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2000 DIGILAW 488 (PNJ)

Raj Kumar v. State of Punjab/C. B. I.

2000-05-05

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a criminal revision filed by Raj Kumar and has been directed against the judgment dated 14.10.1999 passed by the Court of Additional Sessions Judge, Patiala, who affirmed the judgment of conviction and order of sentence dated 28.3.1992 passed by the Court of Special Judicial Magistrate, Patiala, C.B.I., Punjab (S. Bhupinder Singh). 2. Some facts can be noticed in the following manner :- Border Security Force, New Delhi placed a demand for the supply of woollen jerseys to the office of Director General of Supplies and Disposal, Parliament Street, New Delhi and as a consequence the office of Director General, Supplies and Disposal invited tenders and after completion of various formalities awarded a contract for the supply of the woollen jerseys to the consignees detailed below, to firm M/s Shivalik Knitting Mills, B-32/36, Janta Colony, Basti Jodhewal, Ludhiana, Punjab, vide acceptance of tender No. WL- 7/225/115/29.7.83/61/ETC-308/ED 23.12.82/002/COAD dated 27.7.1984 :- Sr. No. Name and Address of the consignee 1. I.G.B.S.F. Rajasthan, Jodhpur; 2. I.G.B.S.F. Punjab, Jalandhar Cantt; 3. A.D.(P) HQ. IG, BSF/West Bengal, 2-B, Lord Sinha Road, Calcutta; 4. JAD(P) BSF, Narangi Road, New Guwahati; 5. Commdt. 25, BN, BSF, Chhawla Camp, Nazafgarh Road, New Delhi; 6. Commdt. 88, BN, Bhitaura Camp, Bareilly; 7. Director, B.S.F. Academy, Tikampur, Gawalior. Clause 19(b) of the contract provided for payment of 95% of the price of the goods of each consignment to the consigner on proof of despatch of the goods/stores to the consignee and on production of Inspection Note issued by the Inspector. Balance of 5% of the price of goods was to be paid to the consigner on the receipt of a certificate from the consignee in proof of receipt of consignment in good condition. On 30.4.1985, Assistant Inspecting Officer (Tax) Office of the Deputy Director of Inspection (Tex) (DGS&D) Ludhiana, namely, Gurbhagwant Singh Sandhu inspected a lot of 1540 jerseys packed in 31 bales within the premises of firm M/s Shivalik Knitting Mills, Basti Jodhewal, Ludhiana, in the presence of the proprietor of the firm, namely, Raj Kumar Gupta, the present petitioner. On the basis of inspection, inspection note dated 30.4.1985 was prepared on the prescribed proforma indicating the names of the consignees and the consignee as also AT number etc. On the basis of inspection, inspection note dated 30.4.1985 was prepared on the prescribed proforma indicating the names of the consignees and the consignee as also AT number etc. Thereafter the aforesaid firm booked that consignment of 31 bales of jerseys with the Department of Railways at Ludhiana against Railway Receipt No. 706974 dated June 14, 1985, Ex-Ludhiana to Howrah with Nirmal Tej Singh Bhalla, Goods Supervisor and the receipt-copy of the said receipt was handed over with the representative of the firm. The case of the prosecution further is that after 3/4 hours of the booking of the aforesaid consignment, the consigner made an application dated 14.6.1985 on the letter head of the firm and signed by its proprietor, the petitioner, to the effect that consignment in question had been mistakenly booked by goods train while it was to be carried by a passenger train and requested for the return of the booked goods with Nirmal Tej Singh Bhalla, Goods Supervisor, Railways, Ludhiana, who acted upon the request and cancelled the railway receipt No. 706974 dated 14.6.1985 and returned the goods to the consigner. He also made an entry in the loading-book about the cancellation of the said railway receipt. In fact, these goods were not despatched either from the goods shed or from the parcel office of Northern Railway, Ludhiana, from where packages are booked by the passenger trains. However, the present petitioner submitted Bill No. 1/85-86 dated 14.6.1985 for a sum of Rs. 64,079.40 representing 95% of the price of the goods, and enclosed therewith an attested photostat copy of the railway receipt which was got cancelled by him, inspection note dated 30.4.1985. This bill was submitted by the present petitioner only with a view to cheat the Government of India. The aforesaid bill, along with its enclosure, was received in the office of Controller of Accounts, Department of Supplies, Akbar Road, New Delhi. It was ultimately passed and draft No. 265706 dated 23.8.1985 for a sum of Rs. 64,079/- favouring M/s Shivalik Knitting Mills, Ludhiana was prepared and issued. The petitioner appointed M/s Indian Oversea Bank, Clock Tower, Ludhiana as its attorney to receive the payment on its behalf. The draft was duly accounted for in the books of Indian Oversea Bank, Ludhiana on 1.9.1985. In fact, firm M/s Shivalik Knitting Mills had already submitted bill amounting to Rs. The petitioner appointed M/s Indian Oversea Bank, Clock Tower, Ludhiana as its attorney to receive the payment on its behalf. The draft was duly accounted for in the books of Indian Oversea Bank, Ludhiana on 1.9.1985. In fact, firm M/s Shivalik Knitting Mills had already submitted bill amounting to Rs. 64,079/- to the aforesaid Bank on 17.6.1985 and it was purchased by the said Bank and amount credited to their cash credit amount. This amount was withdrawn by the firm through different cheques between June 18, 1995 to June 5, 1985. All these cheques were signed by the petitioner. Non-receipt of the goods and the railway receipt was confirmed by the consignee vide letter dated 11.4.1986. The case of the prosecution further proceeds that on 30.4.1985 another 18 bales containing woollen jerseys for despatch to the office of Inspector General of B.S.F. Jodhpur, Rajasthan were also got inspected by the firm of the petitioner from Assistant Inspecting Officer vide inspection note ated 30.4.1985 and the goods were booked from Railway Booking Agency, Ludhiana vide railway receipt No. 191622 dated 30.12.1985, Ex-Ludihana to Jodhpur. Later on, request was received from the firm of the petitioner for cancellation of the railway receipt and return of the goods. The railway receipt was cancelled and goods were returned after realising the godown charges of Rs. 5/-. Vide letter dated 17.9.1987 the consignee informed the Director General of Supplies and Disposal about the non-receipt of the goods. Despite this, the petitioner submitted a bill No. 3/85-86 dated 30.12.1986 for a sum of Rs. 38,947/- and also enclosed the photostat copy of the railway receipt which had already been cancelled. The bill was duly received in the office of Director General of Supplies and Disposal, but the payment was withheld vide letter dated 17.9.1987 regarding non-receipt of the goods. On these broad allegations, the petitioner was charge-sheeted under Section 420 Indian Penal Code with regard to the first consignment and under Section 420/511 Indian Penal Code with regard to the second consignment. Besides, challan was submitted against him under Sections 467, 468 and 471 Indian Penal Code 3. The learned Special Judicial Magistrate, Patiala supplied the copies of the documents to the petitioner and framed the charges under the abovesaid sections. The charges were read over and explained to him, to which he pleaded not guilty and claimed trial. 4. Besides, challan was submitted against him under Sections 467, 468 and 471 Indian Penal Code 3. The learned Special Judicial Magistrate, Patiala supplied the copies of the documents to the petitioner and framed the charges under the abovesaid sections. The charges were read over and explained to him, to which he pleaded not guilty and claimed trial. 4. In order to prove the charges, the prosecution examined as many as 24 witnesses. On the closure of prosecution, statement of the petitioner was recorded under Section 313 Criminal Procedure Code and all the incriminating circumstances appearing in the prosecution evidence were put to him. He denied those circumstances and stated that he was innocent. 5. The learned Magistrate convicted the petitioner under Sections 420, 420/511, 467, 468 and 471 Indian Penal Code and sentenced him to undergo RI for a period of 1-1/2 years and to pay a fine of Rs. 1000/- or in default of payment of fine to further undergo RI for 2 months, under Section 420 Indian Penal Code, RI for 6 months and fine of Rs. 500/-, or in default of payment of fine to further undergo RI for 1 month, under Section 420 read with Section 511 Indian Penal Code; RI for 2 years and fine of Rs. 1,000/-, or in default of payment of fine to further undergo RI for 2 months, under Section 467 Indian Penal Code; RI for 1 year and fine of Rs. 1,000/-, or in default of payment of fine to further undergo RI for 2 months, under Section 468 Indian Penal Code and RI for 2 years and fine of Rs. 1,000/-, or in default of payment of fine to furthers undergo RI for 2 months, under Section 471 Indian Penal Code It was ordered by the learned Magistrate that all the sentences shall run concurrently. 6. The petitioner filed the appeal before the Court of Additional Sessions Judge, Patiala, who vide judgment dated 14.10.1999 dismissed the same and in this manner the present revision, which I am disposing of with the assistance rendered by Mr. J.S. Toor, Advocate on behalf of the petitioner, Mr. Rajan Gupta, Advocate on behalf of the respondent and with their assistance have gone through the record of this file. 7. J.S. Toor, Advocate on behalf of the petitioner, Mr. Rajan Gupta, Advocate on behalf of the respondent and with their assistance have gone through the record of this file. 7. Before I deal with the submissions raised by the learned counsel for the petitioner, it will be appropriate for me to reproduce paras No. 14 to 21 of the judgment of the fist Appellate Court, as under :- "14. As regards the delay there is no doubt that the occurrence took place between the period June 14, 1985 to December 30, 1985 and the FIR has been recorded on June 22, 1988 but the delay in filing of the FIR has been sufficiently explained by the prosecution saying that the offences were committed by the appellant in a very clever and clandestine manner and it was not possible to detect the commission of the offence easily. To reach a definite conclusion the prosecution had to undertake a lot of enquiries and investigation in this case, Authorities of the office of DGS&D had to be questioned and it was ultimately in the year 1988 that too with the help of the Central Bureau of Investigation that the commission of the offences could be detected and it was in these circumstances that FIR was recorded in the year 1988. Even otherwise under Section 467 of the Indian Penal Code the punishment provided is life imprisonment and as per limitation provided under Section 468 of the Code of Criminal Procedure there is no period of limitation for recording as FIR for such an offence. 15. As regards the contention that FIR has been recoded neither by the Railway Authorities nor by the consignee it should suffice to say that criminal law can be set in motion by anybody and it is not dependent upon the accrual of cause of action or locus standi of the person. Thus even this contention is found to be without any substance. 14. Another ground of attack against the impugned judgment and order is that the name of the appellant has been brought in only on the basis of information and none of the witnesses has identified Raj Kumar Gupta appellant. 15. Even this contention of the learned counsel for the appellant is misconceived. 14. Another ground of attack against the impugned judgment and order is that the name of the appellant has been brought in only on the basis of information and none of the witnesses has identified Raj Kumar Gupta appellant. 15. Even this contention of the learned counsel for the appellant is misconceived. The offence of forgery has to be based upon information collected from various sources and as regards identity of the accused/appellant it has been established sufficiently in the form of the identification of handwriting and the signatures and their comparison with the admitted handwriting, firstly by the Government Expert of disputed documents and then by the learned trial Court and, as such personal identification of the appellant was not at all relevant for connecting him with the offences, more so when substantial part of the allegations has been admitted by him in his examination under Section 313 Criminal Procedure Code 16. As aforesaid the appellant has admitted submission of the bill, receipt of the amount of Rs. 64,079/-. It has been proved by the prosecution on record beyond any manner of doubt that a number of letters were written to M/s Shivalik Knitting Mills, Ludhiana also with respect to the non-recepit of the goods by the consignee but the appellant maintained complete silence in the matter and this conduct of the appellant also proves his culpability as far as the commission of offences is concerned. In view of these circumstances proved on record more particularly a report Ex. PW19/A of the Government Examiner of questioned documents holding the signatures on the disputed documents to be those of the appellant, the contention of the learned counsel of the appellant is found to be of no substance. 17. Another fact that deserves a mention here is that the appellant has bought nothing on record to explain his conduct as to why no proceedings were undertaken by him to recover the balance amount of 5% of the value of the goods if he had not committed any forgery or cheating or that he has not claimed any damage against the Railway Authorities for non-delivery of the goods if the booking of the goods was not cancelled by him and the goods were not received by him back. 18. 18. Non-availability of the forwarding note also stands fully explained during the course of trial as it was found by the learned trial Magistrate that back of railway receipt Ex. PW2/A has some gum appearing on it and it shows that the forwarding note must have been pasted on the back of it and it might have been removed inadvertently or even intentionally at the instance of the appellant. 19. Another objection raised by the appellant against the impugned judgment and order is that Ex.PW2/A forms part of a stitched book and it is not possible that it could be given to the appellant as alleged. Even this contention of the learned counsel for the appellant is not convincing for the simple reason that it has not been put on behalf of the appellant to any of the witnesses of the prosecution that Ex.PW2/A was part of this book and it was stitched from the very beginning or that it could not be stitched after completion of the book. Even otherwise this is not such discrepancy that renders the case of the prosecution unworthy of belief. 20. The last submission of Shri M.S. Kamboj that opinion and reason of the Expert have not been put to the appellant in his examination under Section 313 Criminal Procedure Code and vitiates the trial in view of the judgment of the Honble High Court of Punjab and Haryana in the case of Nasib Singh v. State of Haryana reported as 1986(1) PFA page 213. In this case the Honble High Court found that incriminating circumstance against the accused was that he was found selling Kulfi as it contained 5.1 per cent milk fat and 3.2 per cent protein against the minimum prescribed standard of 8.0 per cent and 3.5 per cent respective. But this fact was not put to the accused in his examination under Section 313 Criminal Procedure Code and in this view of the matter the trial was held to be vitiated. 21. But this fact was not put to the accused in his examination under Section 313 Criminal Procedure Code and in this view of the matter the trial was held to be vitiated. 21. This authority is not applicable to the facts and circumstances of the present case because in the case which forms subject matter of this authority the material part of the incriminating circumstances was not put to the accused and he was found to have been prejudiced on that account but in the case in hand what has not been put to the appellant is the opinion and reason of the Expert while conclusions have admittedly been put to the appellant and, as such, no prejudice has been caused to the defence of the appellant in any manner, whatsoever." 8. The learned counsel of the petitioner rightly submitted that both the Courts below committed patent illegality in convicting and sentencing the petitioner under Section 467 Indian Penal Code The counsel submitted that in order to attract the provisions of Section 467 Indian Penal Code, it was obligatory on the part of the prosecution to establish that the receipts which were issued by the Railway Department constitute a valuable security. 9. Valuable security has been defined under Section 30 of the Indian Penal Code, which denotes a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right. When a person deposits goods to a carrier, he only creates a relationship of principal and agent. The ownership always remains either with the consigner or with the consignee for consideration. A receipt is nothing but an acknowledgment of fact that certain goods have been received on behalf of the person who books such goods to the carrier, such as railways or a transporter. By entrusting goods to a carrier, who issues issue a goods receipt or railway receipt, no right is created in it nor such right is transferred or released. The broad allegation against the petitioner is that he cheated the department for a sum of Rs. 64,079.40 when he defrauded the department by obtaining that amount in spite of the fact that the railway receipt which was got issued at one point of time had already been cancelled. 10. The broad allegation against the petitioner is that he cheated the department for a sum of Rs. 64,079.40 when he defrauded the department by obtaining that amount in spite of the fact that the railway receipt which was got issued at one point of time had already been cancelled. 10. The second charge against the petitioner was that he attempted to cheat the department in a similar fashion and had the petitioner been successful, he would have defrauded the department to the tune of Rs. 38,000. The moment it is held that the railway receipt was not a valuable security within the meaning defined in Section 30 of the Indian Penal Code, the conviction of the petitioner under Section 467 Indian Penal Code was not sustainable in the eyes of law. 11. With regard to the offences under Sections 420, 468 and 471 Indian Penal Code, these offences have been committed in the present case. Section 464 of the Indian Penal Code lays down as under :- "Making a false document. - A person is said to make a false document - First - who 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, or makes any mark denoting the execution of a document, with the intention of causing it to be delieved that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not make, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly - who, without lawful authority, dishonestly or fraudulently by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either hy himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration." 12. The evidence on the record shows that the petitioner firstly got the receipts issued. It appears that he got the photostat copies of those receipts in order to commit fraud upon the department again made an application for the cancellation of the receipts which was done in due course but the petitioner took the advantage of the situation and got 95 per cent of the payment on the face value of the bills attached with the receipts with regard to the first consignment. In this manner, the petitioner got the payment by preparing a false document by attesting the same to be true. He got the payment on forged document and, therefore, his conviction could always be maintained under Sections 465, 468 and 471 Indian Penal Code In this view of the matter, the conviction of the petitioner stands modified to Section 465 instead of Section 467 Indian Penal Code So far as the conviction of the petitioner under Section 420 and 420 Section read with Section 511 Indian Penal Code is concerned, it is maintained. Reliance can be placed upon Devinder Dev v. The State of Punjab, 1985(1) Recent C.R. 86, wherein it was held that when an accused forges some applications and certificate to take delivery of articles, such document cannot be regarded as valuable security within the meaning of Section 30 of the Indian Penal Code and the offence was changed to Section 465 from 467 Indian Penal Code 13. The learned counsel for the petitioner then submitted that the petitioner may be visited with leniency in the matter of sentence. Mr. Toor further submitted that the petitioner is suffering the agonies of the criminal proceedings since 1988 when the F.I.R. was registered. He was convicted by the trial court in the year 1992. He is in custody and has not been released on bail by the High Court after the dismissal of his appeal on 14.10.1999. The counsel further submitted that the benefit of probation under Section 360 Criminal Procedure Code may be extended to the petitioner or in the alternative it may be ordered that the sentence already undergone by him is enough in the present case. 14. I partly accept the contention raised by the learned counsel for the petitioner that some leniency can be shown to the petitioner in the matter of sentence. 14. I partly accept the contention raised by the learned counsel for the petitioner that some leniency can be shown to the petitioner in the matter of sentence. I am not inclined to accept the contention of the petitioner that benefit of probation should be extended to him. The petitioner has played a fraud upon a public office. He got unlawful gain to the tune of Rs. 64,079.40 and made an abortive attempt when he wanted to gain another amount of 38,000/-. In such like situation, when a citizen is trying to play a fraud upon the Government by forging a document, probation cannot be granted. Otherwise it will give a wrong signal to the society at large. However, the substantive sentence of the petitioner stands reduced to nine months each under Sections 420, 465, 468 and 471 Indian Penal Code which shall run concurrently with the sentence awarded under Section 420 read with Section 511 Indian Penal Code The petitioner is further directed to pay a sum of Rs. 65,000/- to the department as it has been defrauded of this amount. With the above modification in the matter of sentence, the revision stands dismissed. Revision dismissed.