Daya Shanker Agarwal vs State of U.P. and Others

B.K. Sharma, J.—Heard Sri S.C. Srivastava for the accused No. 1-the present revisionist; Sri V.K. Agrawal, learned Counsel for the complainant-present opposite party No. 2 and the learned A.G.A. representing the State of U.P., opposite party No. 1 and also perused the record. The accused No. 2, present opposite party No. 3 Prem Chand had died during the pendency of this revision.

A criminal complaint was filed by Bhagwati Prasad present opposite party No. 2 (hereinafter referred to as the complainant) against Daya Shanker (accused No. 1-present revisionist) (hereinafter referred to as the accused-revisionist) and Prem Chand Agrawal, accused No. 2 present opposite party No. 3 (hereinafter referred to as accused No. 2) for the offences Under Sections 465, 467 and 471, I.P.C. with the allegations that he had purchased a 7 years National Saving Certificate (National Defence Certificate) for a sum of Rs. 1,000 in which he gave his address as M/s Bansal Traders, Hathras because he worked at that time at the firm Bansal Traders, Hathras; that the N.S.C. (N.D.C.) was given by him before the Regional Food Controller (Senior Marketing Inspector, Hathras) by way of security ; that when he tried to take back the N.S.C. (N.D.C.) from the office of Senior Marketing Inspector, he learnt that it has been taken back by the accused-revisionist whereupon he met him (the accused-revisionist) and asked him to return the same on which he admitted taking the N.S.C. from the office of the Senior Marketing Inspector but claimed that at that time it was in the custody of the postal authorities; that on enquiry being made by him, he learnt that its payment was made by the then Sub-Postmaster of Sub-Post Office Nayaganj, Hathras to the accused-revisionist at the identification of accused No. 2. It was also alleged by the complainant that both these accused were inter-related. It was further claimed by him that accused-revisionist forged his signatures (i.e., signatures of the complainant) on the N.S.C. impersonating himself as him (the complainant) ; that then he met the postal authorities and made a complaint to the Post Master General and others but as no action had been taken in that matter to his Knowledge; he preferred the criminal complaint.

It was claimed by the complainant in the complaint that the above acts were done by the accused persons with intention to defraud and injure him and that they even used the same and obtained money from the post office; that their intention also was to fabricate other documents and take proceedings setting up these signatures as his signatures. Consequently, he prayed that both these accused be summoned for the offences Under Sections 416, 465, 467 and 471, I.P.C. The complaint was registered as case No. 87 of 1979 but later on numbered as 394 of 1982.

On the basis of the statements recorded Under Sections 200 and 202, Code of Criminal Procedure the learned Magistrate summoned both the accused. However, after hearing the counsel for the parties on charge, he discharged both the accused persons by his order dated 18.2.1983 u/s 245, Code of Criminal Procedure The complainant Bhagwati Prasad had examined himself as P.W. 2 and narrated the facts as narrated in his complaint. He also examined T.N. Dubey, Assistant Post Master, Hathras as P.W. 1, Sri T.N. Dubey had brought the original N.D.C. and the application on which it was issued and filed before the Magistrate its photo copy and also filed the original, statements of the complainant and Prem Chand accused No. 2 given in the enquiry made on the complaint of the complainam. It may be mentioned here that Prem Chand stated in his statement in that enquiry that the accused-revisionist brought to him a bond and told him that he wanted to take this bond encashed from the post office but the postal authorities did not know him and so he will have difficulty ; that he (the accused-revisionist) told him that this bond is of Bhagwati Prasad; that he (the accused-revisionist) was accompanied by another person whom he (Prem Chand accused No. 2) did not know from before and introduced that third person to him (i.e., to Prem Chand accused No. 2) as that Bhagwati Prasad and then they went to the post office ; that at the instance of the accused-revisionist, he (Prem Chand accused No. 2} identified (as a witness) the signatures made by that 3rd person ; that the postal clerk demanded identification of a person known to the post office, whereupon he took K. K. Bansal, Sub-Post Master of Nayaganj, Hathras and got the attestation done by him (K. K. Bansal) and the payment was then made by the post office to that 3rd person. In that statement, Prem Chand accused No. 2 claimed that he was innocent and has been cheated by Daya Shanker accused-revisionist by falsely representing that 3rd person as Bhagwati Prasad. He had further stated before the postal authorities that since he had made the attestation, he assumed responsibility for the wrong payment and was willing to make payment of the amount and he actually deposited the amount of Rs. 1,480 (equivalent to the amount paid by the post office) in the bank. In his statement on oath before the Magistrate, the complainant had claimed that the signatures made on the National Defence Certificate were of the accused-revisionist Daya Shanker Agrawal. The complainant Bhagwati Prasad also filed and proved in his evidence a memo from the office of the Senior Superintendent of Post Office, Aligarh, narrating the facts that the N.D.C. in question was discharged at Hathras on 26.08.1978 but the payment was made to a person other than the real holder with interest accrued thereon which came to Rs. 480, that the value of the N.D.C. and the interest paid was, however, recovered from the identifier and credited at Hathras (sub-office) and by this letter, sanction had been accorded for payment of this amount to Bhagwati Prasad Agrawal, the complainant (present Opposite Party No. 2). The statement on oath given by the complainant before the learned Magistrate indicated that at that time he had received payment of the amount from the post office.

The learned Magistrate after hearing the arguments of the parties'' counsel on the question of charge observed that the argument of the accused-persons was that the N.D.C. was in the name of Bansal Traders and that according to accused Prem Chand it was paid at the instance of accused No. 1 (present revisionist) on his identification and that he (Prem Chand) did not know the person who was identified by him. He mentioned the statement of the complainant Bhagwati Prasad that the bond (N.D.C.) was purchased in the name of M/s. Bansal Traders and that Daya Shanker (present accused-revisionist) was owner of that firm and that the certificate had been pledged with the R.F.C. office, Meerut for Bansal Traders. He also placed on record the arguments that Daya Shanker (present accused-revisionist) did not sign the bond for payment and so no offence is made out as against him and that Prem Chand was not liable criminally as he had made the identification because he was mis-led. The Magistrate came to the conclusion on the basis of the enquiry report of the postal authorities that Daya Shanker accused-revisionist did not forge any signatures on the document but that some other person had signed on it in place of Bhagwati Prasad (complainant-present opposite party No. 2). It was also observed by him that there was no clear evidence in support of the claim of Bhagwati Prasad complainant (present opposite party No. 2) that the signatures on the documents were made by Daya Shanker (present accused-revisionist). He consequently, held that Daya Shanker present accused-revisionist could not be charged because he did not sign for payment. The learned Magistrate also observed that from the evidence, it is not clear that as to what benefit was obtained by Prem Chand (present opposite party No. 3) by making identification of some other 3rd person as Bhagwati Prasad and that rather the postal enquiry indicates that Prem Chand was himself misled as he was not knowing the person whom he had identified and the person was falsely represented to him as Bahgwati Prasad (complainant- present opposite party No. 2). He also observed that the acts done by none of these two accused could fall in the ambit of dishonesty or fraud as they did not obtain any benefit and further because the bonds stood in the name of Bansal Traders.

This order of the learned Magistrate was challenged by Bhagwati Prasad, complainant by way of revision (being Criminal Revision No. 171 of 1983) before the Court of Session and it was eventually decided by Sri R.S Tripathi. The then Vth Additional Sessions Judge, Aligarh. The learned Additional Sessions Judge allowed the revision observing that it comes out from the statement of T.N. Dubey P.W. 1 that the payment of the N.D.C. was obtained by making the identification of the complainant-present opposite party No. 2, that the complainant had testified that he did not obtain the payment of the money of N.D.C. and had testified to the obtaining of payment by both the accused in concert with each other. He has also referred to the statement of Prem Chand (accused-present opposite party No. 3) recorded in the enquiry held by the postal department and observed that from it, it was clear that he was taken by Daya Shankar Agarwal (present accused-revisionist) with him and that it was by taking steps for payment that the N.D.C. was encashed, that the said statement of Prem Chand is of importance though the question as to how much fact would be held established on its basis will have to be considered at a later stage (at the stage of trial) but on the present stage of the case, this evidence cannot be held to be without importance. Consequently, he came to the conclusion that there was sufficient material for framing the charge against both the accused Daya Shanker Agarwal and Prem Chand for the offences Under Sections 465, 467 and 471, I.P.C. He also observed that the learned Magistrate did not take notice of the benefit obtained by both the accused. He consequently, found the order of the learned Magistrate untenable and set aside the same with a direction to the learned Magistrate to take further proceedings by reconsidering the available evidence on record or giving further opportunity to the complainant (present opposite party No. 2) to lead further evidence, if necessary. It is this judgment and order dated 09.12.1983 passed by the Additional Sessions Judge, which has been challenged before this Court by way of this revision.

The learned Counsel for the revisionist has made a futile attempt to show that the judgment and order of the learned lower revisional court was unsustainable. His contention is that since the N.S.C. (N.D.C.) was pledged with the R.F.C. on behalf of Bansal Traders, the accused-revisionist was not liable. He has also argued that he was also not liable as the money had already been paid to Bhagwati Prasad complainant-present opposite party No. 2, as is clear from the postal enquiry. He has also claimed that the order of the learned Additional Sessions Judge cannot be supported because the original N.D.C. was not filed before the Magistrate.

Section 245 of the Code of Criminal Procedure enables the Magistrate to discharge the accused only if after taking all the evidence referred to in Section 244, Code of Criminal Procedure the Magistrate considered for reasons to be recorded that no case against the accused has been made which, if unrebutted, would warrant his conviction and not otherwise. If there is a prima facie case existing as is undoubtedly the case here, the charge has to be framed. The order of the learned Magistrate could not be supported in any manner.

The mere fact that the bond stood in the name of Bansal Traders and the fact that the N.D.C. was pledged on behalf of the firm with the R.F.C. as its security taken together did not rebut the prima facie case against this accused-revisionist. There is the testimony of the complainant (present opposite party No. 2) that the signatures made on the N.D.C. Were of the present accused-revisionist and the statement of Prem Chand opposite party No. 3 in the postal enquiry was that the present accused-revisionist had come to him and represented that the 3rd person brought by him with himself was Bhagwati Prasad and on this representation, he (the accused-revisionist) got the signatures made by that 3rd person on the bond identified by him and consequently, the payment was made to that 3rd person. In either case, the present accused-revisionist is prima facie liable. It is not the case of this accused-revisionist that the money by which the N.D.C. was purchased by Bhagwati Prasad (complainant-present opposite party No. 2) was advanced to him (the complainant) by him (the accused-revisionist) or by the firm and that consequently, he (the accused-revisionist) had obtained its payment. Furthermore, when prima facie Bhagwati Prasad complainant had purchased the N.S.C., prima facie its payment could be obtained only by Bhagwati Prasad complainant and not by the revisionist or anyone representing the firm on general principles and also as per postal rules.

The learned Counsel for the revisionist has relied on the authority Tagal Narain u. State 1967 ACC 287, where the term ''defraud'' was interpreted. But, this authority is of no help to the accused-revisionist. Even if the bond was purchased by the money of the revisionist or the firm, since the bond stood in the name of the complainant, the revisionist (even if he had obtained the National Defence Certificate back from the R.F.C. Office where it had been pledged), prima facie could either call upon Bhagwati Prasad complainant to obtain its payment and deliver it to him or the firm or to approach the civil court to establish his or the firm''s title to the amount in the bond. At any rate, it was only, at the trial that it could be shown by the accused-revisionist that the money for purchase of the bond was advanced by him (the revisionist) or by the firm and that consequently, there was no case of wrongful loss or wrongful gain. However, at this stage. Prima facie the complainant-opposite party No. 2 alone was entitled to receive payment of the amount with which they said N.S.C. (N.D.C.) was purchased by him and also the interest accrued thereon and consequently whether the present accused-revisionist signed on the N.D.C. falsely impersonating himself as Bhagwati Prasad (complainant-present opposite party No. 2) and himself obtained its payment or whether he set up a third person and represented to Prem Chand (present accused-opposite party No. 3) that the said third person was Bhagwati Prasad, who he was not, and thus made Prem Chand present accused-opposite party No. 3 to identify that third person as Bhagwati Prasad (complainant-present opposite party No. 2) and got the payment made to that person, there was a prima facie intent of the accused-revisionist to defraud and there was prima facie injury to the complainant-present opposite party No. 2. It was immaterial that subsequently Prem Chand, who found himself in the dock for having identified a person other than Bhagwati Prasad as Bhagwati Prasad (who he was not), which led to wrong payment to that third person of the amount to which prima facie the complainant present opposite party No. 2 was entitled, deposited an equivalent amount in bank/office and that eventually the said amount was paid to the complainant. There was prima facie offence made out Under Sections 465, 467 and 471, I.P.C. and the learned Magistrate had no option than to charge this accused-revisionist and, in fact, the other accused Prem Chand also for the said offences. Accused Prem Chand had died and so now there remains only the present accused-revisionist. No exception could be taken to the course adopted by the learned lower revisional court in setting aside the discharge order and making a direction for the Magistrate to proceed further after reconsidering the evidence already on record (obviously in the light of the observation made in the revisional judgment of the Additional Sessions Judge) or after taking such further evidence that he may feel necessary to be taken from the side of the complainant and then to proceed further in accordance with law.

Consequently, this revision fails and is dismissed and the judgment and Order dated 09.12.1983 in Criminal Revision No. 171 of 1983 passed by the learned Vth Additional Sessions Judge is upheld. The record of the Court below shall be immediately transmitted back by the office to the Magistrate concerned along with a certified copy of this judgment and order within a week from today to enable the learned Magistrate to proceed further in accordance with law in the light of the remand order made by the learned lower revisional court.