GR 492/2010
In the Court of Additional Chief Judicial Magistrate : Dibrugarh Judgment of Case No.GR 492/2010
u/s 420 IPC
State
­Vs ­
1. Shri Balindra Nath Konwar Present :­ Imdad Ahmed , A.J.S
Advocates appeared :
For defence :­ Md. Yusuf Rahman ,Advocate For Prosecution :­ Ms I.J Gogoi , A.P.P
Evidence recorded on :­ 13­05­13 , 18­6­13 , 10­9­13,17­12­13 ,29­10­15.
Argument heard on :­ 16­05­16
Date of Judgment :­ 30­05­16
Judgment delivered on :­ 30­05­16 JUDGMENT
1.
The facts of the case in brief is that a joint ejahar was lodge on 23­10­2010 by Shri Gautam Das , Shri Rajat Das , Shri Santosh Debnath , Md Azad Ahmed , Shri Samsunder Paul , Shri Anjan Paul and Ashotush Paul to the effect that the accused Shri Balindra Nath Konwar took various goods from their shop on different date and time and gave fake cheques as 1
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payment of the price of the purchased goods . The informants has stated that on enquiry , they found that that there is not even a single paisa in the Savings account of the accused . It is further stated that even after repeated demands , the accused did not paid the price of various goods purchased from the informants and only gave them hollow assurances . 2.
On receiving the ejahar , the Police registered it as Duliajan P.S Case No. 201/2008 u/s 419/420 IPC and started investigation into the matter .I.O visited the P.O and started his investigation . On completion of investigation , I.O submitted the charge­sheet against the accused person under Section 419/420 IPC .
3. After charge­sheet was filed , this Court took cognizance of the case under Section 419/420 I.P.C and issued summons for appearance of the accused .On appearance of the accused , all the necessary copies of police report and and other documents related to the case were supplied to the accused . Charge under Section 420 IPC was framed against the accused person which was read over and explained to the accused person to which he pleaded not guilty and claims to be tried .
4.
During the trial of the case , prosecution side examined 7 (seven ) witnesses including the I.O . Accused was examined under Section 313 Cr.P.C and his case was of total denial . 5.
I have heard the learned counsel for the accused and learned Addl. P.P for the State.
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6.
After hearing both sides and after perusing the materials on record , the following point for determination is framed by me for the just decision of the case . 7.
Point for determination :­
1. Whether the accused persons cheated the 7 ( seven) informants by dishonestly inducing them to deliver various goods to him from their respective shops on various dates during the year 2010 ? 8.
Discussions , decision and reasons therefor :­
9.
PW1( Shri Gautam Kumar Das ) is one of the informant . PW1 stated that the accused purchased some electrical goods from his shop and in lieu of the price of the said electrical goods , the accused delivered a cheque of Rs 5500/­ and cash amount of Rs 20/­ to him . PW1 stated that he thereafter presented the cheque before his Banker for encashment but the said cheque was returned dishonoured . PW1 stated that one day , when he met the accused on the road , he asked him about the money due to him and at that time , some other persons who are similarly situated also gheraoed the accused . PW1 stated that those other persons were also cheated by the accused by issuing cheques in lieu of price of the purchased goods but all the cheques were dishonoured . PW1 stated that they apprehended the accused and handed him over to the police . PW1 exhibited the ejahar as 3
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Exhibit­1 and his signature in the ejahar as Exhibit­1 (1) . PW1 stated that the police had seized the cheque issued by the accused to him . PW1 exhibited the seizure list as Exhibit­2 and his signature in the seizure list as Exhibit­2 (1) . 9.
During cross­examination , PW1 stated that the accused was gheraoed on the road by the informants on 19­03­2010 but the cheque was delivered to him by the accused on 13­01­2009 .PW1 stated that he has not mentioned the number of cheque in the ejahar . PW1 stated that the bank documents in respect of the dishonored cheque was handed over to the investigating agency . 10.
PW2 ( Shri Santosh Debnath ) stated that he knows the accused . PW2 stated that one day , the accused purchased one Golden ring from his Jewelery shop and in lieu of the price money , he handed him a cheque of Rs 4,800/­ to him . PW2 stated that lateron , it was found that the account number mentioned in the cheque is wrong . PW2 stated that the accused gave a wrong address to him .PW2 stated that after about one year from the said transaction , he found the accused and thereafter , lodge an ejahar jointly with some other shopkeepers who were similarly situated . PW2 stated that the incident is of 31­01­2009 and the ejahar was lodge on 19­03­10 . PW2 stated that the ejahar was lodge about one year because they could not find the accused . PW2 stated that he issued the cheque memo to the accused but he did not furnished the cheque memo number to the police. PW2 stated that he had handed over the cheque to the police . PW2 stated 4
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that he did not obtained any relevant document from the bank to prove dishonor of the cheque .
11.
PW3 ( Shri Rajat Das ) stated that he is one of the joint informant .PW3 stated that he is the owner of a watch shop namely Royal Watch Co . PW3 stated that he sold watch and mobile handset in his shop . PW3 stated that on 07­12­2009 , the accused came to his shop and purchased one watch and one mobile handset and made payments through a cheque of Rs 6200/­ . PW3 stated that on the next day , he presented the said cheque to his banker but his banker informed him over phone that there is no account number in the name of the accused in the State bank of India .PW3 stated that on 19­03­2010, he saw a gathering in the market and when he went near the gathering , he saw the accused in the middle of the said gathering and the people has apprehended him because he issued fraudulent cheques to various persons . PW3 stated that he thereafter handed over the accused to the police .PW3 exhibited his signature in the ejahar as Exhibit­1 (3) .
12.
PW4 , PW5 , and PW6 are the other informants who were alleged to be cheated by the accused persons by issuing fraudulent cheques .
13.
PW6 ( S.I Shri Dulal Mahanta ) stated that on 20­03­2010 , he was serving as the Sub­Inspector of Duliajan Police .PW6 stated that the O/C of the Duliajan Police Station after registering the case endorsed the case to him for investigation . PW6 stated that he met all the informants and the accused at the police station and accordingly recorded the statement of all 5
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witnesses . PW6 stated that he seized all the cheques issued on various dates by the accused persons to the informants in presence of seizure witness . PW6 stated that he collected the specimen signature of the accused and thereafter , send the cheques and the specimen signature to the Forensic Science laboratory for comparison . PW6 stated that he thereafter collected the report from the FSL and as per FSL report , the signature in the cheques tallies with the specimen signature of the accused . PW6 stated that after finding sufficient materials against the accused , he submitted the charge­sheet against the accused persons . PW6 exhibited the seizure list as Exhibit­2 and his signature in the seizure list as Exhibit­2 (3) . PW6 exhibited the cheque no.635900 of SBI : Sonari branch as Exhibit ­1 which was signed by the accused on 13­01­2009 and drawn from the Account no. 11393247755 . PW6 exhibited another cheque bearing no342118 drawn at SBI : Sonari Branch of Rs 6200/­ payable to Shri Rajat Das and the account number is mentioned to be 11393245755 . PW6 exhibited the seizure list as Exhibit­3 and his signature in the seizure list as Exhibit­3 (3) .PW6 exhibited altogether seven cheques seized by the accused person along with the seven seizure list . PW6 exhibited the charge­sheet as Exhibit­9 and his signature in the seizure list as Exhibit­9 (1) . PW6 exhibited the charge­sheet as Exhibit­10 . 14.
These are all the evidence adduced by the prosecution . All the witnesses examined by the prosecution are the informants of the joint ejahar .PW1 to PW5 stated that the accused persons issued various cheques to them as price of various articles purchased from their respective shops by the accused but the prosecution did not produced the return memos of the 6
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cheque returned by the bank . In the absence of cheque returning memos , the ground for dishonor or return of the cheque could not be ascertained . PW6 ( I.O) stated that in his cross­examination that he did not examined the Bank official of the Bank of the accused . The examination of the bank official of State bank was necessary in order to prove that there is no account in the name of the accused in the State bank of India as alleged by the informants and the fact that the cheques were presented by the accused before the Bank for clearance . The fact that an account does not exist in the name of the accused and that the cheques were presented for clearance remained unproved due to non­examination of the Bank Manager of the State bank of India . Further , the account number of the accused was not printed on the cheques issued by him and from the FSL expert , it could not be ascertained whether the account number of the accused written on the cheques were written by the accused or by some other person . Further , the cheques were issued by the accused on 13­01­2009 , 31­01­2009 , 07­01­2009 , 31­05­2009 , 31­01­2009 respectively to the informant no.1 to 6 respectively but the joint ejahar was lodge on 20­03­2010 which is almost nearly one year after the cheques were presented by the informants for clearance . The informants had failed to explain why they took almost one year to lodge an ejahar when they were informed about such dishonor of cheques immediately after the cheques were presented for clearance . The delay in lodging the ejahar was explained by the informants by saying that there was delay due to the fact that the accused was nowhere to be found is not a very satisfactory explanation as the informants were not supposed to wait for several months to lodge the ejahar. It is the duty of the police to trace out the offender whereas it is the duty of the victim of crime to institute the case very 7
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promptly . In criminal case , the prompt institution of the ejahar rules of any form of doubt in the case of the prosecution but , in the instant case , the delay of several months in institution of the case has raised doubt in the case of the prosecution . Further , due to non –examination of the Bank official of the State bank of India , the allegation that the accused did not have any account in his name has remained unproved . The fact that the cheques were actually presented for clearance by the informants had also remained unproved due to non­examination of the Bank official of the State bank of India . The prosecution also failed to prove the account number with reference to which the said cheques were issued by the concerned authority of State bank of India . It was necessary for this Court to know to which account number , the cheques issued by the accused belongs to and the prosecution could have been easily done it by examination of the Bank Official of the State Bank of India . Further , the non­examination of the FSL expert by the prosecution has deprived the accused of his right to cross­
examine the FSL expert on his report . Hence , the evidence adduced by the prosecution appears to be quite inadequate to bring home the charge of cheating against the accused and hence , the benefit of doubt should be given to the accused person .
15.
It is therefore held that the prosecution has failed to prove the case beyond reasonable doubt against the accused Shri Bolindra Nath Konwar and he is therefore entitled to be acquitted on the ground of benefit of doubt. 8
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16.
Accordingly , the accused Shri Balindra Nath Knowar is acquitted and set at liberty . 17.
Bail Bond is extended till the expiry of six months from today . th
Given under my hand and seal of this Court on this 30 day of May , 2016 at Dibrugarh .
Addl CJM : Dibrugarh 9
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Appendix
Prosecution Witness :­
PW1 :­ Mr. Gautam Kr. Das.
PW2 :­ Sri Santosh Debnath.
PW3 :­ Mr. Rajat Das.
PW4 :­ Mr. Sudarshan Paul.
PW5 :­ Md. Azad Ahmed.
PW6 :­ Sri Ashetush Paul.
PW7 :­ Mr. Dulal Mahanta.
Defence witness :­ None Exhibits :­ None.
Prosecution exhibits :­ Exhibit­1 :­ F.I.R Exhibit 2, 3, 4, 4, 5, 7, 8 :­ Seizure Memo.
Exhibit 9 :­ Charge­sheet.
Exhibit 10 :­ FSL Report.
Defence exhibits : ­
None Court witness :­ None Court exhibits :­ None Addl. CJM, Dibrugarh.
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