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2019 DIGILAW 47 (JK)

Kulvinder Kour v. Daljeet Singh

2019-02-01

SANJAY KUMAR GUPTA

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JUDGMENT : Sanjay Kumar Gupta, J. The instant Criminal Revision has been preferred against order dated 07.02.2014 passed by the learned Principal Sessions Judge, Samba in File No.18/Session a case titled "State v Daljeet Singh and another? whereby the trial court has discharged respondent No.1-accused (Daljeet Singh) from the offences under Sections 419/420/465/467/468/471 RPC leveled against him. 2. The petitioner being aggrieved of the impugned order has challenged the same in the instant criminal revision on the following grounds: (i) That the order is against the provisions of law and facts. So the same is not sustainable. (ii) That the Hon'ble Court has not appreciated the evidence adduced by the prosecution which fully inspired that the respondents have committed the offence. The Hon'ble Court has not fully appreciated the evidence and brushed aside the evidence thereby discharging respondent No.1 from the charges under Sections 419/420/465/467/468/471 RPC while from the evidence adduced by the prosecution clearly envisaged that the offence has been committed and the respondents have intentionally and deliberately committed the fraud by obtaining loan in the name of the petitioner and impersonated by putting forged signatures on the loan papers. So the order is not sustainable and is liable to be set aside. (iii) That the Hon'ble Court has not appreciated the documents, copy of the Challan and the statement of witnesses, which clearly envisaged that the offences under Sections 419/420/465/467/468/471 RPC have been committed by respondent No.1. The Hon'ble Court has discharged respondent No.1 without appreciating the evidence recoded under Section 161 Cr.P.C. All the witnesses deposed that respondent No.1 has given file of loan to respondent No.2 when it is clear from the statement of witnesses that the petitioner never visited the bank for obtaining any loan while there is procedure for obtaining loan. The person, who has to obtain loan, put his/her signatures on the documents so prepared in presence of the concerned Bank staff member and also has to complete all the formalities for obtaining such loan. The petitioner never went to the Bank for obtaining the said loan which is clear from the statement of the witnesses, who are the bank employees. The Hon'ble Court without appreciating all this, has discharged the accused at the stage of framing of charge itself without conducting any trial in the case. So the order is not sustainable. The petitioner never went to the Bank for obtaining the said loan which is clear from the statement of the witnesses, who are the bank employees. The Hon'ble Court without appreciating all this, has discharged the accused at the stage of framing of charge itself without conducting any trial in the case. So the order is not sustainable. (iv) That the Hon'ble Court has not appreciated the FSL report while it is clear from the FSL report that the signatures on the loan documents are of the respondent No.1 and not of the petitioner. The Hon'ble Court has not made any mention of FSL report in the judgment and discharged respondent No.1 without appreciating the evidence recorded by the witnesses while it is clear from the statement of witnesses that respondent No.1 gave the loan file to respondent No.2 who has managed to prepare false and forged documents fraudulently. The Hon'ble Court without appreciating the evidence, discharged the respondents No.1 of the charges for the commission of offences under Sections 419/420/465/467/468/471 RPC. So the order is not sustainable. (v) That the Hon'ble Court has not appreciated the statement of the petitioner and her parents that earlier, faced with the situation that the petitioner has not obtained any 1aon the Bank, approached the Manager of the Bank, who issued NOC to the effect that the petitioner has not obtained any kind of loan from the Bank. On what basis the Bank has issued recovery notice when the Bank has already issued NOC in favour of the petitioner and this has been proved by the witnesses. The Hon'ble Court without appreciating the record and the evidence recorded by the witnesses, discharged respondent No.1. So the order is not sustainable. (vi) That the Hon'ble Court has properly appreciated the ingredients of Section 419 RPC-Punishment for cheating by personation-Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or fine, or with both. In the present case, respondent No. 1 cheated the petitioner by personation. (vi) That the Hon'ble Court has properly appreciated the ingredients of Section 419 RPC-Punishment for cheating by personation-Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or fine, or with both. In the present case, respondent No. 1 cheated the petitioner by personation. The Hon'ble Court has also not appreciated the ingredients of Section 420 RPC because under Section 420 RPC, Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to my person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. In the present case, respondent No.1 cheated the petitioner by dishonestly inducing the delivery of loan file to respondent No.2 and helped respondent No. 2 to make false and forged loan case in favour of the petitioner, which fact is proved by all the three witnesses, who are the Bank employees. The Hon’ble Court without appreciating all this discharged the respondent No.1 at the charge framing stage itself. So the order is not sustainable. (vii) That the Hon’ble Court has also not appreciating the ingredients of Section 465,467, 468 and 471 RPC because as per Section 465 RPC punishment for forgery. Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to (two years) or with fine, or with both. So the order is not sustainable. (vii) That the Hon’ble Court has also not appreciating the ingredients of Section 465,467, 468 and 471 RPC because as per Section 465 RPC punishment for forgery. Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to (two years) or with fine, or with both. Under Section 467 RPC-Forgery of valuable Security, Will etc.-Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property or valuable security, or any document purporting to be an Acquaintance or receipt acknowledging the payment of money, or an Acquaintance or receipt for the delivery of any moveable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. Under Section 468 RPC-Forgery for purpose of cheating-Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and under Section 471 RPC-Using a genuine a forged document or electronic record-Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document or electronic record. In the present case, respondent No.1 has committed the offence under Sections 419/420/465/467/468/471 RPC and these offences have been proved by all the witnesses in their statements but the Hon'ble Court without appreciating the evidence discharged respondent No.1. So the order is not sustainable. 3. In the present case, respondent No.1 has committed the offence under Sections 419/420/465/467/468/471 RPC and these offences have been proved by all the witnesses in their statements but the Hon'ble Court without appreciating the evidence discharged respondent No.1. So the order is not sustainable. 3. Briefly the case of the prosecution is that on 28.01.2013 a complaint was moved by the complainant Kulvinder Kour W/o Jagdeep Singh R/o At present Vijaypur Tehsil and District Samba, before the court of CJM, Samba, which came to be transferred to the court of Munsiff, JMIC, Samba, who, in turn forwarded the same to the SHO P/S Ramgarh under section 156 (3) Cr.P.C. In the complaint, it was alleged that the marriage between the petitioner and respondent No.2 was solemnized in accordance with Hindu Rites and customs on 29.11.2007 at Ward No.11 Vijaypur, Tehsil and District Samba. That after the marriage, respondent No.2 along with his family members started treating the petitioner with cruelty and compelled the petitioner to bring more dowry from her parents but since the complainant’s parents were not in a position to meet their demand, as such, she was thrown out from her matrimonial home and since then she is at the mercy of her poor parents. The complainant along with her parents tried to resolve the matter amicably with respondent No.2 and his parents, however, they threatened that the complainant had obtained a loan from Jammu Central Cooperative Bank Branch Ramgarh and she has become defaulter, and unless and until the said loan is not liquidated by her she will not be taken into matrimonial fold of accused No.2. That the complainant shocked to know about the loan obtained in her name and immediately approached the accused No. 1, who was posted as Branch Manager in the said Bank at the relevant time. That initially he did not pay any heed to the complainant but when she threatened to approach his higher authority for his non-cooperation he issued a NOC on 15.07.2010 with respect to the aforesaid loan. That the complainant was again shocked to know when accused No.1 and other staff of the Bank came to the parental house of the complainant at Vijaypur and handed over a recovery notice to the complainant with respect to the above said loan. That the complainant was again shocked to know when accused No.1 and other staff of the Bank came to the parental house of the complainant at Vijaypur and handed over a recovery notice to the complainant with respect to the above said loan. That when the father of the complainant shown them the NOC, the accused No.1 and staff threatened the complainant of dire consequences if she did not repay the recovery of availed loan facility of Rs. 32,000/-. Accused no.1 also stated that the complainant had availed aforesaid loan as M/s. M.T. Retail Traders loan and he has also stated that the complainant’s amount is credited in accused No.2's loan account on 31.03.2010 and he has not repaid all her loan and still Rs. 34,700/-is recoverable from the complainant. That accused No.2 having hatched a criminal conspiracy with accused No.1, prepared a false, forged loan application, bills, vouchers in the name of the complainant for sanctioning and obtaining Trade loan despite the fact that she was not running any type of business or shop anywhere; that neither she has signed any documents nor visited the Jammu Central Cooperative Bank Branch, Ramgarh at any point of time. That the accused persons not only cheated by impersonation but with dishonest intention induced and cheated the complainant, made false documents which are signed by the accused persons with seal authorizing by the accused No.1 to the accused No.2 to transfer the false loan amount in the name of the complainant and misappropriated the public money of the bank in the name of the complainant and the accused No.1 disbursed the said loan amount to the accused No.2. That the forged loan application and other documents prepared in the bank at the request of accused No.2 as both the accused conspired with each other without the notice of Loan Manager and the documents such as loan application and other documents were handed over to the accused No.2 by the accused No.1 to get the signatures of the complainant on them for further processing the case tec. 4. Upon this complaint, a case was registered with P/S Ramgarh against the accused persons under Sections 419/420/465/467/468/471 RPC and investigation started. 4. Upon this complaint, a case was registered with P/S Ramgarh against the accused persons under Sections 419/420/465/467/468/471 RPC and investigation started. After thorough investigation of the matter, as per the charge sheet filed by the police, it came to the fore that the accused No.1 Daljeet Singh, Branch Manager Jammu Central Co-operative Bank Branch Ramgarh without calling the complainant in the bank in order to cheat the complainant had prepared a loan file and handed over the same to the accused No.2, who, himself signed the same in place of the complainant in order to cheat the complainant as well as to commit fraud with her and thereafter he obtained the loan amount of Rs. 32000/-. After investigation, the instant challan under Sections419/420/465/467/468/471 RPC came to be presented in the court of learned CJM, Samba for judicial determination, who, in turn, transferred the same to the court of learned JMIC (Munsiff), Samba for disposal under law. Since the offence under Section 467 RPC was exclusively triable by the court of Sessions, as such, the case committed to it. 5. Considered the contentions of learned counsel for the petitioner. From perusal of the order of discharge, it is evident that after presentation of the challan, accused No.2 was proceeded u/s 512 Cr.P.C. and court below after hearing the arguments, discharged the respondent-Daljeet Singh from the offence vide order impugned dated 07.02.2014 on the ground that no offence is made out against him. 6. During the course of arguments, learned counsel for the petitioner has mainly relied upon the statement of PW-Ram Lal Verma, Loan Manager in the Jammu Central Cooperative Bank, Branch Ramgarh. It is apt to reproduce the statement of PW-Ram Lal Verma, as under: "PW- Ram Lal Verma stated that he has been working as a Loan Manager in the Jammu Central Cooperative Bank, Branch Ramgarh for the last about 3 years. On 30.02.2010 one Jagdeep Singh S/o Harnam Singh R/o Banachak came to him along with an application for sanctioning loan to the tune of Rs. 32,000/- in the name of his wife. He prepared the loan form in the name of Kulvinder Kour and thereafter asked Jagdeep Singh to bring her in the bank in order to sign the loan documents. 32,000/- in the name of his wife. He prepared the loan form in the name of Kulvinder Kour and thereafter asked Jagdeep Singh to bring her in the bank in order to sign the loan documents. Upon this Jagdeep Singh told that his wife feels ashamed to come in the bank and asked him to hand over the loan file to him and he would bring the same back after getting the loan documents signed by Kulvinder Kour. Upon this he thought that he is not known to him as such having crossed the loan documents he threw them away. Thereafter Jagdeep Singh approached the Branch Manager Daljeet Singh, he said that he was well known to him so he would sanction the loan. The Branch Manager Daljeet Sigh prepared the loan file and handed over the same to him to get the same signed. Thereafter having taken the loan file Jagdeep Singh went to his house and after two hours he came back and presented the file before the Branch Manager Daljeet Singh. Thereafter the Branch Manager Daljeet Singh sanctioned the loan to the tune of Rs. 32,000/- in the name of Kulvinder Kour as it was a small amount". 7. In order to appreciate the contentions of the parties, it may be noticed that Section 268 and 269 of Cr.P.C relate to the trial of cases before the courts of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote sections 268 and 269 of Cr.P.C. as under: - "268 Discharges: If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing. 269 Framing of charge (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial or warrant cases instituted on police report, (b) is exclusively triable by the Court , he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 8. A conjoint reading of section 268 and 269 of Cr.P.C. would reveal that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and if after such consideration and hearing, judge is of the opinion that there is ground for presuming that accused has committed offence, he may frame charges against the accused or transfer the case to CJM or Judicial Magistrate, if he is of the opinion that offence made out against the accused is triable by a Magistrate. 9. At the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. 10. 9. At the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. 10. In case titled Sajjan Kumar v. Central Bureau of Investigation reported in, (2010) 3 SCC(Cri) 1371, the Apex Court on considering its previous judgments rendered on the point, has laid down the following principles to be followed while considering the prosecution case for charge:- (i) The Judge while considering the question of framing the charges under section 227 Cr.P.C has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the material placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 11. So law can be summarized that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. 12. Respondent No.1 has been booked under sections 419/420/465/467/468/471 RPC along-with another accused. 12. Respondent No.1 has been booked under sections 419/420/465/467/468/471 RPC along-with another accused. So substantial offence for which respondent is to be charged is forgery. Forgery has been defined under Section 463 RPC. "463. Forgery. Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." 13. Making of false document is defined in Section 464 of RPC. It reads: "Sec.464. Making a false document. [A person is said to make a false document or false electronic record- First- who dishonestly or fraudulently- (a) makes, signs seals or executes a document or a part of a document; (b) makes or transmits any electronic record or a part of any electronic record; (c) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution a document or the authenticity of the digital signature; with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signal, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by 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 or an electronic record or to affix his digital signature on an electronic record, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration]." 14. As per sections 463/464 RPC, the person who is charged with offence of forgery has to make sign, seal and to execute a document, which he knows that it is false. As per sections 463/464 RPC, the person who is charged with offence of forgery has to make sign, seal and to execute a document, which he knows that it is false. To attract sections 467 and 468 there has to be alteration of document dishonestly and fraudulently. Further, if the document is to be altered, it has to be some gain or with such objective on the part of the accused. For attracting section 471 RPC this forged document should have been used as genuine document. 15. In present case, after registration of FIR and investigation police concluded that offences 419/420/465/467/468/471 RPC were made out against respondent along-with another accused-Jagdeep Singh, the husband of complainant. The allegation against respondent No.1 is that on 30.02.2010 accused Jagdeep Singh S/o Harnam Singh R/o Banachak came to Central Co-operative Bank Ramgarh; said accused produced an application for sanctioning loan to the tune of Rs. 32,000/- in the name of his wife Kulvinder Kour (complainant) before PW Ram Lal Verma. PW Ram Lal prepared the loan form and thereafter asked Jagdeep Singh accused to bring his wife in the bank in order to sign the loan documents; upon this, accused-Jagdeep Singh told that his wife feels ashamed to come in the bank and asked him to hand over the loan file to him and he would bring the same back after getting the loan documents signed by Kulvinder Kour. Upon which, PW Ram Lal thought that he is not known to him as such having crossed the loan documents he threw them away. Thereafter accused-Jagdeep Singh approached the Branch Manager Daljeet Singh respondent No.1 herein, he said that he was well known to him so he would sanction the loan. The Branch Manager Daljeet Singh prepared the loan file and handed over the same to said Jagdeep Singh to get the same signed by his wife. Thereafter Jagdeep Singh went to his house and after two hours, he came back and presented the file before the Branch Manager Daljeet Singh. Thereafter the Branch Manager Daljeet Singh sanctioned the loan to the tune of Rs. 32,000/- in the name of Kulvinder Kour as it was a small amount. 16. Thereafter Jagdeep Singh went to his house and after two hours, he came back and presented the file before the Branch Manager Daljeet Singh. Thereafter the Branch Manager Daljeet Singh sanctioned the loan to the tune of Rs. 32,000/- in the name of Kulvinder Kour as it was a small amount. 16. Except these allegations, there is nothing on record from which it can be inferred that respondent committed any criminal conspiracy with main accused or had intention of cheating and for that purpose he prepared false documents or forged the documents; used them and caused loss to bank. For charging the accused under any of penal section, there should be some material on record for presuming that the accused has committed an offence for which he is to be charged. Criminal court has not to act as post office and become mouth piece of prosecution and frame charge at the wish of prosecution. Calling a person to face charges without any sufficient evidence would amount to violation of fundamental right. When court is fairly certain that there is no chance of conviction even if all the evidence is considered as it is without cross examination, then court can certainly discharge the accused under section 268 Cr.P.C. 17. In view of above, I don’t find any infirmity of law and facts in order of court below. Hence this petition is dismissed.