Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 295 (UTT)

Sushil Kumar v. State of Uttrakhand

2022-09-08

RAVINDRA MAITHANI

body2022
JUDGMENT : The challenge in this revision is made to the following judgment and orders:- (i) judgment and order dated 10.08.2010, passed in Criminal Case No. 1394 of 2010, State vs. Sushil Kumar, (“the case”), passed by the Court of 2nd Additional Civil Judge (Junior Division) /Judicial Magistrate, Roorkee, District Haridwar. By it, the revisionist has been acquitted of the charge under Sections 467, 468 & 471 of IPC. But, he has been convicted under Section 419 & 420 of IPC. The revisionist has been sentenced to three years rigorous imprisonment with a fine of Rs. 1,000/- under Section 419 IPC, with the stipulation that, in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. The revisionist has further been sentenced three years rigorous imprisonment with a fine of Rs. 1,000/- under Section 420 IPC, with the stipulation that, in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. (ii) Judgment and order dated 08.12.2010, passed in Criminal Appeal No. 89 of 2010, Sushil Kumar Vs. State, by the court of 6th Additional Sessions Judge, Haridwar. By it, the appeal has been dismissed and conviction and sentence, as recorded in the case, has been upheld. 2. Facts which emerged from the record are as follows:- (i) On 08.03.2010, an Account No. 091301502526 (“the account”) was opened in the name of Deepak Kumar in the I.C.I.C.I. Bank, Branch Roorkee (“the Bank”). At the time of opening of the account, the Voter I.D. and Driving Licence were presented. (ii) On 04.04.2010, a cheque of Rs. 14,56,000/- of the Punjab National Bank was deposited in the account. It was forged. The account holder was traced, but, he could not be contacted by the bank officials, therefore, the account was marked debit freezed. Subsequently on 12.04.2010, again a cheque amounting to Rs. 18,50,000/- of Bank of Baroda, was presented for clearing in the account of said Deepak Kumar. The bank officials tried to contact the account holder, but, they could not trace him. It so happened that on 15.04.2010. The said Deepak Kumar, according to the FIR, visited the bank for withdrawal of the money. He was questioned by the bank officers, and, at the same time, police was informed. He was arrested. The bank officials tried to contact the account holder, but, they could not trace him. It so happened that on 15.04.2010. The said Deepak Kumar, according to the FIR, visited the bank for withdrawal of the money. He was questioned by the bank officers, and, at the same time, police was informed. He was arrested. Prior to it, on 12.04.2010 itself, the FIR was lodged by PW1 Prabhpreet Singh Sehgal, the Branch Manager of the Bank. 3. It is the case of the prosecution that when the revisionist apprehended, an identity card of Sushil Kumar was recovered from his possession. After investigation charge-sheet under Sections 419, 420, 467, 468 & 471 of IPC was submitted against the revisionist. On 29.06.2010, charge under Sections 419, 420, 467, 468 & 471 IPC was framed. 4. In order to prove its case, prosecution examined seven witnesses, namely, PW1 Prabhpreet Singh, PW2 Tarun Gauhari, PW3 Varun Kalra, PW4 Gaurav Pundir, PW5 Subhodh Kumar Sharma, PW6 Constable Police, Gambhir Singh and PW7 Govind Kumar, S.I., the Investigating Officer. 5. The revisionist was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to him, he has falsely been prosecuted. 6. After hearing the parties by the impugned judgment and order passed in the case, the revisionist has been convicted and sentenced, as stated hereinabove. Aggrieved by it, the revisionist unsuccessfully filed the appeal. Hence, the revision. 7. Learned Amicus Curiae would submit that there is no evidence against the revisionist. There is no document allegedly written by the revisionist. There is no Forensic Science Report. Merely, on the basis of recovery of some identity card from his pocket, he has been convicted. Therefore, the conviction and sentence is without any evidence and interference is required in this revision. 8. On the other hand, learned State Counsel would submit that the prosecution witnesses has stated about the prosecution case. He would impress upon the evidence of PW4 Gaurav Pundir, to argue that, it is this witness, who had opened the account of Deepak Kumar. He knew Deepak Kumar and the person who was arrested on 15.04.2010, as has been stated by all other witnesses. Therefore, it is argued that the prosecution has able to prove its case. 9. He would impress upon the evidence of PW4 Gaurav Pundir, to argue that, it is this witness, who had opened the account of Deepak Kumar. He knew Deepak Kumar and the person who was arrested on 15.04.2010, as has been stated by all other witnesses. Therefore, it is argued that the prosecution has able to prove its case. 9. The Court posed a question to the learned State Counsel to indicate one piece of legally admissible evidence, which connects the revisionist with the charge framed against him. He would submit that PW4 Gaurav Pundir has stated that he had opened the account of Deepak Kumar. The Court further wanted to know from the learned State Counsel as to how the person Deepak Kumar, whose account was allegedly opened by PW4 Gaurav Pundir is connected with the present revisionist. Learned State Counsel would submit that on 15.04.2010, the revisionist was arrested in the bank and at that moment, the Identity Card of Sushil Kumar, s/o Surendra Kumar, r/o Salahkhedi, Police Station Babri, District Muzaffarnagar was recovered. Therefore, it connects the revisionist with Deepak Kumar. 10. PW5 Subhod Kumar Sharma was working in the bank, Branch Jhandewala, Delhi. According to him, on 04.04.2010, a cheque amounting to Rs. 14,56,000/-, in the name of Deepak Kumar, was presented for clearing. The cheque when process was found to be forged. This witness has also stated that again a Bank of Baroda cheque of Rs. 18,50,000/- was also deposited for clearing in the account of Deepak Kumar. It was also forged. Branch Roorkee was informed. This witness has proved certain documents Ex. 1 to 3, which he had given to the police officer. According to him, the cheque in-questions are Ex. 2 & 3. 11. PW1 Prabhpreet Singh is the person who lodged the FIR. According to him, the account of Deepak Kumar was opened on 18.03.2010 in the Bank. Two cheques amounting to Rs. 14,56,000/- from Punjab National Bank and Rs. 18,50,000/- from Bank of Baroda were presented for clearing. The cheques were forged. Thereafter, this witness lodged an FIR. He has also proved the account opening form and identity documents Ex. A1 to Ex. A4. 12. PW2 Tarun Gauhari and PW3 Varun Kalara have also stated about the account opened by the Deepak Kumar. 18,50,000/- from Bank of Baroda were presented for clearing. The cheques were forged. Thereafter, this witness lodged an FIR. He has also proved the account opening form and identity documents Ex. A1 to Ex. A4. 12. PW2 Tarun Gauhari and PW3 Varun Kalara have also stated about the account opened by the Deepak Kumar. According to them, on 15.04.2010 at about 10:30 in the morning, when Deepak Kumar visited the bank, for payment, police was informed and he was arrested. From his pocket, an identity card of Sushil Kumar s/o Surendra Kumar, r/o House No. 152 Salahkhedi, Police Station Babri, District Muzaffarnagar was recovered. 13. PW4 Gaurav Pundir has stated that he had opened the account of Deepak Kumar and at that time, Voter I.D. and Driving Licence were produced by the account holder. He has also stated about the cheques which were submitted for clearance in the account. 14. PW6 Constable, Gambhir Singh has proved police documents. 15. PW7 S.I., Govind Kumar is the Investigating Officer. He has proved the documents prepared during the investigation. 16. Merely, an identity card is recovered from somebody’s pocket, can it be concluded that the identity card belongs to the person who holds it? There is no evidence to connect that the identity card, which was found from the pocket of the revisionist belongs to him. Though, the revisionist has not disputed his identity. 17. But how could it be connected that the revisionist is the person named Deepak Kumar, who opened his account on 08.03.2010, in the ICICI Bank, Branch Roorkee? How can it be said on 08.04.2010, a cheque was presented for clearing in the account of Deepak Kumar by the revisionist? How can it be said that subsequently, another cheque of Rs. 18,50,000/- from the Bank of Baroda was presented for clearing in the account of Deepak Kumar by the revisionist? In fact, the witnesses have stated that they did not send the disputed cheques to the concerned banks for their opinion. 18. Learned State Counsel has referred to the statement of PW7 Govind Kumar, Investigating Officer to argue that, in fact, one of the Punjab National Bank cheque was in the name of some other person and it has a different amount. But, what is the basis of the statement of PW7 Govind Kumar? Did he question any officials from Punjab National Bank? But, what is the basis of the statement of PW7 Govind Kumar? Did he question any officials from Punjab National Bank? In whose name the cheques were issued? When was it presented? Who manipulated it? He stated that there is no evidence to suggest that it is the revisionist who presented the cheques for clearance. 19. Interestingly, PW4 Gaurav Pundir has not identified the revisionist either. He has not stated that it is the revisionist, who had opened the account. Learned State Counsel could not indicate the part of the statement of PW4 Gaurav Pundir, in which he had identified the revisionist. In fact, it appears that PW4 Gaurav Pundir has not identified the person, who introduced himself as Deepak Kumar and opened his account. How could revisionist, in such circumstances be connected Deepak Kumar, who allegedly opened the account in the Branch Roorkee of the bank? No opinion of handwriting expert has been obtained on the account of Deepak Kumar. 20. If Deepak Kumar, who opened the account, in the Branch Roorkee of the bank, had filed his Voter I.D. and Driving Licence at the time of opening of the account, were they sent for verification? The answer is in negative. Can today we say that Deepak Kumar, who opened the account, is not in existence. There is no evidence which can conclusively affirm that there is no person named Deepak Kumar, who had opened his account in the Branch Roorkee of the bank. There is no evidence of impersonation. The revisionist has been convicted and sentenced under Section 419 & 420 of IPC. It deals with cheating. Section 419 of IPC provides punishment for cheating by personation. Whom did the revisionist cheat? Whom did the revisionist impersonated? There is absolutely no evidence. 21. This Court is conscious of the fact this is a revision. Appreciation of evidence is not generally done in such matter. But, if finding is perverse i.e. if it is against weight of evidence, the Court is required to appreciate the evidence. Similarly, if irrelevant material is considered or material evidence is ignored, in such circumstances also, the Court is within its jurisdiction to make interference in revisions. 22. As discussed hereinabove, instant is the case in which there is, in fact, no evidence against the revisionist to prove charge under Sections 419 & 420 of IPC. Similarly, if irrelevant material is considered or material evidence is ignored, in such circumstances also, the Court is within its jurisdiction to make interference in revisions. 22. As discussed hereinabove, instant is the case in which there is, in fact, no evidence against the revisionist to prove charge under Sections 419 & 420 of IPC. He is not connected in any manner with the person Deepak Kumar who had opened his account on 08.03.2010 in the Branch Roorkee of the bank. Therefore, this Court is of the view that the conviction and sentence, as recorded in the case, and as confirmed in the appeal is against law. There is no evidence, which may prove charge under Sections 419 & 420 IPC. Therefore, the revision deserves to be allowed. 23. Accordingly, revision is allowed. Impugned judgment and orders dated 10.08.2010 & 08.12.2010 are set-aside. Revisionist is acquitted of the charge under Sections 419 & 420 of IPC. 24. The revisionist is on bail. His bail bonds are cancelled and sureties are discharged of their liability. The revisionist shall furnish personal bonds and two sureties, each of the like amount to the satisfaction of court concerned, under Section 437-A of the Code within six weeks from today. 25. Let the lower court record be sent back to the court concerned.