3.

The Prosecution in support of present case has examined following


witnesses:-

4.

PW1 W/SI Rajbala was the Duty Officer, who exhibited on record
carbon copy of FIR as Ex.PW1/A and endorsement on the rukka as
Ex.PW1/B.

5.

PW2 Sh. R.A. Mittal deposed that he has retired from the post of
Deputy General Manager, Central Bank of India in April, 2012. It is
stated that he had worked as Senior Manager in Central Bank of India,
Janakpuri Branch from February 2000 to July 2001. It is stated that
after receiving the summons from the court he sent a mail requesting
the present Chief Manager, Central Bank of India, Janakpuri Branch to
produce the summoned record. It is stated that the cheque book issuing
register according to which the cheque book bearing no. 527701 to
527720 was issued to the account holder bearing account no. 13958. It
is stated that the name of the account holder as per the cheque book

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issuing register (OSR) is Reetica. It is stated that the copy of the


relevant page of the said register is Ex. PW2/A showing the relevant
entry at portion encircled with red ink. It is stated that the print out of the
contents of the email he sent to the present Chief Manager, Central
Bank of India for producing the relevant record, signed by him in the
court is Ex. PW2/B. It is stated that as per the information received from
Sh. Sharad Dwivedi record pertaining to account no. 3958 and 13958 is
not available as weeded out.
6.

PW-3 Sh. B.R. Meena deposed that he is retired as Deputy Chief


Manager from Bank of India in July 2009. It is stated that in the year
2000 he was posted as Deputy Chief Manager in Kirti Nagar Branch. It
is stated that he cannot produce the summoned record. It is stated that
he had contacted the present Manager of Kirti Nagar branch to arrange
for producing the record, but he had given in writing that the record is
10 years old, hence, the same has been weeded out. The said letter of
present Sr. Manager Sh. Ramesh Pal is Mark L. It is stated that he
have seen Ex. PW3/A. It is stated that the memo was prepared by the
police in his presence. It is stated that vide this memo he had handed
over to the IO cheque no. 527720 already Ex. P1 and cheque returning
memo received from Central Bank of India already Ex. PW2/C. It is
stated by this witness that he remember that while he was posted at
Kirti Nagar Branch there was an account holder M/s Anand Traders
having current account no. 1207. It is stated that he remember that the
account holder had deposited cheque Ex. P1 in the said account which
was dishonoured due to the reason The Cheque being stolen. It is
further stated by this witness that in the absence of the relevant record
he is unable to tell anything further about the case.

7.

PW-4 Sh. Ashok Anand deposed that in the year 2000 he was
running a shop under name and style of M/s Anand Traders at WZ-49,
New Sudama Market opposite 10 Block, Moti Nagar. It is stated that on
03.12.2000 accused Bhagat Singh came at his shop to purchase TV
and refrigerator. It is stated that he agreed to purchase one refrigerator
and one TV for the amount of Rs.18,590/-. It is stated that out of this

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amount, accused paid Rs.1,790/- in cash and issued a cheque for the
rest of the amount on the pretext that he was not having cash at that
time and asked this witness to deposit the cheque after two days. It is
stated that accused had given him photocopy of ration card and a
cheque. It is stated that on 07.12.2000 he presented the cheque in his
account in Bank of India, Kirti Nagar. It is stated that after presentation
of cheque, Bank Manager informed him that cheque is forged and
asked him who has given him this cheque. It is stated that he made
enquiry at the given address and came to know that things were not
delivered at the given address. Copy of ration card given to him by the
accused is Mark 'X'. It is stated that the bill issued by him in respect of
TV and fridge bears his signature at point A and the same is Ex.PW4/A.
It is stated that the delivery challan issued by him is Ex.PW4/B. It is
stated that when he went to the bank they have return him the said
cheque and a return memo, same is shown to the witness who correctly
identified the same and same is already Ex.PW2/C. The cheque
bearing no. 527720 is shown to the witness, who correctly identifies the
same as issued by accused Bhagat Singh to him and same is already
Ex.P1. It is stated that he had given bill no.093 and delivery challan to
the police, which was seized by the police vide seizure memo
Ex.PW4/C. It is stated that the Cheque no.527718 and 527719 are
Ex.P2 and P3 and one slip Ex.P4 to issue new cheque book were also
seized by the IO vide seizure memo Ex.PW4/D. It is stated that the
above mentioned TV and fridge was seized by the IO vide seizure
memo Ex.PW4/E. It is stated that the pointing out memo is Ex.PW4/F.
The attention of witness is drawn towards disclosure statement of
accused and witness identifies his signature at point A and same is
Ex.PW4/G. It is stated that the TV and fridge were released to him but
he cannot produce the same as they have been destroyed.

In his

cross-examination, he could not tell the product number of the TV or


refrigerator. It is stated by him that since its been a long time he does
not have any document to show that he was having that TV or
refrigerator with him in stock. It is stated by him that he cannot say that
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the cheque was signed by the accused or not as the accused has not
signed the same in his presence. It is stated that the accused brought
the cheque in signed condition and handed over the same to him. It is
stated by him that he had gone to Mangol Puri area from where the TV
and refrigerator were recovered from the house where the same were
kept by the accused. However, he could not tell the address of that
house. This witness could not tell if the house at Mangol Puri belongs to
accused or not.
8.

PW-5 Ct. Santosh Pandey deposed that on 03.12.2000 he


alongwith IO joined investigation of the present case. It is stated that he
alongwith IO went to 49 Sudama Market then they went to Sudharshan
Park. It is stated that at Sudama Market they met with the complainant
and alongwith him they went to Sudharshan Park. It is stated that there
they met with Gurmeet Singh to whom IO has shown photocopy of
ration card. It is stated that he alongwith IO and complainant went to
Mangolpuri. It is stated that on seeing a person complainant pointed out
that this is the person who has cheated him. It is stated that they
arrested that person i.e. accused Bhagat Singh. Thereafter, they
recovered the articles from the house of the accused. The recovered
T.V. and fridge were taken into police possession vide seizure memo
already Ex. PW4/E. It is stated that accused also got some cheques
recovered from the house of the accused which were taken into police
possession vide seizure memo Ex. PW4/D. It is stated that the accused
had also pointed out the shop at Sudama Market from where he
(accused) had purchased the T.V and fridge. The pointing out memo in
this regard is Ex. PW4/F. After medical examination, accused was
lodged in lockup and recovered articles were deposited in malkhana.
This witness was cross examined by Ld. APP for the state wherein this
witness accepted that the IO had recorded his statement. It is accepted
that the personal search was conducted vide personal search memo as
Ex. PW5/A. It is accepted that disclosure statement of accused was
also recorded and same is Ex. PW4/D. It is stated that the IO took the
specimen signatures and the handwriting of the accused at S-1, S-2

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and S-3 and the same is Ex. PW5/1, Ex. PW5/2 and Ex. PW5/3
respectively. In his cross examination, he could not tell the time when
he reached the spot or when the disclosure statement of accused was
recorded. He could not tell the time when they reached the house of the
accused. It is accepted by him that the place of recovery was thickly
populated area. This witness also exhibited the cheques bearing no.
527718 and 527719 as Ex. P-3 and Ex. P-2. He could not tell whether
the sample specimen signatures of the accused were sealed or not. He
denied the suggestion that the specimen signatures and handwriting of
the accused were not taken in his presence.
9.

PW-6 HC T.D. Reddy deposed that on 04.09.2001 some


documents/ exhibits were handed over to him related to the present
case for depositing in the GEQD (Govt. Examiner Question Document),
Hyderabad. Thereafter, he deposited the said documents in the GEQD,
Hyderabad and came back to Delhi. IO recorded his statement on
17.09.2001. It is stated that during the period, the said documents were
in his possession / custody, no tempering was done by him or any
other person in the same. In his cross examination, he could not tell if
any receiving was taken by him from GEQD, Hyderabad. It is stated by
him that the documents were in sealed condition however, he could not
remember the mark of the seal.

10.

PW-7 Sh. Y Surya Prasad deposed that in the year 2001 he was

working as Assistant Government Examiner of Questioned Documents


at CFSL, Hyderabad. It is stated that he has examined questioned
documents and specimen provided by the police in the present case
and had given his report which is on record. The report is hereby
Ex.PW7/A (collectively with the letter written by Sh. D.D. Goyal
alongwith questioned documents and specimen).

In his cross

examination, it is stated by him that they used to receive documents in


loose condition as they had to check the same at the time of receiving.
Thus, documents in the present case were not received in sealed
condition. It is stated by him that the lab has received questioned
document and specimen document with a covering letter, he exhibited
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the copy of covering letter as Ex. PW7/B (OSR). It is stated by him that
the specimen were not taken in his presence and the same were
provided to them by the police officials.
11.

No other witness was examined and PE was closed.

THE DEFENCE :
12.

Statement of accused U/s 313 of Cr.P.C. was recorded thrice, that

is, on 07.07.2015, 29.03.2016 and 13.05.2016, in which all the


incriminating evidence were put to the accused. Accused stated that he
is innocent and has been falsely implicated in the present case. It is
stated by him that no specimen signatures were taken from him. It is
stated that the documents are fabricated. Accused does not opted to
lead defence evidence.
THE ARGUMENTS:
13.

Ld. APP for State has argued that witnesses have supported the

prosecution and their testimonies have remained unrebutted. That on a


combined reading of testimonies of prosecution witnesses, offence
under section U/s 420/468/471 IPC are proved beyond reasonable
doubt.
14.

On the other hand, Ld. counsel for accused has stated that there is

no legally sustainable evidence against the accused. It is argued that


the investigation has been conducted in a partial manner just to favour
the complainant. It is argued that no specimen signatures of the
accused were ever taken. It is further argued that the alleged TV and
refrigerator were never produced before the court. It is argued by him
that accused has been falsely implicated in the present case at the
instance of the complainant.
THE FINDINGS:
Offence U/s 420/468/471 IPC:
15.

Arguments adduced by Ld. APP for State and Ld. Defence Counsel

for the accused have been heard. Evidences and documents on record
perused carefully.
16.

In order to bring home guilt of the accused, the prosecution was

required to prove following ingredients :FIRNo.653/2000,PSMotiNagar

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a). The accused cheated and thereby dishonestly induced the


complainant to deliver a Videocon TV and Whirlpool refrigerator to him
by using a forged cheque.
b). Cheating requires:I). Deception of any person.
II).(a). Fraudulently and dishonestly inducing that person.
i). To deliver any property to any person; or
ii). To consent that any person shall retain any property; or
(b). Intentionally inducing to do or omit to do anything which he
would not do or omit if he were not so deceived, and which act
or omission causes or likely to cause damage or harm to that
person in body, mind, reputation or property
17.

To hold a person guilty of cheating, it is necessary to show that he

had fraudulent and dishonest intention at the time of making the


promise/inducement. From change in circumstances subsequently a
culpable intention right at the beginning, that is, when he made the
promise/inducement cannot be presumed. Thus, the prosecution has to
show that at the time of taking the Videocon TV and Whirlpool
Refrigerator from the complainant the present accused was acting
fraudulently/dishonestly.
18.

To prove offence U/s 468 IPC, the prosecution is required to prove

that the cheque was forged by the accused, however, to prove offence
U/s 471 IPC prosecution is required to prove that accused fraudulently or
dishonestly used the forged cheque as genuine despite knowing or
having reasons to believe the same to be forged. The condition precedent
for an offence u/s 468 and 471 IPC is forgery. The condition precedent of
forgery is making a false document as defined u/s 464 of IPC.

19.

Hon'ble Supreme Court of India in a very lucid manner has described

what may be called a false document in a case titled as Mohd. Ibrahim v.


State of Bihar (2009) 8 SCC 751 wherein it was held by the court:
11. In short, a person is said to have made a
'false document', if (i) he made or executed a
document claiming to be someone else or
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authorised by someone else; or (ii) he altered or


tampered a document; or (iii) he obtained a
document by practicing deception, or from a
person not in control of his senses.
12. The sale deeds executed by first appellant,
clearly and obviously do not fall under the second
and third categories of 'false documents'. It
therefore remains to be seen whether the claim of
the complainant that the execution of sale deeds
by the first accused, who was in no way
connected with the land, amounted to committing
forgery of the documents with the intention of
taking possession of complainant's land (and that
accused 2 to 5 as the purchaser, witness, scribe
and stamp vendor colluded with first accused in
execution and registration of the said sale deeds)
would bring the case under the first category.
There is a fundamental difference between a
person executing a sale deed claiming that the
property conveyed is his property, and a person
executing a sale deed by impersonating the
owner or falsely claiming to be authorised or
empowered by the owner, to execute the deed on
owner's behalf. When a person executes a
document conveying a property describing it as
his, there are two possibilities. The first is that he
believes that the property actually belongs to him.
The second is that he may be dishonestly or
fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under
first category of 'false documents', it is not
sufficient that a document has been made or
executed dishonestly or fraudulently. There is a
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further requirement that it should have been made


with the intention of causing it to be believed that
such document was made or executed by, or by
the authority of a person, by whom or by whose
authority he knows that it was not made or
executed. When a document is executed by a
person claiming a property which is not his, he is
not claiming that he is someone else nor is he
claiming that he is authorised by someone else.
Therefore,

execution

of

such

document

(purporting to convey some property of which he


is not the owner) is not execution of a false
document as defined under section 464 of the
code. If what is executed is not a false document,
there is no forgery. If there is no forgery, then
neither section 467 nor section 471 of the code
are attracted.
13. xxx
14. When a sale deed is executed conveying a
property claiming ownership thereto, it may be
possible for the purchaser under such sale deed,
to allege that the vendor has cheated him by
making a false representation of ownership and
fraudulently induced him to part with the sale
consideration.

20.

Coming to the facts of the present case, in the present case as well

the accused handed over a cheque of someone else's account by putting


his own signature on the same, thus, though the cheque was made
fraudulently and dishonestly, however, it had not been made with the
intention of causing it to be believed that the cheque was made or
executed by, or by the authority of a person, by whom or by whose
authority he knows that it was not made or executed. When accused
signed / used the cheque in question he was not claiming to be someone
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else or to be authorized by someone else. Thus, the cheque would not fall
within the definition of false document as defined u/s 464 IPC and
explained in the above stated case decided by Hon'ble Supreme Court of
India. Since, the cheuque in question cannot be termed as a false
document, hence, charges for the commission of offence punishable u/s
468/471 IPC will not sustain.

21.

In the present case, complainant PW4 Sh. Ashok Anand has

categorically stated that he was running a shop of selling electronics.


On 03.12.2000, the present accused, correctly identified, induced him
to handover/sell a Videocon TV and Whirlpool Refrigerator, the total
cost of the same came to Rs. 18,590/-. Accused paid a sum of Rs.
1,790/- in cash and issued a cheque bearing no. 527720 (issued on
Central Bank of India, Janak Puri branch) for payment of the remaining
amount. It has been categorically proved by FSL report Ex. PW7/A that
the cheque bearing no. 527720 was bearing handwriting and signature
of the accused. It was proved by PW-2 Sh. R.A. Mittal, official from
Central Bank of India that the cheque bearing no. 527720 (i.e. including
the cheque in question) were issued to one Reetica as per the cheque
register. PW-3 Sh. B.R. Meena, official from Bank of India, Kirti Nagar
Branch, i.e. the bank of the complainant proves that the cheque bearing
no. 527720 was dishonoured due to the reason lost cheque,
fraudulently issued as per cheque returning memo Ex. PW2/C. Thus, it
is proved that accused has misused the cheque of some one else's
account by putting his signatures on the same and handing over the
same to the complainant. Thus, the accused cheated the complainant
by making a false representation that the cheque belongs to his
account and thereby fraudulently induced him to part with the Videocon
TV and Whirlpool Refrigerator. Thus, all the ingredients of offence
punishable U/s 420 IPC are proved in the present case. The testimony
of the complainant proves the inducement made by the accused,
delivery of property made by the complainant resulting into wrongful
loss to the complainant.

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22.

The intention of the accused was fraudulent since the very

beginning as the cheque handed over by the accused to the


complainant does not belongs to him. Even in his statement recorded
u/s 313 Cr.P.C accused never claimed that the cheque belongs to his
account. Further, despite opportunity accused never led any evidence
to prove that the cheque was from his account.
23.

The

contention

of

the

accused

that

the

specimen

signatures/handwriting whereby the signatures/handwriting on the


cheque were compared were not taken from him. This contention of the
defence is not tenable in view of the testimony of PW-5 Ct. Santosh
Pandey who stated that on 13.12.2000 IO of the case had taken
specimen signature/handwriting of the accused in his presence.
24.

The accused taken a defence that the alleged Whirlpool refrigerator

and Videocon TV were never been in existence and that is why they
were not produced before the Court, even the complainant could not
show any document to prove existence of such Videocon TV and
Whirlpool Refrigerator, hence, the case of the prosecution is not
probable. This defence of the accused is also not tenable as the said
Videocon TV and Whirlpool Refrigerator were delivered to the accused
vide bill no. 094 and the bill is also bearing signatures of the accused.
The said signatures are also verified by the CFSL to be put by the
accused only. Further, non production of the Videocon TV and
Whirlpool refrigerator is not fatal to the case of the prosecution. As the
accused in the present case is charged with the commission of offence
punishable u/s 420 IPC and the offence punishable u/s 420 IPC does
not require recovery of the articles handed over after cheating. The
offence of cheating is completed by parting with the property under the
fraudulent inducement made by the accused. For the fulfillment of
ingredients of section 420 IPC it is not required that the property has to
be recovered from the accused.
25.

The discrepancies pointed out by Ld. defence counsel in the

investigation that no document has been filed on record to prove


existence of any such Videocon TV and Whirlpool Refrigrator is only a
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technical fault on the part of police in conducting investigation. These


defects do not cast a reasonable doubt on the case of prosecution. It is
established principle of law that the complainant shall not suffer due to
the conduct of the IO and the accused shall not be allowed to take
benefit of the faulty investigation of the IO. It has been held by the
Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of
Madhya Pradesh (2013) 7 SCC 278 that:
The

settle

position of law is that the

prosecution is required to establish the guilt of


the

accused

beyond

reasonable

doubt

by

adducing evidence. Hence, if the prosecution in a


given case adduces evidence to establish the
guilt of the accused beyond reasonable doubt, the
court cannot acquit the accused on the ground
that there are some defects in the investigation,
but if the defects in the investigation are such
as to cast a reasonable doubt in the prosecution
case, then of course the accused is entitled to
acquittal because of such doubt.
26.

The testimony of PW4/Complainant Sh. Ashok Anand is clear,

consistent and implicating the accused. He categorically identified the


accused to be the person who dishonestly induced him to part with one
Videocon TV and Whirlpool Refrigerator by handing over a cheque of
someone else's account by putting his own signatures. It is not the case
of the accused that complainant had any enmity with the accused so
that he would falsely implicate the accused.
27.

The testimony of the complainant is consistent with the evidence of

other witnesses i.e the police officials on all material particulars.


Therefore, apart from certain minor inconsistencies, which are likely in
the evidence of a natural witness and due to lapse of time since the
date of accident and examination of witnesses in court, the testimonies
of PWs are coherent and consistent and are implicating the accused.

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28.

Thus, from the above stated facts and discussions, it has been

proved beyond reasonable doubt that accused has committed an


offence U/s 420 IPC by dishonestly inducing the complainant to part
with a Videocon TV and Whirlpool Refrigerator.
29.

The alleged cheque handed over by the accused to the complainant

bearing his signatures but belonging to some one else's account does
not fall within any of the categories of false document illustrated in
Section 464 IPC. Thus, the ingredients of offence of forgery punishable
u/s 468 IPC and the offence of using forged document punishable u/s
471 IPC are not fulfilled in the present case.
30.

In view of the above stated discussion the undersigned is of the

considered opinion that the offences punishable u/s 468/471 IPC are
not made out against the accused. Thus, he is hereby acquitted for
commission of offence U/s 468 and 471 IPC in respect of the present
case.
31.

However, in the considered opinion of this court, all the ingredients

of Section 420 IPC are satisfied. As such accused Bhagat Singh is


convicted for the offence of cheating punishable U/s 420 IPC.
32.

Copy of the judgment be given to him free of cost.

ANNOUNCED IN THE OPEN


COURT ON 07.06.2016

(GAJENDER SINGH NAGAR)


MM-04 (WEST)/DELHI

Containing 14 pages all signed by the presiding officer.

(GAJENDER SINGH NAGAR)


MM-04 (WEST)/DELHI

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