Delhi High Court
Surinder Kumar Bali vs State on 27 November, 2009
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 12th,November 2009
Judgment Delivered on: 27th,November 2009
+ CRL.REV. P.122/2003, CRL.M.A.NOs.243/2003 & 440/2003
SURINDER KUMAR BALI ...Petitioner
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. Anurag Jain, Mr. Sindhu Sinha &
Mr. Nikhil Bhalla, Advocates
Versus
STATE ...Respondent
Through: Mr.Manoj Ohri, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. Charge sheet had been filed against six co-accused persons.
Sunil Kumar Bali is the petitioner before this Court; he was the
Assistant Manager of the Syndicate Bank, Kamla Nagar Branch,
Delhi at the relevant time. Bhagya Nath and Venu Gopal were also
assistant managers; Ram Kumar & Dev Anand were clerks and
S.S.Brahmi was a stenographer. Allegations were that all the
aforestated persons had entered into a criminal conspiracy to make
certain bogus withdrawals from the bank; in furtherance of the
common object of their criminal conspiracy they had opened two
current accounts i.e. C/A No. 1732 in the name of Mahendra Estate
Crl.Rev.P.122/2003 Page 1 of Page 20
and C/A No.1738 in the name of M.K.Enterprises. False transfer
vouchers and entries were made in the ledger in order to fructify
their common purpose.
2. Allegations against the petitioner are two fold:-
i)- Account opening form of current account no. 1732 Ex.PW-14/D of
Mahendra Estate was introduced by Darshan Lal Manchanda;
petitioner has verified the signatures of the introducer namely
Darshan Lal Manchanda on this account opening from. Darshan Lal
Manchanda had come into witness box as PW-3 and had denied that
he had introduced this account. Allegations thus being that the
petitioner had committed a forgery.
ii)- Petitioner had tallied an amount of Rs.5,05,000/- from the
current account No.1738 Ex.PW-14/F in the name of M/s
M.K.Enterprises with the balance in the Balance Book Ex.PW-12/H of
the bank; (Ex.PW-12/G) is the original) this was a forgery done with
an intent to cheat.
3. Trial Court had examined 16 witnesses to substantiate the
allegations against the accused persons. Complianant was J.C.
Singhal, the manager of the bank at the relevant time. He has been
examined as PW-14. Darshanlal Manchanda PW-3 had purportedly
introduced the current account No.1732 of Mahendra Estate;
specimen signatures of PW-3, Ex.PW-3/A and Ex.PW-3/B were taken
in the presence of Hari Om PW-4. Specimen signatures of the
petitioner were taken on 9.7.1987 in the presence of Ram Singh
PW-10. Dr.S.C.Mittal PW-8 had examined the questioned and the
admitted/specimen writings/signatures of the petitioner, PW-3 as
Crl.Rev.P.122/2003 Page 2 of Page 20
also the other accomplices of the petitioner. His reports Ex.PW-8/A
and Ex.PW-8/B were however both inconclusive qua the role of the
petitioner. R.K.Dhawan PW-12 was the special Assistant Manager in
the bank at the relevant time and was looking after the loan deposit
Register; as per his version in August 1986 he had reported that the
L.D. i.e. the loan deposit register was missing.
4. Trial Court on the basis of the evidence adduced before it had
convicted the petitioner i.e. Surinder Kumar Bali, Bhagya Nath and
Venu Gopal under Section 120 B read with Sections 420/511 of the
IPC. They were also convicted for having committed an offence
punishable under Section 380 read with Section 120 B of the IPC as
also for the offence punishable under Section 468, 471 read with
Section 120 B of the IPC.
5. Vide order of sentence dated 26.8.2002 all the aforestated
persons had been sentenced to undergo RI for one year and to pay
file of Rs.10,000/- for the offence punishable under Section 120 B of
the IPC; they were sentenced to undergo RI for one year and to pay
fine of Rs.5000/- for the offence punishable under Sections 420/511
of the IPC read with Section 120B of the IPC; they were further
sentenced to undergo RI for two years and to pay a fine of
Rs.10,000/- for the offence punishable under Section 380 read with
Section 120B of the IPC; for the offence punishable under Section
468 of the IPC they were sentenced to undergo RI for one year and
to pay a fine of Rs.5000/-; no separate sentence had been awarded
for the offence punishable under Section 471 of the IPC.
Crl.Rev.P.122/2003 Page 3 of Page 20
6. In appeal before Additional Sessions Judge vide judgment
dated 4.2.2003 co-accused Venu Gopal and Bhagya Nath had been
acquitted of all the charges levelled against them. The conviction of
the petitioner i.e. S.K.Bali had been maintained under Sections
120B/468 of the IPC. For the offence punishable under Section 420
read with Section 511 of the IPC, his conviction had been altered
and was converted into a conviction under Section 417 of the IPC;
he was acquitted of the offence under Section 380 read with Section
120B of the IPC. He was sentenced to undergo RI six months for the
offence punishable under Section 120B of the IPC, no alteration was
made in the fine imposed. For the offence punishable under Section
417 of the IPC he was sentenced to undergo RI for six months and to
pay fine of Rs.5000/- in default of payment of fine to undergo SI for
one month. For the offence punishable under Section 468 of the IPC
he was sentenced to undergo RI for one year and to pay a fine of
Rs.5000/- and in default of payment of fine to undergo SI for one
month.
7. It is this order which has become the subject matter of this
revision petition before this Court.
8. On behalf of the petitioner, it has been urged that the altered
conviction by the appellate Court is illegal, arbitrary and has
resulted in a mis-carriage of justice. The petitioner is the only
person out of the six persons charge sheeted who now remains
convicted; in the absence of any other person having allegedly
hatched the conspiracy with the present petitioner the ingredients
of Section 120 B of the IPC are not made out; it is not the case of
Crl.Rev.P.122/2003 Page 4 of Page 20
the prosecution that the petitioner had entered into a conspiracy
with some unknown person; case of the prosecution is that the
petitioner had hatched this conspiracy with the other known persons
i.e. the other five co-accused persons; all of whom now stand
acquitted; petitioner alone cannot be convicted for the offence
under Section 120B of the IPC as the ingredients of the said Section
necessarily postulate that a conspiracy has to be between more
than one person; there is no such other person; conviction under
Section 120 B of the IPC is liable to be set aside. For this
proposition, learned counsel for the petitioner has placed reliance
upon AIR 1956 SC 33 Topandas vs. State of Bombay; it is submitted
that this judgment squarely applies to the proposition now
propounded by the counsel for the petitioner; emphasis has been
made on the finding which inter alia reads as follows:-
By the terms of the definition itself, there ought to be
two or more persons who must be parties to such an
agreement and it is trite to say that one person alone
can never be held guilty of criminal conspiracy for the
simple reason that one cannot conspire with oneself. If,
therefore, 4 names individuals were charged with having
committed the offence under S. 120-B, Penal Code, and
if three out of these 4 were acquitted of the charge, the
remaining accused, who was the accused No.1 in the
cases before us, could never he held guilty of the
offence of criminal conspiracy.
9. Ingredients of cheating as defined under Section 415 of the
IPC necessarily postulate an intention; there must be an
intentional deception which must be intended not only to induce the
person deceived to do or omit to do something but also to cause
damage or harm to that person in body, mind, reputation or
property; the intentional deception presupposes the existence of a
Crl.Rev.P.122/2003 Page 5 of Page 20
dominant motive of the person making the inducement; such
inducement should have led the person deceived or induced to do
or omit to do anything which he would not have done or omitted to
do if he were not deceived; further requirement is that such act or
omission should have caused damage or harm to body, mind,
reputation or property. It is submitted that this definition necessarily
has two parts; while in the first part the person must "dishonestly"
or "fraudulently" induce the complainant to deliver any property; in
the second part, the person should intentionally induce the
complainant to do or omit to do a thing. This is to say, in the first
part inducement must be dishonest or fraudulent. In the second
part inducement should be intentional; a guilty intention is an
essential ingredient of cheating. None of these ingredients are
contained in the allegations against the present petitioner. For this
proposition reliance has been placed upon 2000(3) SCC 693 G.V.
Rao vs. L.H.V. Prasad & Ors. It is submitted that at best the acts of
the petitioner can qualify for a negligence or a failure to perform a
duty or to observe a rule of procedure; in the absence of mense rea
which is an essential requirement of the offence of cheating, an
administrative lapse cannot establish this charge. Reliance has
been placed upon 1974 (4) SCC 616 Anil Kumar Bose vs. State of
Bihar to substantiate this submission.
10. Attention has also been drawn to the definition of
"dishonestly" and "fraudulently" as contained in Sections 24 and 25
of the IPC; both these sections require some action resulting in
disadvantage which but for the deception the person defrauded
Crl.Rev.P.122/2003 Page 6 of Page 20
would have avoided. Reliance has been placed upon 1997 6 SCC
499 Jibrial Diwan vs. State of Maharashtra.
11. It is submitted that in the instant case the mere verification by
the petitioner of the signatures of the introducer on the current
account of Mahendra Estates and the second allegation that he had
counter signed the tallying of the balance in the Balance Book of the
Bank with the current account of M.K.Enterprises does not by any
stretch of imagination come within the ambit of the definition of
either the act being dishonest or fraudulent; no offence is made out
qua the present petitioner.
12. Ingredients of Section 468 of the IPC necessarily encompass
within its ambit a forgery for the purpose of cheating; if there is no
cheating, offence under Section 468 of the IPC is also not made out.
Forgery has been defined under Section 463 of the IPC which
postulates the making of a false document. Making of false
document has been defined under Section 464 of the IPC; attention
has been drawn to its language.
13. It is submitted that in the absence of the prosecution having
been able to show that the petitioner had made any gain from the
so-called forgery committed by him, the ingredients of this offence
are also not made out. Reliance has been placed upon JT 2009 (13)
SC 507 Parminder Kaur vs. State of U.P. & Anr. The petitioner had
nothing to gain and neither is there any such allegation; it has also
not been established by the prosecution that any loss has been
suffered by the bank from the acts of the petitioner.
Crl.Rev.P.122/2003 Page 7 of Page 20
14. Admittedly there is no expert opinion on the questioned
admitted and the specimen handwriting/signatures which had been
sent to CFSL for comparison. Attention has been drawn to the
report of the CFSL which has been proved in the version of Dr. S. C.
Mittal PW-8, Ex.PW-8/A and Ex.PW-8/B, the finding in the reports are
all inconclusive; it is also not a case where the judge himself had
examined the said documents i.e. either the specimen or the
admitted writings with the questioned documents. To establish the
ingredients of an offence under Section 468 of the IPC, it was
incumbent upon the prosecution to have obtained a scientific report
which is absent in this case. Reliance has been placed upon [1963]
3 SCR 564 Abinash Chandra Bose vs. Bimal Chandra Bose to
substantiate his submission that where there is no expert evidence
before the court to come to the conclusion about authorship of the
impugned portion of a document, benefit of doubt has to accrue in
favour of the accused.
15. Attention has been drawn to Ex.PW-14/D i.e. the account
opening form of the current account no.1732 of Mahendra Estates.
This document has been counter signed by the petitioner; it is
submitted that Darshan Lal Manchanda PW-3 who had purportedly
introduced this account has on oath clearly stated that he had not
done so; it is also not the case of the prosecution that some other
person had impersonated as Darshan Lal Manchanda. The
petitioner while counter verifying this document had done so on the
basis of the earlier record available with the bank i.e. the signature
and writing of Darshan Lal Manchanda. The petitioner is a lay person
Crl.Rev.P.122/2003 Page 8 of Page 20
and it was only with a naked eye that he had examined these
documents before he had counter signed Ex.PW-14/D; he was not a
scientific expert. He could not have gone into the nitty gritties of the
handwriting of Darshan Lal Manchanda; on the face of it the
signatures of the introducer on Ex.PW-14/D appear to be that of
Darshan Lal Manchanda. Even otherwise the bank had not suffered
any loss as no transaction had been effected from this account.
16. The second allegation against the petitioner that he had
counter signed the balance in the Balance Book of the Bank with the
current account i.e. the entry dated 22.8.1986 of Rs.5,00,500/- does
not make out a case of forgery. Attention has been drawn to the
document Ex.PW-12/H and the said entry dated 22.8.1986; forgery
is not established.
17. Arguments have been rebutted by the learned counsel for the
State. It is pointed out that this Court can even in the absence of a
named co-conspirator convict a single person for the offence of
conspiracy under Section 120 B of the IPC. Reliance has been
placed upon AIR 1991 SC 318 Brathi alias Sukhdev Singh vs. State of
Punjab to substantiate this submission that the Appellate Court is
free to appreciate the evidence to reach its own conclusion. If on
such evidence the Appellate Court arrives at a conclusion that the
appellant and another co-accused had acted in furtherance of their
common intention then the conviction of the appellant with the aid
of Section 34 is legal; this is notwithstanding the finding that no
appeal has been filed by the State against the acquittal of such a co-
accused. Reliance has also been placed upon AIR 1956 SC 469
Crl.Rev.P.122/2003 Page 9 of Page 20
Bimdadhar Pradhan vs. The State of Orissa; it is submitted that even
a single person can be convicted under Section 120 B of the IPC; it is
not essential that more than one person should be convicted of the
offence of criminal conspiracy; it is enough if the Court is in a
position to find that two or more persons were actually concerned in
the criminal conspiracy. Attention has also been drawn to the
admissions of the petitioner made in his statement under Section
313 of the Cr.P.C. It is submitted that the petitioner has not
disputed his handwriting and signatures either on Ex.PW-14/D or on
Ex.PW-12/H. It is submitted that the petitioner has admitted that he
was in charge of the bank at the relevant time; as such in this
capacity it was his duty to ensure that the verification made by him
of the signatures of Darshan Lal Manchanda had in fact tallied with
his original signatures; he did not do so intentionally and
fraudulently; this is also evident from Ex.PW-12/H in which the
balance in the account had admittedly been tallied by him; he did
this tallying with a dishonest intent.
18. Arguments have been heard and record perused.
19. J.C. Singhal PW-14 was the complainant; he was the Manager
of the Kamla Nagar Branch Syndicate Bank from August 1984 to
April 1988; incident is of the year 1986. He had lodged the
complaint Ex. PW-14/C. In this complaint various allegations were
levelled against the various co-accused. It had been alleged that
the current account No.1732 of M/s Mahindra Estate and current
account No.1738 of M.K.Enterprises were fraudulent accounts. After
detaling the various allegations against the co-accused including the
Crl.Rev.P.122/2003 Page 10 of Page 20
petitioner a request for initiating an inquiry had been made. PW-14
has deposed that current account of M/s Mahindra Estates has been
introduced by proprietor of DD Electronics namely Darshan Lal
Manchanda having current account No.1636 who has however
denied having introduced any such account.
20. A perusal of the account opening form and specimen
signature card reflects that it had been chemically treated and
original material had been erased; further in the current account
No.1738 of M/s M.K.Enterprises a credit of Rs.5 lacs in the current
account ledger folio had been shown on 27.7.1986; this entry
appears on an erased surface of the folio and seems to have been
carried out by a rubber/erasing material; further the transfer/day
scroll of 27.7.1986 is missing and the loans of deposits sub day took
on 27.7.1986 is pasted by a sticking material like gum. Besides
these allegations there were other allegations which relate to the
role of the other co-accused; these specific allegations as
enumerated above related to the role of the present petitioner.
21. PW-14 has further deposed that the two forged accounts in
the name of M/s M.K.Enterprises and Mahindra Estates had been
opened in their branch in 1986 and both these said accounts were
found to be forged. The account opening form of Mahindra Estates
was verified by S.K.Bali who was the Assistant Branch Manager in
the branch at the relevant time.
22. This account opening form is Ex.PW-14/D. It shows that
current account No.1732 was opened in the name of Mahindra
Estates; back page of the document shows that this account was
Crl.Rev.P.122/2003 Page 11 of Page 20
introduced by DD Electronics and the signatures of the introducer
has been penned at Q-17D on Ex.PW-14/D purported to be that of
Darshan Lal Manchanda.
23. Darshan Lal Manchanda has come into the witness box as
PW-3. He has on oath deposed that he has a firm in the name of DD
Electronics at Wazirpur Industrial Area and is having current account
No.1636 at the Syndicate Bank Kamla Nagar. He has deposed that
he had not introduced M/s Mahindra Estate either for a current
account or for a saving account. His specimen signatures were
taken vide Ex.PW-3/A & B.
24. The CFSL had examined the questioned writings on Ex.PW-
14/D with the specimen handwritings of PW-3. The report of the
CFSL has been proved in the testimony of Dr.S.C.Mittal PW-8. There
are two reports of the scientific expert i.e. Ex.PW-8/A and Ex.PW-
8/B; Ex.PW-8/A is dated 31.7.1989, vide this report the scientific
expert had desired that the original documents be sent to him; in
the absence of which he could not give a conclusive report. Ex.PW-
8/B is dated 22.2.1991. This report is also inconclusive; there is,
thus, no scientific evidence with the prosecution to affirm the
statement of PW-3 that he had not signed Ex. PW-14/D. Yet his
ocular version remains unchallenged.
25. It is a settled principle of law that an opinion of an expert is a
relevant fact under Section 45 of the Evidence Act and no more; it
can be used for corroboration but in the absence of scientific opinion
the ocular testimony of a witness cannot be discarded.
Crl.Rev.P.122/2003 Page 12 of Page 20
26. Section 464 of the IPC describes the making of a false
document. It inter alia reads as follows :-
"..... a person makes a false document if he -
(1) Dishonestly or fraudulently makes, signs, seals or
executes a document, or part of a document, or makes any
mark denoting the execution of a document; and
(2) Does as above with the intention of causing it to be
believed that such document or part of a document was
made, signed sealed or executed,
27. Petitioner S.K.Bali was the Assistant Manager at the relevant
time. He had verified the introducer's signatures i.e. the signature
of Darshan Lal Manchanda on Ex.PW-14/D in the said capacity; it
was incumbent upon him to have verified from the account opening
form i.e. the current account No. 1636 of DD Electronics as to
whether the signature appended on Ex.PW-14/D was in fact the
signature of Darshan Lal Manchanda or not but he did not do so. He
had made a false document.
28. Necessary mense rea has to be gathered from the attendant
circumstances. What were the attendant circumstances?
Investigation had revealed that Mahindra Estates of whom the
proprietor was Mahender Narula having a current account No.1732.
This was a fictitious account opened on 7.6.1986 and in fact the
address which had been mentioned in Ex.PW-14/D of Mahindra
Estate i.e. A-347, Wazirpur Industrial Area, Delhi-43 does not exist;
this has come in the categorical version of PW-14 in his complaint
Ex.PW-14/C which had recorded "no premises in existence with the
declared address". Further the second account i.e. the account of
M.K.Enterprises having current account No.1738 was introduced by
Crl.Rev.P.122/2003 Page 13 of Page 20
Mahendra Estates, a non-existent entity. This account Ex.PW-14/E
and was opened on 15.6.1986. This evidence produced by the
prosecution is sufficient to bring home the charge of forgery which
had been levelled against the accused. Both the Courts below had
given a concurrent finding on this aspect.
29. To establish the ingredients of Section 468 of the IPC, it must
be established not only that the document is forged; but further that
the accused had intended that this forged document would be used
for the purpose of cheating. Cheating has been defined under
Section 415 and necessary ingredients of the said offence have
been discussed supra. Deception is the quintessence of the
offence. It means causing to believe what is false or misleading as
to a matter of fact or leading to error; such deception may be by
word or conduct depending upon facts of the each case. This
deception has to be qualified either by a fraudulent or a dishonest
inducement and is coupled with an act or an omission which is likely
to cause damage or harm to that person in body, mind, reputation
or property.
30. The person so effected in this case is the Syndicate Bank who
is the complainant. The petitioner by his act of verifying a false
document i.e. verifying the introducer's signature on the account
opening form Ex.PW-14/D which is an important prerequisite before
an account can be opened had facilitated in the opening of this
fictitious account in the Syndicate Bank i.e. of a non-existent person.
Fraudulent and dishonest intention to deceive the bank is writ large
qua the role of the present petitioner.
Crl.Rev.P.122/2003 Page 14 of Page 20
31. This is not the only instance of cheating and forgery for which
the petitioner had been convicted by the two Courts below. The
second incident is of the tallying of the balance of Rs.5,05,000/- in
the Balance Book of the Bank with the current account No.1738 of
M/s M.K.Enterprises. This document is Ex.PW-12/H i.e. entry dated
22.8.1986 showing a balance of Rs.5,00,500/- in the said account.
It has admittedly been signed by the petitioner. The petitioner has
also admitted this fact in his statement recorded under Section 313.
32. In answer to question no.4 he has stated that he had tallied
the current account No.1738 i.e. current account of
M/s M.K.Enterprises showing a balance of Rs.5,05,000/-; these are
two entries which are dated 8.8.1986 and 22.8.1986 on Ex.PW-12/H
i.e. the Balance Book of the Bank which had tallied the entries dated
4.7.1986 and 27.7.1986 on Ex.PW-14/F i.e. the current account
NO.1738 of M/s M.K.Enterprises showing the entires of Rs.500/- and
Rs.5 lac respectively.
33. Ravinder Kumar Dhawan PW-12 Special Assistant at Kamla
Nagar Branch Syndicate Bank had deposed that he used to maintain
the record of the loan and deposit ledger and was in charge of the
loan on deposit department of the said branch. He had reported that
in August 1986 the loan deposit (L.D.) ledger of the loan on deposit
was found to be missing and this was reported to J.C. Singhal; he
has further deposed that the entry of the loans is mentioned in the
register Ex.PW-12/A and loan number 394/86 at page no.397
pertaining to M/s M.K.Enterprises shows that on 27.7.1986 there is
an entry of Rs.5 lacs in favour of M/s M.K.Entrprises.
Crl.Rev.P.122/2003 Page 15 of Page 20
34. PW-14 J.C.Singhal has deposed that register Ex.PW-12/C
shows that there was an overwriting and on account No.599/86
Ex.PW-12/D, it is pasted with a part of page no.209 which account
pertains to M/s M.K.Enterprises. Ex.PW-12/G (photocopy is
Ex.PW-12/H) i.e. current account balancing book of M/s
M.K.Enterprises shows balance of Rs.5,05,000/- against the current
account No.1738 for balance of the account taken on 08.8.1986 and
22.8.1986 which bear the signature of S.K.Bali at point A. Further
the loan on the deposit account no.394/86 is in the name of M/s M.K.
Enterprises; the loan in ledger Ex.PW-12/A has been raised on
27.7.1986 for Rs.5 lacs against a deposit of Rs.3.6 lacs.
35. This ocular version of the aforestated witnesses coupled with
the admission of S.K.Bali that he had in fact tallied the aforestated
current account evidencing a balance of Rs.5,05,000/- in the
account of M/s M.K.Enterprises which is again a fictitious account, is
clearly a culpable mense rea i.e. the petitioner S.K.Bali having
appended his signature in token of this tally with a dishonest and a
fraudulent intention; obviously with the criminal purpose of
evidencing that a balance of Rs.5,05,000/- stood in this account
when this was an incorrect fact; this guilty intention is manifest in
the conduct of the petitioner. Ingredients of cheating as defined
under Section 415 stand established.
36. Now the question which arises is as to whether in the absence
of other co-accused who stand acquitted/discharged whether the
petitioner single handedly can be roped in for the offence of
conspiracy under Section 120 B of the IPC.
Crl.Rev.P.122/2003 Page 16 of Page 20
37. In AIR 1956 SC 469 Bimdadhar Pradhan supra i.e. the
judgment of Topan Dass had been considered by the Supreme
Court. The Apex Court had repelled the contention of the petitioner
that all the other co-accused persons having been acquitted; he
being a single person could not have been convicted under Section
120B of the IPC. While distinguishing the judgment as pronounced
in Topan Dass the Supreme Court had held that the judgment in
Topan Dass was based on the finding that the other co-accused had
been rightly acquitted by the Courts below and as such a single
person, in the absence of another, could not be convicted for a
criminal conspiracy. Reliance placed upon [1902] 2 K.B. 339 King vs.
Plummer has also been distinguished. The court observed that the
rules of English law as to the acquittal of the alleged conspirator
following from the acquittal of the other when the conspiracy was
said to be only between the two and in a joint trial of both is based
upon a rule of practice and procedure, namely, that repugnancy or
contradiction on the face of the record is a ground for annulling a
conviction. But such a repugnancy is not by itself a sufficient
ground for quashing a conviction in India where the matter is
governed by statutory law both as to the offence and the procedure
for bringing the offender to justice. The court further observed that
it is not essential that more than one person could only be convicted
of the offence of criminal conspiracy. It is enough if the court is in a
position to find that two or more persons were actually concerned in
the criminal conspiracy. Moreover although the State had not
challenged the correctness of the acquittal of the other co-accused
Crl.Rev.P.122/2003 Page 17 of Page 20
but nevertheless their acquittal may not have been entirely correct
and the Appellate Court can well consider this proposition.
38. In the instant case apart from the petitioner five other persons
had been charge sheeted along with him for the offence of criminal
conspiracy; Venu Gopal and Bhagya Nath having been acquitted by
the Sessions Judge on the ground that the scientific expert had
given them a clean chit entitling them to a benefit of doubt. Charge
of conspiracy had admittedly been framed against all the six
accused persons; it cannot be urged or argued that the petitioner
was unaware of the allegations of the conspiracy against him; he
was fully apprised of the same. It is also not sure whether the
acquittal of the co-accused by the Courts below was well founded in
law or justified in the evidence of the case. Trial Court had not
disbelieved the evidence. It had only given a benefit of doubt to the
accused when they had been acquitted; this Court is also not sure
as to whether the acquittal of the other co-accused was entirely
correct; however since they are not before this Court, this Court
need not go into this aspect.
39. In this connection the observation of the Supreme Court in the
case of 1954 1 SCR 195 Dalip Singh vs. State of Punjab and the
Federal Court in (1949) FCR 834 Kapil Deo Singh vs. The King are
relevant. It is not essential that more than one person should be
convicted of the offence of criminal conspiracy. It is enough if the
Court is in a position to find that two or more persons were actually
concerned in the criminal conspiracy. If the Courts below had come
to the distinct finding that the evidence led on behalf of the
Crl.Rev.P.122/2003 Page 18 of Page 20
prosecution was unbelievable, then certainly no conclusion could
have been based on such evidence and the present petitioner along
with the other co-accused would have been entitled to an acquittal.
But this is not borne out from the reading of the judgments below.
40. Conviction of the petitioner calls for no interference.
41. On the question of sentence, the maximum substantive
sentence which the petitioner had been directed to undergo is one
year for the offence under Section 468 of the IPC and a fine of
Rs.5000/-. For the offence under Section 417 of the IPC the
petitioner had been sentenced to undergo a substantive sentence of
six months and to pay a fine of Rs.5000/-. Fine has since been
deposited. Under Section 468 of the IPC punishment prescribed is
imprisonment of either description for a term which may extend to
seven years and shall also be liable to fine. Intention of the
legislature can be gathered from this penalty clause; sentence
prescribed is both imprisonment as also fine. The imprisonment
may extend up to seven years.
42. The only special circumstance pleaded before this Court for
the reduction of the sentence is the submission that the petitioner
has suffered a long and protracted trial since the year 1986; the
petitioner is an educated class-I gazetted officer posted as an
Assistant Manager in the Syndicate Bank at the relevant time. It is
submitted that in case this Court is not inclined to modify the
conviction the petitioner in all probability will lose his job. Taking
into account all the aforestated circumstances, the maximum
substantive sentence of one year awarded to the petitioner under
Crl.Rev.P.122/2003 Page 19 of Page 20
Section 468 of the IPC is reduced to RI six months. No modification
is made in the fine and no modification is made in the other
sentences which had been imposed under the other statutory
provisions.
43. With these directions this petition is disposed of.
(INDERMEET KAUR)
JUDGE
November 27, 2009
nandan
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