1 C.C. No. 318 of 2011
IN THE COURT OF THE IV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
HYDERABAD
PRESENT: Sri M. Raju, IV Addl. Chief Metropolitan Magistrate, Hyderabad.
Friday, the 11th day of November, 2022
C.C. No. 318 of 2011 Between: The State of Telangana through Osmania University Police Station. …Complainant. A N D
1.Agreca Shankaraiah S/o A.Daynand, age 28 years, Occ: Contractor, R/o H.No.4-5-59, Yerrakunta, Nacharam, Hyderabad.
2.R.Srinu S/o R.Gopal, age 49 years, Occ: UD Accountant in Vijaya Diary, Lalapet, R/o H.No.12-13-146, Behind Big Bazar, Style Home Apartment, Street No.3, Tarnaka, Hyderabad.
(The case against A2 was separated as C.C.No.5757/2019 since NBW has been pending)
...Accused.
This case is coming before me on this day for final hearing in the presence of Assistant Public Prosecutor for the State/Complainant and Sri D.Shiv Kumar, learned counsel for A1 and upon perusing the material papers on record and after hearing both sides, this court made the following:
J U D G M E N T
1.The charge sheet is filed by the Sub-Inspector of Police, Osmania University Police
Station for the offences punishable under Section 420 of the Indian Penal Code (for short “IPC”) against A1 and Sections 408 and 420 of IPC against A2.
The brief facts of the case are that on 16.07.2010 at 1500 hours, LW1 lodged a
2.
complaint stating that he has been working as General Manager in Milk Products
Factory, APDDCF Ltd., Lalapet, Hyderabad, which is operating a current A/c
No.1286201000002 in Canara Bank, Lalapet, Hyderabad and through the Senior
Manager of Canara bank, he received information that a cheque bearing No.392604
2 C.C. No. 318 of 2011 dt.10.07.2010 for Rs.2,36,650/- in favour of A.Shankaraiah was presented by him for transfer of funds to his savings bank A/c No.1286101011460 and that bank withheld the payments as signatures are not tallied. The bank authorities also informed that the said individual has previously presented a cheque bearing No.392601 dt.10.05.2010 for
Rs.2,46,650/- and the same was debited to their account on 16.6.2010 and the same was credited to the account of Shankaraiah. Hence the bank manager requested to confirm the genuineness of the above cheques. On verification of dairy records, they found that the said cheques were not issued by his office and the signatures are not tallying with the signatures of their authorised signatories and he also informed that said A.Shankaraiah is not their employee but previously worked as transporter for their milk products and now working as transporter for Vijaya Milk in the name of M/s Gokul Transport and he suspects that the said individual has stolen the blank cheques and resorted to the fraudulent withdrawal of amount from their account by way of forgery of the signatures as such he requested to take necessary action. Basing on the said complaint, LW11/SI registered a case in Crime No.211/2010 for the offences under sections 408, 420, 467, 468, 470 of IPC and during the course of investigation, he visited APDDCF Limited,
Lalapet; examined and recorded the statements of Lws 1 to 4, visited Canara bank, where he examined and recorded the statements of Lws 5 and 6. During the course of investigation, he apprehended A1 and on interrogation in the presence of Lws 7 and 8, he confessed to have committed this offence along with A2 and after formalities, Lw11 remanded A1 to judicial custody. He made several efforts to apprehend A2 but in vain.
After completion of investigation he filed charge sheet against the accused seeking to
issue NBW against A2 as he was absconding.
3 C.C. No. 318 of 2011
3.The case was taken on file for the offences under Sections 408 and 420 of IPC against A1 and A2.
4.Since NBW has been pending against A2 and as A1 has been appearing regularly, with a view to proceed with the case against appearing accused, the case against A2 was split up as C.C.No.5757/2019. On appearance of the accused No.1, copies of documents were furnished to him as required under Section 207 Cr.P.C.
5.The accused No.1 was examined under Section 239 of Cr.P.C and framed charge for the offence punishable under Section 420 r/w 34 of IPC, explained to him to which he pleaded not guilty and claimed to be tried.
6.During the course of the trial on behalf of the prosecution, PWs 1 to 6 were examined and marked Exs.P1 to P4. In the cross-examination of PW3, Ex.D1 was marked on behalf of the accused.
7.After closure of the prosecution evidence, the accused was examined under
Section 313 Cr.P.C with regard to the incriminating evidence, explained to him to which he denied and reported no defence evidence.
8.Heard both sides. The learned counsel for the accused also filed written arguments. Examined the entire record.
9. Now the point for determination is whether the prosecution established the guilt of the accused for the offence under Section 420 r/w 34 of the Indian Penal Code, beyond reasonable doubt ?
10. POINT :
It is the case of the prosecution that the accused by presenting the stolen cheques in his account with the forged signatures, got the amounts transferred under one cheque to his account and again tried to transfer the amounts under another such cheque, 4 C.C. No. 318 of 2011 which, when the bank officials found not tallying the signatures therein, informed to the complainant, who after verifying the records, lodged the complaint to police, who, then conducted investigation and filed charge sheet against the accused No.1 for the offence under Section 420 r/w 34 IPC and against A2 for the offences under Sections 408 and 420 r/w 34 of IPC.
11.Since the case is proceeded only against A1, the allegation against him is for the offence under Section 420 r/w 34 of IPC. To prove the offence punishable under
Section 420 of IPC, the prosecution has to prove that the accused have deceptive intention to cheat and with that intention, the accused illegally got the forged cheques, by which the complainant/department was deceived by the acts of the accused and thereby the accused cheated the complainant/department.
12.To prove the said offences, the prosecution has examined PWs 1 to 6 and got marked Exs.P1 to P4. PW1 is the complainant, Pws 2 to 5 are the circumstantial witnesses and PW6 is the Investigating Officer.
13.During the course of evidence, PW1 deposed that in the month of July, 2010, he received phone call from Canara bank stating that the signature on cheque of APDDCFL presented by A1 for Rs.2,36,000/- is not tallying and on verification of records, that cheque was not issued and it was further informed that another cheque for
Rs.2,46,000/- in the name of A1 was previously encashed and again he verified the records and informed that the said cheque was also not issued by their department and then he enquired with Lws.2 and 3, whether they signed the said cheques, but they denied. He further deposed that A1 is partner of Gokul transport and also driver of that company and was transporting milk for APDDCFL by visiting their dairy office and they suspected the involvement of A1 in unauthorised issuance of said cheques, as such lodged Ex.P1 complaint and he got marked Ex.P2 and P3 cheques, which were alleged 5 C.C. No. 318 of 2011 to have been issued in the name of A1 by their office. In the complaint Ex.P1 he also stated the same facts, as deposed by him, duly supporting the contents in toto. In the cross-examination, he admitted that A1 has been working as milk products supply contractor to APDDCFL since 2000 till the date of Ex.P1, that A1 never cheated him in his personal capacity, that he has not stated the total number of stolen cheques in
Ex.P1, that the accounts officer is the custodian of the attendance register of accounts department, that A2 has been working in APDDCF from the date of Ex.P1 till his retirement from service, but he expressed his ignorance whether A2 attained superannuation or obtained VRS or compulsorily retired from service. He further admitted that A1 had transport agreement dt.16.05.2009 with M/s Gokul Transport, as per which A1 is the sole representative of that transport company. He denied the suggestions put forth by the learned counsel for the accused. Except the above admissions, nothing was elicited to discredit his testimony. Further, the above admissions clearly go to show that A1 is very well known to them as he has been working as milk products supply contractor since 2000 and that any prudent man can expect that he has grip on the relevant seating officials and he can know each and every movement of the officials of concerned sections, by which, he could present the said cheques in his account. But, now the question is as to who signed those subject cheques under Ex.P2 and P3.
14.The prosecution has examined the circumstantial witnesses as Pws.2 to 4, who are officials of the said APDDCFL. Pws.2 and 3 are the Accounts Superintendents whereas
PW4 is the UD Accountant. During the course of evidence, PW2 deposed that his duties were to prepare salary bills of staff of accounts department and those bills will come along with vouchers and cheques before him and then cheques will be prepared by
LW3/PW3. He clearly deposed that the cheques Ex.P2 and P3 are not bearing his signatures. In the cross-examination, he admitted that in the year 2010, A1 was 6 C.C. No. 318 of 2011 holding independent contract for supply of milk products to APDDCFL in individual capacity, that A1 was regularly visiting the office of APDDCFL of accounts department for submitting bills and receiving cheques. He clearly admitted that the cheques and important documents were kept in the safe custody under lock and key in the almirah, which is in the custody of LW4. He further admitted that the seals/stamps affixed on
Ex.P2 is of accounts department of APDDCFL.
15.PW3, another Accounts Superintendent, also deposed in the same lines of the evidence of PW2, duly supporting his evidence and he clearly deposed that his signatures are not present on Ex.P2 and P3. He clearly deposed in the cross- examination that he cannot say as to who filled the contents in Ex.P2 and P3. He further deposed that the cheques can be handed over to A1 by cash section i.e. A2 or one Kishore. He clearly denied the suggestion that the contents of Ex.P2 and P3 were filled by A2 and the seals/stamps on Ex.P2 and P3 belong to the accounts department of
APDDCFL and he knows about the same, but purposely denying and that Ex.P2 and P3 were handed over to A1 by A2 and A1 never committed forgery of their signatures on
Ex.P2 and P3.
16.Pws.2 and 3 have clearly denied the suggestion that they signed Ex.P2 and P3 cheques and that when A1 refused to oblige their demands, they colluded with each other and deposing false against A1. In their cross-examination, except the above said suggestions, nothing was elicited to discredit their testimonies, though they were cross- examined at length.
17.The prosecution has also examined another official of APDDCFL as PW4, the
Upper Division Clerk, who deposed that in the year 2010, while he was working in it, he was entrusted with the duties regarding payments of salaries, expenditure bills, transport bills except commission bills from 1992 till 2007 as LDC and after his 7 C.C. No. 318 of 2011 promotion, he was posted in the head office in the year 2007 and was entrusted with the duties of passing salary bills and expenditure bills. He clearly deposed that for every cheque issued by his section (cash and book), there will be records and during his tenure, there were no instances of misuse of cheque books. He further deposed that
Ex.P2 and P3 pertain to commission bills, which were not issued by his section. In the cross-examination, he admitted that he was not working in the commission bills section at the time of incident and he does not have any knowledge about the incident in this case. His evidence clearly goes to show that he worked in the accounts section relating to salary bills and expenditure bills, whereas Ex.P2 and P3 are commission bills in which section he did not work. But in the cross-examination, nothing was suggested to
Pws.1 to 3 that Ex.P2 and P3 are pertaining to commission cheques. However, as admitted by PW4, it is clear that Ex.P2 and P3 are pertaining to commission bills.
18.The prosecution examined another witness as PW5, who is Senior Manager of
Canara Bank and he deposed that during his working period in that bank, he was incharge of bank correspondence, that A1 presented two cheques into SB A/c
No.1286101011460 issued by A.P. Dairy, on 13.07.2010 for Rs.2,36,650 and on 16.06.2010 for Rs.2,46,650/- and since there was difference in signature of drawer of cheque dt.13.07.2010, he made correspondence with that A.P. Dairy, who informed that the said cheques were not issued by them and that he identified Ex.P2 and P3, that were presented by A1 and he clearly deposed that no cheque return memos were issued in respect of Ex.P2 and P3. In the cross-examination, he admitted that he did not make any phone call but visited the office of AP Dairy on 10.07.2010 at about 5.30 PM and informed about the difference in signature on Ex.P3. He clearly admitted that Ex.P2 cheque was passed by the said branch on 16.06.2010 after tallying the signature of the drawer with the bank record and that their bank did not lodge any complaint in respect of return of Ex.P3.
8 C.C. No. 318 of 2011
19.Then the prosecution examined the investigating officer as PW6 and his evidence is formal in nature, during which he deposed that he received the complaint, registered the case, examined and recorded the statements of witnesses, apprehended A1, who voluntarily confessed to have committed the offence, before the mediators and he recorded the confessional statement of accused No.1, then effected arrest and remanded him to judicial custody and as A2 is absconding and after completion of investigation, he filed charge sheet against the accused. In the cross-examination, he admitted that the signature of PW1 is not taken on column No.14 of Ex.P4-FIR, that there is delay in lodging Ex.P1 from the date of knowledge of incident, but column No.8 of Ex.P4 shows there is no delay. He clearly admitted that his investigation does not disclose the total number of stolen cheques, its numbers and stolen dates, that he did not collect any record from canara bank except Ex.P2 and P3 to show that A1 had withdrawn
Rs.1,20,000/- on 17.06.2010, that he did not collect specimen signatures of authorised signatory of APDDCFL and that did not collect chance prints from the cheque book from where Ex.P2 and P3 were stolen. He further admitted that A1 is the contractor of
APDDCFL for supply of milk products. He denied the other suggestions.
20.The witnesses Pws.1 to 3 and 6 were also suggested with regard to the allegations against A2 and those suggestions were denied by them. It was also suggested to the witnesses that A2 is attending the office even after filing this case and was retired from service, but the same were denied. However, the truth or otherwise of the allegations levelled against A2 can be decided when he is present and as he is shown as absconding, the case against him was separated. The learned counsel for A1 also submitted that it is A2, who has committed the fraudulent activities, but the same cannot be considered at this stage and the allegations against him can be considered in the case pending against him.
9 C.C. No. 318 of 2011
21.It is an admitted fact that Ex.P2 and P3 show the name of A1 and those cheques belong to APDDCF Ltd. It is also an admitted fact that those cheques were presented by A1 in his bank account for clearance and that Ex.P2 amount was cleared and when
Ex.P3 was presented for clearance, the bank officials found difference in signature, as such informed to PW1, who after verifying the records, stated that those cheques were not issued by their office. PW1 also deposed that on receipt of information from PW5, he verified the records and after confirming with Pws.2 and 3 that those cheques were not issued by their office, intimated to PW5 accordingly and then lodged Ex.P1 complaint. As per the evidence of PW5, on entertaining a doubt regarding difference in signature on Ex.P3 with their records, informed the same to PW1 about presentation of cheques of their office. The evidence of Pws.2 and 3 clearly goes to show that they are not the signatories of those cheques and they did not put their signatures on those cheques, though the stamps/seals belong to their office. As deposed by the witnesses
Pws.1 to 4, A1 is very much acquainted with the officials of accounts department as he has been working as milk products contractor since long time, as such he can know each and every thing in that department and taking advantage of his free movement in that office, he might have taken away those cheques and by forging the signatures of those signatories, he has presented the said cheques and accordingly he got cleared the first cheque Ex.P2 and when again tried to get clearance of cheque Ex.P3, the same had seen the light. It is not the case of the accused that those cheques were given to him in respect of his bills and if really those cheques were issued in respect of his legitimate bills, he would have placed the material before this court. It is not the case of the accused that Ex.P2 was not cleared and if really Ex.P2 amount was not transferred to his account, he would have placed his account statement, which clearly show the details, as such an adverse inference can be drawn that having received/transferred the amount to his account, when the illegal activity has come to light, he is denying the allegations.
10 C.C. No. 318 of 2011
22.The learned counsel for the accused contended that the prosecution has failed to place any record of account statement of accused or record from the bank showing the alleged transaction except filing Ex.P2 and P3 cheques. It is true that as admitted by
PW6, he did not collect any documents except Ex.P2 and P3, which clearly go to show that they were in the name of A1 and since he is the beneficiary, no other person can own them except A1 and it is not his case that the same was not presented by him and the same were presented by some other person and if that is so, he would have obtained the relevant record and placed the same before this court to disprove the said factum of presenting those cheques illegally by some other person in his name only with a view to blame him. Moreover, it is an established fact when a cheque is there in the name of a person, no other person can dare to present in the account of that named person. When the accused was examined under Section 313 of Cr.P.C., he stated that as he did not come down to the demands of A2, he got foisted this false case but in the cross-examination, it was suggested to Pws.2 and 3 that as the accused did not come down to their demands, they are deposing false, hence, the above is quite contra to each other. When A1 was making allegations against A2, the same was not suggested to any witness that due to the illegal demands of A2 and as he did not hear those demands of A2, this false case was foisted by A2 and moreover the said story cannot be believed by any prudent man since the amount in those cheques is not a smaller amount and as he could succeed in his first attempt by presenting Ex.P2 cheque, he again presented the similar cheque under Ex.P3. Since Ex.P2 and P3 clearly show the name of A1, who presented them in his account, the burden is on him to discharge that the same was not presented by him in his account nor they were created for the purpose of this case and nothing was attributed to Pws.1 to 5, independent witnesses to speak against the accused. It was admitted by PW6 that except Ex.P2 and P3 he did not collect any other record, the same is sufficient to come to a conclusion that A1 has played key role in illegally knocking away the amounts of the department, as such the 11 C.C. No. 318 of 2011 contention of the learned counsel is of no use, in the light of the evidence of the above witnesses.
23.Further, as rightly contended by the learned APP, Ex.P2 and P3 clearly show that they were in the name of A1 and without his knowledge and role, those cheques were not simply presented in his account and it appears that he has clear intention to deceive the department from the beginning and in course of his ill-intention, he got created those cheques, got cleared one cheque and when another cheque was presented, since the same was not cleared he became silent and searching the loopholes in the officials of the concerned department. The officials Pws.1 to 5 have clearly deposed before this court about the role of A1 and since the allegations are mainly based on Ex.P2 and P3 cheques, and as he did not place and disproving material, it can be squarely assumed that A1 has dishonest intention, with which got transferred the amount under Ex.p2 cheque initially and then tried to get the amount transferred in Ex.P3 cheque, which was not fulfilled and hence, he has cheated the office of APDDCFL and though PW1 admitted that he was not personally cheated, as stated supra, A1 cheated the office of
APDDCFL, which is under the control of PW1 at the material point of time.
24.The learned counsel for the accused contended that said Ex.P2 and P3 cheques were received by A1 from accounts department in course of his job in good faith, as such he presented the said cheques in his bank for realization, and hence, the question of cheating as provided under Section 420 of IPC does not arise and prayed to acquit the accused. As per the evidence and material available on record, at the relevant point of time, Pws.2 and 3 are the authorised signatories of said cheques and in the chief examination itself, they deposed that Ex.P2 and P3 do not bear their signatures and in the cross-examination also they clearly denied the suggestion that they signed on
Ex.P2 and P3 and when A1 refused to oblige them, they colluded with each other and deposing false. In the cross-examination, PW1 also clearly denied the suggestion that 12 C.C. No. 318 of 2011
A1 has believed them and presented Ex.P2 and P3 considering the same as bill amount but they have falsely implicated him in this case in collusion with each other and that he is deposing false to save A2 and other staff. PW6 also denied in the cross- examination that A1 did not commit alleged offence and he is innocent, that A1 is victim of conspiracy of Pws.1 to 3 and absconding A2, that he has supported the said illegal stand of Pws.1 to 3 and A2 and that A1 had received Ex.P2 and P3 from the accounts office of APDDCFL in the routine manner towards bill amount of his contract works. Further in the examination under Section 313 of Cr.P.C., A1 stated that the absconding A2 was demanding money for clearing his bills and he was paying the same, later the absconding A2 was demanding exhorbitant amount from him for clearance of his bills but he refused. The absconding A2 developed grudge against him and got filed this false police case against him. Therefore, in the cross-examination of Pws.1 to 3 and 6, it was suggested that Pws.1 to 3 and absconding A2 having colluded with each other and made A1 as victim of conspiracy of this case whereas in the examination under Section 313 of Cr.P.C. he made allegations against A2 and hence, the story set up by A1 as well as the above suggestions to Pws.1 to 3 and 6 cannot be believed. If really A2 was demanding amounts illegally for clearance of his bills, A1 would have taken proper steps/action at the appropriate time to ventilate his grievances before the appropriate authority. Further it was suggested to the witnesses that the cheques were issued by the accounts department whereas accused stated that the same were given by
A2 and the same is not corroborating and trustworthy. Pws.1 to 3 have clearly deposed that for any bill or cheque issued to others, there must be some record, but in this case there is no record, which shows that those cheques were illegally prepared either by A2 or any other personnel by colluding with A1 with a view to knock away the public money and accordingly A1 got cleared the cheque under Ex.P2 and when trying to clear the cheque under Ex.P3, the truth came to light but A1 has been taking different pleas at different times only with a view to skip from the liability, which is not permissible.
13 C.C. No. 318 of 2011
Thus, the contention of the learned counsel has no force to sustain in the light of the oral and documentary evidence on record.
25.Therefore, it is clear from the above material available on record, that A1 by presenting Ex.P2 and P3 cheques by forging the signatures of authorised signatories, got transferred the amounts under Ex.P2 and later tried to transfer the amounts under
Ex.P3, but it was not fulfilled and hence, by placing the forged documents Ex.P2 and P3 as genuine one, knocked away the public money by playing fraud and cheated the
APDDCFL. Accordingly, as per the evidence of Pws 1 to 6 coupled with Ex.P1 to P4, the accused committed the fraudulent acts of cheating by forging the signatures of authorised signatories. If really A1 has not received the amount under Ex.P2, certainly he would have placed evidence before this court in that aspect, but he did not choose to do so and moreover he did not deny that he has not presented the said cheques, for which he is not entitled and therefore, the prosecution could establish that the accused has committed the alleged acts. Thus, this court is of the view that the prosecution could establish the alleged acts of the accused for the alleged offences through the evidence of Pws.1 to 6 together with Ex.P1 to P4, beyond reasonable doubt.
26.The learned counsel contended that the panch witnesses and other witnesses are not examined by the prosecution, as such the alleged confession is not at all established and hence prayed to acquit the accused. It is true that as per the case of the prosecution, before mediators A1 confessed to have committed the offence, but the said confession panchanama was not at all marked in the evidence of PW6, since it is not admissible and it is hit by the provisions of Evidence Act and that the non-examination of said panch witnesses also cannot cause any harm to the case of the prosecution in view of the evidence let-in by the prosecution, as such the contention of the learned counsel is of no use.
14 C.C. No. 318 of 2011
27. The learned counsel for accused contends that as admitted by PW6, he did not collect any documents except Ex.P2 and P3 including the record relating to clearance of cheque amount under Ex.P2 and giving an amount of Rs.1,20,000/- to A2 and in the absence of relevant record, the allegations were not at all established by the prosecution. It is true that as admitted by PW6, he did not collect the record from the bank regarding vouchers or account statements of APDDCFL or accused as well as record to show that A1 gave amount of Rs.1,20,000/- to A2 out of the amount under Ex.P2, as confessed by A1. When the prime documents Ex.P2 and P3 clearly show the name of
A1 as beneficiary and when it is not disputed about clearance of Ex.P2 cheque and presentation of Ex.P3 cheque for clearance by A1, there is no need to collect the other documents and the oral and documentary evidence, as stated supra, has been clearly establishing the allegation against the accused. However, for non-collection of supporting documents and for the lapse on the part of the investigating officer, the wrongdoer cannot go scotfree, because in this case the accused No.1 presented the cheques in his account and got the amount under Ex.P2. Moreover, the Hon’ble Apex
Court in Amar Singh vs. Balwinder Singh and Others [AIR 2003 SC 1164] and
Sambhu alias Bijoy Das and Another vs. State of Assam [AIR 2010 SC 3300], wherein it was held that “If the prosecution case is established by the evidence adduced, any failure or omission on the part of the Investigating Officer cannot render the case of the prosecution doubtful.” Thus, as discussed supra, since the evidence of
Pws.1 to 6 together with Ex.P1 to P4 clearly establishes the case of prosecution for the alleged offence against the accused, the failure on the part of the investigating officer is not a ground to throw away the entire case of the prosecution, in the light of the above observation of the Hon’ble Apex Court. Therefore, the contentions of the learned counsel, as raised above, have no legs to stand.
15 C.C. No. 318 of 2011
28.The learned counsel for the accused further contends that there is no mens rea or fraudulent intention or dishonest intention on the part of the accused and the prosecution also failed to establish the same and hence prayed to acquit the accused.
Admittedly, the evidence of Pws.1 to 6 coupled with Ex.P1 to P4 clearly goes to show that A1 presented the cheques under Ex.P2 and P3, got the amounts under Ex.P2 and tried to get the amounts under Ex.P3, then the illegality has seen the light of the day.
Further, the learned APP submits that the accused has dishonest intention with which he committed the alleged acts and saying so he relied on a decision reported in
Sangeetaben Mahendrabhai Patel vs. State of Gujarat & Anr [AIR 2012 SC 2844], wherein the Hon’ble Apex Court held that “in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC.”. Hence, as rightly contended by the learned APPO, the mens rea in the alleged offences has no validity and since the evidence of prosecution witnesses clearly establishes that the accused with a dishonest and fraudulent intention have committed the alleged offences and hence, the contention of the learned counsel has no weight to consider.
29.The learned counsel for the accused further contended that on the basis of mere suspicion, conviction cannot be based on accused and saying so he relied on a decision reported in Chandrakant Ganpat Sovitkar and another vs. State of Maharashtra [AIR 1974 SC 1290], wherein it was held that “it is well settled that no one can be convicted on the basis of mere suspicion, however, strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety”. The above said decision was reiterated by the Hon’ble 16 C.C. No. 318 of 2011
Apex Court in the case of Ravi Sharma vs. State (Government of NCT of Delhi), delivered on 11.07.2022. It is true that on mere suspicion a person cannot be convicted. The facts of the above cited decisions show that the conviction was based on the alleged recoveries from the possession of the accused person, but in the case on hand, no recovery was made from the possession of the accused and the transaction was made by the accused herein with a dishonest and fraudulent intention and the conduct of the accused from the beginning in its entirety is such that he has done the acts with such dishonest intention to cheat the Government authority and hence, as per the above decisions, the conduct of the accused clearly attracts the alleged offence, as such the contention of the learned counsel has no force to sustain.
30.The learned counsel for the accused further contended that there is no false representation to attract the offence as such the accused is entitled for benefit of doubt and saying so he relied on a decisions of the Hon'ble Apex Court in International Advanced
Research Centre for Powder Metallurgy and New Materials (ARCI) & Ors v. Nimra
Cerglass Technics (P) Ltd & Anr [2016 (1) SCC 348], wherein it was held as under:
"Distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction."
It is true that there is no representation by A1 with anyone but the acts of the accused in falsely getting the cheques by colluding with A2 or any other personnel by way of forgery with a view to knock away the public money and then after presented the cheques out of which got the money transferred under Ex.P2 and then tried to get the transfer of amount under Ex.P3, then the fraudulent acts of the accused came to light and as rightly observed by the Hon’ble
Apex Court in the above decision, there is fraudulent or dishonest intention from the beginning 17 C.C. No. 318 of 2011 of the transactions on the part of the accused and hence, the contention of the learned counsel has no legs to stand.
31.The main contention of the learned counsel for the defence is that there is no intention of cheating at the time of inception as such the same was not established by the prosecution.
But, the Hon'ble High Court of A.P. in a decision reported in BMW India Pvt. Ltd., Gurgoan,
Haryana and others v. State of Andhra Pradesh and another [2012(2) ALD (Crl.) 73 (AP)] held as under:
"Guilty intention is an essential ingredient of offence of cheating. In order, therefore, to show a person guilty of the offence of cheating, mens rea on the part of that person must be established. Latin maxim actus non facit reum nisi mens sit rea - An act does not make a criminal unless there be also criminal intention. Essential of the crime is the criminal intention with which the act has been committed. What would be criminal if the intention was present, might not be so if that intention did not exist. No one is punished for thought or intention alone unless it is followed up by some act; both act and intention are necessary to constitute an offence or crime. A crime is committed through dole. Dole which is the evil or criminal intention is an essential of a crime and where this is wanting, there can be no crime and no punishment. Dole is presumed in a greater or lesser extent from the circumstances of each particular act. Intention, generally, is an operation of the will directing an over act. Mens rea is mental intention or state of mind of the accused at the time of the offence, sometimes called guilty mind. The essential of charge of cheating is that the complainant should have been deceived. Deception is only one element of the offence of cheating and not the only element. There could be no cheating unless by reason of deception, the person deceived is induced to part with any property or omit to do anything that he would not do or omit to do but for the deception. Explanation to Section 415 IPC reads that dishonest concealment of a fact is deception within the meaning of the section."
32.Further, the Hon'ble Apex Court in a decision reported in B.Suresh Yadav v. Sharifa
Bee [2007 (12) Scale 364], held that "for the purpose of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation".
33.In S.W. Palanitkar & Ors. vs. State of Bihar & Anr., [2002 1 SCC 241], the Hon'ble
Apex Court held as under:
"21 In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating." 18 C.C. No. 318 of 2011
34.Hence, from the above decisions, and as per the evidence of PWs 1 to 6, the Government organisation of APDDCFL was deceived by the accused by submitting forged and created cheques under Ex.P2 and P3 with a dishonest and fraudulent intention and thereby got the amount under Ex.P2 and hence, cheated the Government. Though PW1 has clearly admitted that he was not cheated by accused personally out of the said transaction, it is clear that the
Government was cheated by the accused. Therefore, it is clear that the accused have fraudulent intention at the time of making transaction. Hence, the accused intentionally deceived the
Government, with that deception submitted the documents under Ex.P2 and P3 and cheated the
APDDCFL by siphoning away the public money. Therefore, the contention of the learned counsel on this ground cannot be taken into consideration.
35.The learned counsel for the accused contended that there is unexplained delay in filing Ex.P1 complaint, as such A1 is entitled for acquittal. As per the evidence and case of the prosecution and as admitted by PW1 and 6, there is delay in lodging the complaint. But, since it is the Government authority, PW1 has to take necessary steps and permissions from the higher authority after verifying all the records, as contended by the learned APP, there might have occurred some delay in filing Ex.P1 complaint, but the same is not at all a ground to throw away the entire case of the prosecution in the light of the above evidence. Further, the Hon'ble Apex Court in a decision reported in Amar Singh v. Balwinder Singh & Ors. [(2003) 2 SCC 518] held that “there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case.” The Hon'ble Supreme Court also further held that “there is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR”. The Hon'ble Supreme
Court in a decision reported in Sahebrao & Anr. v. State of Maharashtra [2006
Crl.L.J. 2881] held as “the settled principle of law is that delay in filing FIR by itself 19 C.C. No. 318 of 2011 cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.” Basing on the above settled principles of law and as per the discussion made above with regard to the filing of
Ex.P1 complaint, this court is of the considered opinion that the alleged delay in lodging Ex.P1 complaint is not at all a ground to throw away the entire case of prosecution. Hence, the contention of the learned counsel for the accused in that regard has no force to sustain.
36.The learned counsel for the accused further contended that there are contradictions, improvements, embellishments in the evidence of prosecution witnesses and the same is not corroborating with each other and hence the prosecution failed to prove the guilt of the accused beyond reasonable doubt. However there are minor inconsistencies in the evidence of those witnesses, which can be considered as minor contradictions and the same is not fatal to the case of the prosecution, in the light of the evidence as stated supra. Further the Hon'ble Apex Court in A.Shankar v State Of
Karnataka decided on 9th June, 2011 held that “However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.”
Thus, as per the above settled principle of law, the minor inconsistencies of improvements shall not effect the case of the prosecution in the light of the above evidence, which inspires confidence of this court in its entirety, as such the contention of the learned counsel on that aspect cannot have any force.
37.Therefore, from the evidence of PWs 1 to 6 coupled with Ex.P1 to P4, the prosecution could establish that A1 having colluded with A2 or any other personnel with 20 C.C. No. 318 of 2011 a dishonest intention and fraudulent intention got the forged cheques, presented them in the bank, cleared the amount under Ex.P2 and tried to clear the cheque under Ex.P3 and thereby cheated the bank and when PW1 set the criminal into motion, the accused took a plea that the said cheques were given in course of his job, but there is no record placed by him that he is legally entitled for those cheques amounts and hence, the acts of accused attract the offence under Section 420 r/w 34 of IPC, and accordingly the prosecution could establish the guilt of the accused for the alleged offence beyond reasonable doubt. Therefore, this Court is of the considered view that the prosecution could establish the guilt of the accused for the offence under Section 420 r/w 34 of IPC, beyond reasonable doubt. Accordingly, the point is answered.
38.In the result, accused No.1 is found guilty for the offence punishable under
Section 420 r/w 34 of the Indian Penal Code and he is convicted under Section 248(2) of Cr.P.C.
Typed to my dictation directly in my Laptop, corrected and pronounced by me in the open Court on this the 11th day of November, 2022.
sd/-
IV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
39.When questioned with regard to the quantum of sentence, A1 states that he has wife and children, who are not yet settled and saying so he pleaded mercy of this Court to take a lenient view.
40.Considering the above circumstances, this court is not inclined to extend the benefit under the provisions of Probation of Offenders Act for accused. Hence, considering the nature of offence and to meet the ends of justice, this court is inclined to impose sentence of imprisonment. Therefore, A1 is sentenced to suffer rigorous imprisonment for a period of two years and shall pay a fine of Rs.5,000/- (Rupees five 21 C.C. No. 318 of 2011 thousand only) in default of payment of fine amount, he has to undergo simple imprisonment for six months for the offence punishable under Section 420 r/w 34 of the
Indian Penal Code. The sentence of imprisonment already undergone by A1, if any, shall be set off as per section 428 of Cr.P.C. The unmarked case property, if any, shall be kept pending for the case against A2 in C.C.No.5757/2019.
Typed to my dictation directly in my Laptop, corrected and pronounced by me in the open Court on this the 11th day of November, 2022.
sd/-
IV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
Appendix of evidence: Witnesses examined for
For Prosecution:For Defence: PW1 : N.Hanumantha Rao-Nil- PW2 : A.C.Nagaraju PW3 : G.N.Surekha PW4 : A.Sampath Kumar PW5 : G.Alexander PW6 : R.Shiva Kumar
Exhibits marked:
For Prosecution:For Defence Ex.P1 : Complaint Ex.D1 : Portion of Ex.P2 : Cheque No.392601 dt.10.05.2010 in the name of A1statement of PW3 Ex.P3 : Cheque No.392604 dt.10.07.2010 in the name of A1 Ex.P4 : FIR
MATERIAL OBJECTS:- - Nil -
sd/-
IV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
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