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2023 DIGILAW 452 (JK)

State of Jammu & Kashmir v. Ghulam Hyder Shah

2023-08-29

M.A.CHOWDHARY

body2023
JUDGMENT : 1. All these twelve connected Appeals, which have been clubbed together, are proposed to be decided through this common judgment, as all of them have similar and identical issues involved with regard to alleged forgery of CDRs by an official of the Central Co-operative Bank Ltd. Bijbehara Anantnag, used by the contractors for production of the same along-with the tender documents for allotment of various development works undertaken by the Engineering Departments. 2. The facts of the case, as are culled out from the record of all the cases are that one Ghulam Mustafa Wani General Manager of Central Cooperative Bank Ltd. Anantnag, found two forged and fictitious CDRs (Cash Deposit Receipts) bearing Nos. 30031 and 30032 pledged in favour of the Superintending Engineer PHE Khanabal, having been cleared by the said authority, when they were presented before Central Co-operative Bank Ltd. Branch Bijbehara and it was alleged that besides these two forged CDRs, 21 such like CDRs had been seized from the office of Technical Officer to Chief Engineer PWD (R&B) Kashmir, which on their verification from CC Bank Branch Bijbehara were found forged and having not been issued by the Bank but were found to have been forged by someone deceitfully and under a deep conspiracy. This report, by the said Ghulam Mustafa Wani, led to registration of a case as Crime No. 60/1998 for the commission of offences punishable under Sections 420, 468 RPC with the Police Station Crime Branch Kashmir. 3. During the investigation of the case and on verification, the CDRs bearing Nos. 30031 and 30032 were found to be forged and fictitious, and besides this, during the course of investigation, 15 more CDRs were seized, which upon verification were also found fake and fictitious. Out of these 15 CDRs, one had been seized from PHE Khanabal and the other 14 CDRs bearing Nos. 30030, 30066, 30076, 30075, 30073, 30074, 30072, 30077, 30104, 30019, 30067, 30020, 30046, 30049 and 30070 had been seized from the office of Chief Engineer R&B. During the questioning of the contractors/beneficiaries of the CDRs, as aforesaid, it was revealed that the said contractors had procured CDRs from one Ghulam Hyder Shah, first respondent in all these cases, in lieu of full payment thereof. Samples of the admitted handwritings of the accused and the disputed writings over the CDRs bearing No. 30030, 30031 and 30032 were sent for examination and forensic analysis, to the FSL, which confirmed that the said Ghulam Hyder Shah was the author of the forged CDRs. 4. During the course of investigation of Crime No. 60/1998 it was found that the Contractors with criminal intent after having practiced cheating and forgery, produced the forged CDR purportedly to have been issued by the Branch Manager of Central Cooperative Bank Ltd. Bijbehara as security deposit before the Departments who had raised the tender for execution of some construction works and that the Contractor had used these fake and forged CDRs for getting the contract allotted in their favour, therefore, separate cases were registered vide Crime Nos. 77/1998, 78/1998, 79/1998, 81/1998, 82/1998, 83/1998, 84/1998, 85/1998, 86/1998, 87/1998 and 88/1998, for the commission of offences punishable under Sections 420, 468, 471, 120-B RPC with the Police Station Crime Branch Kashmir. It was further found during the investigation of all these cases and after verification from the concerned Bank, that the fake and forged CDRs had been prepared having been purchased by the contractor from the Bank official at extremely under-rate/value and submitted along-with the tender documents in the office of concerned Engineering Departments. 5. Investigation was concluded and separate charge sheets in all the cases were laid before the court of learned Chief Judicial Magistrate Anantnag (‘trial court’). All the accused were charge sheeted by the trial court vide order dated 26.06.2004 for the commission of offences punishable under Sections 420, 468, 471, 120-B RPC. On denial of charge by the accused the prosecution led the evidence and examined prosecution witnesses. Respondents were examined in terms of Section 342 CrPC to explain the incriminating evidence, wherein they denied the prosecution evidence and opted to lead evidence in defense; however, they failed to lead any evidence and after hearing both the sides all the accused in every case were acquitted. The judgments passed by the learned Chief Judicial Magistrate Anantnag, whereby all the accused were acquitted, has been challenged before this Court through the medium of these appeals. 6. The impugned judgment has been assailed on the following grounds:- i) That the judgment impugned is against the facts and circumstances of the case and is not sustainable in law. The judgments passed by the learned Chief Judicial Magistrate Anantnag, whereby all the accused were acquitted, has been challenged before this Court through the medium of these appeals. 6. The impugned judgment has been assailed on the following grounds:- i) That the judgment impugned is against the facts and circumstances of the case and is not sustainable in law. ii) That the impugned judgment is erroneous inasmuch as the same is not based on correct appreciation of the evidence having come on record during the course of trial before the learned trial court, as such, the impugned judgment is liable to be set aside. iii) That after going through the impugned judgment and the record/material collected and placed before the learned trial court by the investigating agency and the evidence produced, the trial court was not correct in saying in the impugned judgment that the prosecution has failed to prove its case, whereas the bare perusal and examination of record/material and evidence produced by the prosecution proves the guilt of the respondents-accused, who requires to be convicted for the offence u/s 420/468 RPC. On this score, the impugned judgment is liable to be set aside. iv) That the trial court has not appreciated in its right perspective the incriminating evidence produced by the prosecution against the respondents-accused establishing their guilt beyond any shadow of doubt. The trial court ought not to have discarded the prosecution witnesses, who have corroborated with each other, as such, the impugned judgment has caused prejudice to the prosecution case. On this count also, the impugned judgment is liable to be set aside. 7. Heard, perused the record and considered. 8. Due to death of one of the respondents in CRAA Nos. 10/2010 and 16/2010 accused- Abdul Ahad Katoo during pendency, the appeals as against him stand abated. 9. Before appreciating the rival submissions made by learned counsel for both the sides, it would be profitable to advert to the factual aspects of the case. 10. 8. Due to death of one of the respondents in CRAA Nos. 10/2010 and 16/2010 accused- Abdul Ahad Katoo during pendency, the appeals as against him stand abated. 9. Before appreciating the rival submissions made by learned counsel for both the sides, it would be profitable to advert to the factual aspects of the case. 10. The prosecution cases as set-out in the charge-sheets are that during the course of investigation of a case Crime No. 60/1998, it was found that the respondents-Contractors with criminal intent after having practiced cheating and forgery, produced CDR No. 30074 purported to have been issued by respondent No.1 as Manager of Central Cooperative Bank Ltd. Bijbehara as security deposit before the concerned officers of the departments having knowledge that the same were fake and forged, for getting the contract allotted relating to the construction of different engineering works/projects, as such, the cases were registered, for the commission of offences punishable under Sections 420, 468, 471, 120-B RPC vide aforestated Crime Nos. During the investigation of the case and after verification from the concerned Bank it was found that the fake and forged CDR had been managed having been purchased by respondents/contractors from respondent No.1 at extremely under rate/value and submitted alongwith tender documents. It was also found that respondent No.1, being a swindler and possessed of cunning mentality, with dishonest and criminal intention sold the CDR in question to respondents /contractors without recording anything over them and thus they had intentionally and deliberately committed the crime as aforesaid. The CDRs in question had been seized in Crime No. 60/1998 registered with Crime Branch Srinagar which resulted in presentation of charge sheet on 29.05.2001 and bears similarity with CDR seized in the parent case as aforesaid. 11. Prosecution had examined PW-1 Gh. Mustafa Wani, who was informant in the case, stated that in the year 1998 he had lodged FIR (EXPW/1) in case No. 74 emanating from FIR No. 60/1998 registered with Crime Branch and admitted the contents of FIR (EXPW/1) as correct. He further stated that the Crime Branch, Police had visited his office and recorded his statement. During cross examination, he stated that two points projected by him in his report (EXPW/1) were based on the report of PW-2 Ab. Majeed Tantray, Branch Manager Bijbehara only, while as he himself had not conducted any enquiry/investigation in this regard. He further stated that the Crime Branch, Police had visited his office and recorded his statement. During cross examination, he stated that two points projected by him in his report (EXPW/1) were based on the report of PW-2 Ab. Majeed Tantray, Branch Manager Bijbehara only, while as he himself had not conducted any enquiry/investigation in this regard. He further stated that there were numerous cases against the said Ab. Majeed Tantray who had been suspended on some occasions as well. The police had taken samples of handwriting of all the employees of Bijbehara Branch, however, he had not handed over any document from his office qua respondent Gh. Hyder Shah. 12. PW-2 Ab. Majeed Tantray stated that in the year 1998, he as Branch Manager in Central Cooperative Bank Bijbehara was approached by Accounts Clerk from the office of Chief Engineer, R&B Srinagar for verification of 14 CDRs qua their genuineness or otherwise. He had stated that during the verification/examination of CDRs, those were found to be forged and fraudulent because their numbers were not recorded in the Bank Branch records and thereafter the matter was reported to the Head Office Anantnag. During investigation he was questioned by the Crime Branch Srinagar, wherein he deposed on the similar terms. He further deposed that the CDRs were not seized from his Branch but were handed over by the General Manager Central Cooperative Bank Anantnag to the Crime Branch. He further stated that the CDRs appended with Crime No. 60/1998 do not bear his signatures or mark or of any other officer, and he cannot say whether the CDRs appended with the case file were same which had been seized by the Crime Branch. He stated that no departmental enquiry had been conducted qua the matter as aforesaid. He further deposed that the respondent-accused Gh. Hyder Shah was known to him but he was not posted in the Bijbehara Branch in the year 1998. 13. PW-3 Gh. Hassan Dar stated that the accused except Hyder Shah were known to him. In the year 1998 he was posted as Head Clerk in R&B Division Khanabal and besides his other official work he had been assigned the job of issuance of tender notices; that CDRs were required to be submitted alongwith the tenders, however, neither any tender was cancelled nor was found fraudulent. In the year 1998 he was posted as Head Clerk in R&B Division Khanabal and besides his other official work he had been assigned the job of issuance of tender notices; that CDRs were required to be submitted alongwith the tenders, however, neither any tender was cancelled nor was found fraudulent. He further stated that fresh tenders were issued qua certain works at the instance of Chief Engineer but the said process pertains to his office only. He had not made any statement to the police nor had seen any police personnel investigating the case. Having been declared hostile and on his cross examination by the prosecution he stated that fresh tenders were invited from his office pursuant to instructions of Chief Engineer. 14. PW-5 SI Ab. Ahad stated that he was posted in Crime Branch Kashmir as I.O from 1997 to 2007; that he was Incharge of ‘serishta’ of Police Station Crime Branch Srinagar in the year 1998; that Constable Ab. Gani of his Section had obtained certain documents in Crime No. 60/1998 and those documents were handed over to the Investigating officer in the office by Constable Ab. Gani in his presence, vide seizure memos (EXPW-19, EXPW-19/1 and EXPW-19/2) and he admitted the contents of seizure memos as correct and also identified his signatures thereon. He also indentified the CDRs marked as A to N and M-1 & M-2 appended with the case file of Crime No. 60/1998. He on his cross examination stated that the seizure memos had not been read over to him and denied having knowledge as to when Constable Ab. Gani had obtained the CDRs. 15. PW-7 SI Sheikh Zaffar-ullah stated that in the year 1998 he had investigated Crime No.60/1998 registered at Crime Branch Kashmir and during the course of investigation 14 forged and fraudulent CDRs had been received in the office of Chief Engineer, which was accordingly seized by him in the aforesaid case. He further stated that CDR No. 30074 under investigation was seized in Crime No. 60/1998 and as such it was not further seized in the case. During investigation of Crime No.60/1998 and on the strength of evidence collected, the CDRs aforesaid were found forged and the respondent-accused Gh. Hyder Shah was found to have provided under rated CDRs to the Contractors. During investigation of Crime No.60/1998 and on the strength of evidence collected, the CDRs aforesaid were found forged and the respondent-accused Gh. Hyder Shah was found to have provided under rated CDRs to the Contractors. He further deposed that photocopies of the seizure memo and statements recorded under Section 161 CrPC were found in the instant case file. On his cross examination he stated that the statements recorded under Section 161 CrPC in the parent case are appended with the other cases as photocopies. It is pertinent to mention, as recorded by the trial court, that all other cases had originated during the investigation of the parent case (Crime No.60/1998) and certain documents were on record in that case. Description of such documents was recorded by the trial court as follows:- a. First Information report bearing No.2923/24/CBA/HQ dated 4.3.1998 EXPW/1. b. Seizure memo dated 23.4.1998 with respect seizure of 14 CDRs in the office of crime branch Kashmir Srinagar EXPW 19/2, c. Seizure memo dated 25.5.1998 qua the seizure of one CDR bearing No.30030 of CC Bank Anantnag EXPW/19/1, d. Seizure memo dated 10.3.1998 qua the seizure of two CDRs bearing No. 30031 and 30032, e. Seizure memo dated 25.3.1998 qua the seizure of documents as admitted hand writing EXPW/2, f. Seizure memo dated 2.4.1998 qua the seizure of cancelled CDRs No. 00486 dated 23.10.1997 EXPW 2/A, g. Seizure of four documents from the General manager CC Bank Anantnag for getting expert opinion EXPW 12, h. CDRs 17 leaves A to L, M-1 and M-2, i. Communiqué bearing No. FSL/327- DOC/Sgr. Dated 15.10.1998, j. The expert opinion of Director of J&K FSL Srinagar purporting to have been made by one Dr.R.L.Dhar, k. Communication No. 3904 dated 30.6.1998 addressed to the Director FSL Srinagar by Additional SP Crime Branch for admitted expert opinion, l. Documents four leaves described in seizure memo EXPW-12, m. Documents five leaves described in seizure memo EXPW 2, n. Carbon copies of statements of witnesses recorded under Section 161 Cr.PC. 16. The prosecution evidence can be bracketed into certain groups; one group comprising of PW-1 Gh.Mustafa Wani, who is also complainant in the case; PW-2 Ab. Majid Tantray, who was stated to be Manager of the CC Bank Branch Bijbehara in the year 1998; PW-3 Ab. Rashid Sheikh, who was shown as Deputy Manager CC Bank Branch Bijbehara in the year 1998. Majid Tantray, who was stated to be Manager of the CC Bank Branch Bijbehara in the year 1998; PW-3 Ab. Rashid Sheikh, who was shown as Deputy Manager CC Bank Branch Bijbehara in the year 1998. All these witnesses have stated that the CDRs deposited for encashment had been found to be forged and fake and PW-3 Ab. Rashid Sheikh stated that two civilians namely Khurshid Ahmad Shah and Showkat Ahmad Najar had approached their Branch with two CDRs worth Rs.10,000/- each, which were found to be fake by the Branch Manager, who reported the matter to the General Manager. They have, thus, not made any statement incriminating to any of the accused. 17. Next two witnesses, PW-5 Mohammad Ahsan Rather and PW-6 Gul Mohammad Bhat denied having any knowledge about the occurrence, further they denied having any knowledge about the Contractor- Maqsood Ahmad Dar. PW-5 also stated that he has no knowledge about the production of CDRs for verification by one Showkat Ahmad Najar, whereas PW-6 asserted that respondent No.1 was a man of integrity and denied to identify the respondents Ab. Rehman Ganai, Mohammad Yousuf Dar, Mohammad Yousuf Katoo, Gh. Qadir Dar, Mohammad Katoo, Ab. Ahad Katoo and Gh. Nabi Dar, as such, both these witnesses have not connected any of the accused with the commission of any of the offences even remotely. 18. Next three witnesses PW-7 Khurshid Hassan Shah, PW-8 Showkat Ahmad Najar and PW-10 Manzoor Ahmad Sofi are the Contractors. PW-7 Khurshid Hassan Shah stated that he was Contractor in partnership of Maqsood Ahmad and that he had advanced the amount of Rs. 30,000/- to the said Maqsood Ahmad for purchase of CDRs, which he obtained from the Co-operative Bank and handed over to him; that he had presented those CDRs for encashment, which was refused by the Branch on the pretext that same had not been issued by the said Bank. PW-7, however, specifically pointed out that he had not visited the Bank himself but had deputed his partner Maqsood Ahmad Dar to the Bank. The statement of PW-7 Khurshid Hassan Shah, thus, is of no consequence as the same does not specifically state with regard to the source of issuance of CDRs in question. PW-7, however, specifically pointed out that he had not visited the Bank himself but had deputed his partner Maqsood Ahmad Dar to the Bank. The statement of PW-7 Khurshid Hassan Shah, thus, is of no consequence as the same does not specifically state with regard to the source of issuance of CDRs in question. PW-8 Showkat Ahmad Najar stated that he had visited the Bank for release of CDRs at the instance of PW-7 Khurshid Hassan Shah, his partner, however, same were not released by the Bank conveying him that the same were not genuine. PW-10 Manzoor Ahmad Sofi stated that he being busy at the relevant time with his nuptial ceremony was approached by PW-7 with regard to filing of tenders for ‘Service Reservoir’ at Marhama with PHE Division Bijbehara and that he signed the requisite tender form and handed over to PW-7 Khurshid Hassan Shah, who had told that the amount of Rs.30,000/- had been handed over to one Maqsood Ahmad Dar for purchasing of three CDRs of Rs.10,000/- each. Thus, PW-8 and 10 have asserted that CDRs had been procured by one Maqsood Ahmad Dar, whereas the said PW-9 Maqsood Ahmad Dar had not been examined by the prosecution, which renders the testimonies of either of these witnesses meaningless. 19. PW-3 Gh. Hassan Dar had been cited as witness from R&B Division Khanabal, who specifically stated that he had not made any statement during investigation and despite him being declared hostile nothing incriminating could be extracted. PW-12 Gh. Mohammad Wani has been shown as Manager Personnel and stated that he had handed over certain documents to the Crime Branch officials which was seized vide seizure memo EXPW/12, however, he expressed his ignorance as to the correctness or otherwise of the seizure memo. PW-14 Mufti Syed Ahmad has not also made any incriminating statement. 20. Next set of witnesses comprises of PW-17 SI Ab. Ahad and PW-19 Inspector Sheikh Zafarullah. PW-17 admitted the contents of seizure memos and stated that CDRs had been seized in his presence. PW-19 Sheikh Zafarullah has investigated the case and stated that he had proved the case on the basis of oral as well as documentary evidence. 21. 20. Next set of witnesses comprises of PW-17 SI Ab. Ahad and PW-19 Inspector Sheikh Zafarullah. PW-17 admitted the contents of seizure memos and stated that CDRs had been seized in his presence. PW-19 Sheikh Zafarullah has investigated the case and stated that he had proved the case on the basis of oral as well as documentary evidence. 21. Learned counsel for the appellant argued that the appellant had led sufficient evidence before the learned trial court to prove that the CDRs produced by the contractors at the time of filing of the tenders for allotment of execution of different works had been found forged by first respondent- Ghulam Hyder Shah for under rate/value thereof, who was an official in the Central Co-operative Bank Branch Bijbehara and the co –accused contractors had used those forged CDRs illegally. 22. The prosecution had examined the Bank officials, officials from the Engineering Department, witnesses to the seizure memos and I.O. The officials from the Bank had been cited to prove with regard to record received from the Bank to substantiate that respondent-accused was the official of the Bank at the time when these CDRs were shown to have been issued as under-rate/value. However, the then Manager of the Bijbehara Branch of CC Bank, PW-2 Abdul Majid Tantray had clearly stated that first respondent Gh. Hyder Shah was not posted in the said Branch in the year 1998, which rules out his complicity in the commission of the offences of forgery, in any manner as an official of the Branch concerned. 23. The officials from the Engineering Department had been cited to prove these forged documents had been used by the contractors/accused at the time of filing of tender documents for allotment of different works. Except for admitting the seizure memos, the witnesses have denied having any knowledge with regard to the case. The seizure memos have been proved to have been prepared during the investigation. The I.O. Sheikh Zaffar-ullah stated that during the investigation he had obtained admitted signatures/hand-writings of the suspects and had sent them for forensic opinion to FSL along-with questioned/forged CDRs, however, as recorded by the trial court, sending these documents to FSL had not been proved during the course of trial, as the officer i.e., Additional Superintendent Crime Branch Kashmir, who is stated to have sent these documents on 30.09.1998 to FSL, had not been examined. 24. 24. The prosecution had, though, examined the prosecution witnesses and also placed on record documentary evidence, however, there being no oral direct incriminating evidence against any of the accused, the prosecution cannot be said to have proved its case before the trial court. Moreover, the report of the hand-writing expert of Forensic Science Laboratory had not been proved by examining its author and without having been proved by the author of the report, the same cannot be admitted into evidence for consideration by the court at the time of arguments. 25. For a case like these cases involving accusation of forgery, statement of FSL expert is of utmost importance. The FSL expert Dr.R.L.Dhar, who, on examination of the admitted and questioned writings/signatures had issued these certificates/reports, admittedly had not been examined by the prosecution during the course of trial. The report of FSL, in terms of Section 510 CrPC to be considered in evidence without examination of the author, was rightly rejected, in view of the law laid down by this Court in a case titled Sher Singh Vs. State reported as 2007(1) SLJ 126, wherein it had been held that the statement of such expert witness was not admissible under Section 510 CrPC without examination of the expert in the court and such report was thus not treated to be a piece of evidence unless proved, as against the provisions of Special Rule of Evidence prescribed under Section 510 CrPC. 26. Hon’ble High Court of M.P in a case reported as 2008 Cr.LJ 2216 had also held that examination of the handwriting expert was must and the contents of the report cannot be used to record conviction without examination of the author of the report. 27. On a cumulative analysis of the evidence brought on record by the prosecution and on consideration of rival submissions made by the learned counsel for the parties, it is found that there is no sufficient and cogent evidence to record conviction of the respondents. The trial court had correctly recorded that the CDRs in question though bear similarity/conformity with the CDRs seized in the parent case, as such, by no stretch of imagination, guilt can be fastened upon any of the respondents in the instant case particularly in the absence of examination of handwriting expert. 28. The trial court had correctly recorded that the CDRs in question though bear similarity/conformity with the CDRs seized in the parent case, as such, by no stretch of imagination, guilt can be fastened upon any of the respondents in the instant case particularly in the absence of examination of handwriting expert. 28. It is trite in law that strong suspicion, co-incidence and grave doubt cannot take place of legal proof. Suspicion, however grave, is not proved in absence of reliable evidence and it is unwise to act on mere suspicion, as has been held by the Hon’ble Apex Court in cases reported as AIR 1979 SC 1755 and AIR 1992 SC 2210. 29. From the perusal of all the judgments impugned, in the aforesaid appeals, seems to have been passed assigning sufficient and good reasons and this Court does not find any occasion to interfere with the well reasoned judgment passed by the trial court. 30. For the foregoing reasons and observations made hereinabove, this Court is of the opinion that both, on the facts as well as law, the prosecution had failed to prove the case against the accused beyond any reasonable doubt, as such, the trial court has rightly acquitted the respondents-accused giving them the benefit of doubt. 31. As a result of the aforesaid discussion, all the appeals on hand are found to be devoid of any merit and substance, as such, are liable to be dismissed. Accordingly, impugned judgments, are upheld and appeals are dismissed. 32. Copy of this judgment shall be placed on record of all the connected appeals. Trial Court records along-with copies of this judgment are ordered to be sent down for information and record.