Dismissed

Deepak K Joshi v. State of Karnataka

Karnataka HC17 Dec 2020CRL.RP/471/2011

Case brief

AI extract

What is this about?

In a criminal revision petition under Section 397 CrPC, the High Court dismissed the appeal against conviction for cheating and forgery involving fake letters of credit. The Court held that the petitioner's failure to explain the source of forged documents established dishonest intent, confirming the lower courts' order.

What did the court decide?

Petition dismissed; conviction and sentence confirmed; petitioner directed to surrender by 28.12.2020.

Deepak K Joshi Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2020)

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Crl.R.P.No.471/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.471/2011

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BETWEEN :

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DEEPAK K.JOSHI S/O. LATE KANTILAL JOSHI AGED ABOUT 42 YEARS R/AT NO.28, ANJANEYA TEMPLE II STREET, LINK ROAD BENGALURU-560 020 PRESENTLY R/AT NO.87/1 8^TH CROSS, 1^ST MAIN LOWER PALACE ORCHARD BENGALURU- 560 003 …PETITIONER

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(BY SRI C.H.JADHAV, SENIOR COUNSEL FOR SRI VISHNU MURTHY, ADVOCATE)

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AND :

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STATE OF KARNATAKA BY ULSOOR GATE POLICE STATION …RESPONDENT

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(BY SRI VINAYAKA.V.S. HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 08.10.2010 PASSED BY XVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.4415/2005 AND TO SET ASIDE THE ORDER DATED 21.03.2011 PASSED BY FAST TRACK SESSIONS COURT-XVI, BENGALURU IN CRL.A.NO.775/2010.

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Crl.R.P.No.471/2011

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THIS CRIMINAL REVISION PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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Aggrieved by the orders of conviction and sentence passed against him for the offences punishable under Sections 420, 468 and 471 of IPC, the petitioner is before this Court in this revision petition.

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Petitioner was prosecuted in C.C.4415/2005 on the file of XVII Additional Chief Metropolitan Magistrate, Bangalore on the basis of charge sheet filed by Ulsoor Gate Police in Crime No.312/2002 of their station for the offences punishable under Sections 468, 471, 420 read with Section 511 IPC.

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The case of the prosecution in brief was as

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follows:

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i) That the petitioner was proprietor of Sri Chamundi Global Company situated at Link Road, Bengaluru and was holding current account No.C/D-76 in Jammu & Kashmir Bank Ltd., OTC Branch, Bengaluru.

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ii) On 16.07.2002 Ex.P3 the letter of credit along with covering letter Ex.P2 purportedly issued by Dena Bank, Subhanpura Branch, Vadodara on behalf of R.K. Trading Company for a sum of Rs.99,90,000/were presented in petitioner’s account in Jammu & Kashmir Bank Ltd. O.T.C Road Branch, Bengaluru.

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iii) PW.2 the Manager in Jammu & Kashmir Bank Ltd. O.T.C Road Branch sent the same along with its covering letter Ex.P1 to the Manager of Dena Bank, K.G.Road Branch for verification. The petitioner physically carried Exs.P1 to 3 to Dena Bank, K.G.Road Branch and presented them before PW.1.

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iv) PW.1 verified the signatures on Exs.P2 and 3 with reference to specimen signatures available in their office and found that they were not matching. Therefore, he sought verification of the same from PW.9

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the Regional Manager of Dena Bank, Subhanpura Branch, Vadodara, Gujarat.

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Crl.R.P.No.471/2011

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v) PW.9 in turn enquired with PW.8 the Manager and PW.7 the Official of Dena Bank, Subhanpura Branch, Vadodara. On verification of the records, PWs.7 & 8 stated that Exs.P2 and P3 were not issued by any of the officials of their branch, Exs.P2 & P3, seals and signatures on the same were fake and forged one. Dena Bank, Subhanpura Branch, Vadodara was not even authorized to issue letters of credit.

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vi) The Investigating Officer deputed PW.4 constable to enquire about R.K.Trading Company on whose behalf Exs.P2 and P3 were issued and collect specimen signatures of the officials of the Dena Bank. PW.4 collected the specimen signatures, enquired about R.K. Trading Company and submitted report Ex.P11 to the Investigating Officer. His enquiry revealed that R.K. Trading Company was fictitious person.

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vii) The Investigating Officer referred the disputed signatures, specimen signatures and handwriting of the petitioner, PWs.7 & 8 to PW.5 and his report was received as per Exs.P21 and P22.

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viii) The investigation revealed that the

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petitioner with the dishonest intention of making wrongful gains and to cheat the Bank, forged Exs.P2 & P3 and submitted them to the Bank. Therefore the petitioner was charge sheeted.

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On receipt of charge sheet, the Trial Court summoned the petitioner and tried him for the charges for the aforesaid offences. On trial and on hearing the parties, the Trial Court by the impugned judgment and order dated 08.10.2010 convicted him for the offences punishable under Sections 420, 468 and 471 of IPC. Further, the trial Court sentenced him to simple imprisonment of one year and fine of Rs.1,000/- for each of the aforesaid offences with default sentence.

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The petitioner challenged the said order of conviction and sentence before the Presiding Officer, Fast Track Court-XVI, Bengaluru City in Crl.A.No.775/2010. The First Appellate Court by the impugned judgment and order dated 21.03.2011

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dismissed the appeal confirming the order of conviction and sentence passed by the trial Court.

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The trial Court and the First Appellate Court held that the charges brought against the accused were proved by the evidence of PWs.7 to 9 the officials of Dena Bank, Subhanpura Branch, Vadodara, PW.2 the official of Jammu and Kashmir Bank Ltd., OTC Road Branch, PW.1 the complainant, PW 10 and PW.11 the Investigation Officers, PW.4 who enquired about R.K. Trading Company and PW.6 - the P.S.I. who registered the FIR Ex.P25. The trial Court placed reliance on Exs.P17 to P19, the current account opening forms and the letters of proprietorship, Exs.P1 to P3 letters of credit and covering letters.

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The prosecution was expected to prove the following facts:

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(i) Accused had account in Jammu & Kashmir Bank Ltd. OTC Branch, Bengaluru and was solely operating that;

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(ii) Exs.P2 and P3 covering letters and letters of credit purportedly issued for R.K. Trading Company were presented on petitioner’s behalf in his account in Jammu & Kashmir Bank Ltd., OTC Branch;

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(iii) The petitioner presented Exs.P1 to 3 before PW.1 in Dena Bank, K.G.Road Branch, Bengaluru;

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(iv) The said letter of credits were fake and forged one and such presentation of Exs.P1 to P3 by the petitioner was with dishonest intention to cheat the bank.

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Regarding the petitioner operating the account in Jammu & Kashmir Bank Ltd., OTC road.

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To prove that the petitioner was holding a current account in Jammu & Kashmir Bank Ltd., OTC road, Bengaluru, the prosecution relied upon the evidence of PW.2 - the Chief Manager of Jammu & Kashmir Bank Ltd., and Exs.P17 to 19 and the evidence of PW.11 - the Investigating officer.

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PW.2 - the Chief Manager of Jammu & Kashmir Bank Ltd., deposed that the petitioner submitting Ex.P17 to P19 had opened the current account in their branch and was operating that. PW.11 stated that he collected Exs.P17 to 19 - the current account opening form and sole proprietorship letters from the Manager of the Bank. In the cross-examination of these two witnesses, the petitioner holding a current account in Jammu & Kashmir Bank Ltd., OTC Road Branch and he solely operating the account was not disputed. Therefore, that fact stood proved.

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Regarding presentation of Exs.P2 and P3 on behalf of the petitioner on his account and the petitioner presenting them along with Ex.P1 in Dena Bank before PW.1.

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To prove that Exs.P2 and 3 - the letter of credit and a covering letter to that purportedly issued by Dena Bank, Subhanpur Branch and in turn they were

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sent to Dena Bank, K.G. Road Branch with covering

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letter Ex.P1, the prosecution relied upon the evidence of PWs.1 and 2.

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Ex.P3 is the letter of credit purportedly issued by Dena Bank, Subhanpur Branch of Vadodara for one R.K.Trading Company (applicant), Stock Exchange building, Sayaji Gunj Branch, Vadodara for a sum of Rs.99,90,000/-. Ex.P2 purports to be a covering letter to Ex.P3 addressed by Dena Bank, Subhanpura Branch to Sree Chamundi Global Company (beneficiary), the petitioner’s company.

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Ex.P2 states that Mrs. R.K.Trading Company

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is the client of Dena Bank, Subhanpur Branch and the enclosed inland letter of credit - Ex.P3 was issued favoring Sree Chamundi Global Company for the transactions of R.K.Trading Company.

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PW.2 states that he sent Exs.P2 and 3

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along with the covering letter - Ex.P1 to Dena Bank, K.G.Road Branch for confirmation. In the cross-

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examination of PW.2, it was not disputed that Exs.P2

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and P3 were received on the account of the petitioner. It was only suggested that the normal procedure to send the letters of credit for confirmation to the issuing Bank is through post. Thereby, presentation of Exs.P2 and P3 drawn for one R.K. Trading Company in favour of petitioner in his account was proved.

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PW.1 - the then Senior Manager of Dena Bank, K.G. Road Branch deposed that on 16.07.2002 the petitioner appeared before him along with Exs.P1 to 3 and when he verified Exs.P2 and 3 with reference to the specimen signatures available in their Bank’s specimen signatures pool, they did not match. Therefore, he reported the matter to their Regional Office, Bengaluru who in turn reported the same to Vadodara Regional Office, their enquiry revealed that Exs.P2 and P3 were not issued by Dena Bank, Subhanpura Branch.

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In the cross-examination of PWs.1 and 2

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also the only suggestion was that generally the letter of credit is not handed over to the party by issuing Bank

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and a denial of the petitioner’s visit to their Bank. The Trial Court and the First Appellate Court held that the mere fact that there was a deviation from the general procedure of submitting the letters of credit through post does not falsify the evidence of PWs.1 and 2.

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As already pointed out, the petitioner did

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not deny the presentation of Exs.P2 and P3 in his account. He did not specifically deny the evidence of PW.2 about he forwarding Exs.P2 and P3 along with Ex.P1.

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PW.2 sent these documents to deliver to the

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advisory bank through beneficiary only. Had he sent them through any third party, his bona fides could have been doubted. PWs.1 and 2 had no ill-will against the petitioner to falsely implicate him in the case. Not even a remote suggestion was made to them to say that they have any motive to implicate the petitioner in the said case. Therefore, this Court does not find any illegality or infirmity in accepting the evidence of PWs.1 and 2 about Exs.P2 and 3 being presented in the account of

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the petitioner and in turn he presenting them along with

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Ex.P1 before PW.1.

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Regarding Exs.P2 and 3 being fake documents and there presentation by the petitioner with dishonest intention.

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To prove that Exs.P2 and P3 were fake and they were presented with dishonest intention, the prosecution relied upon the evidence of PWs.1, 7 to 9 the officers of Dena Bank, Subhanpura. As already stated on receipt of Exs.P1 to 3, PW.1 verified the signatures on the same with the specimen signatures of the Officers of the Dena Bank which were in their pool and on finding that they did not tally, they were referred to Dena Bank, Regional Office, Vadodara. It was the case of the prosecution that on the enquiry with regard to the genuineness of documents as aforesaid, PW.1 filed complaint Ex.P7.

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On receiving the complaint, PW.10 deputed PW.4 to verify about the existence of R.K. Trading Company. As per the evidence of PWs.7 to 9, Dena Bank, Subhanpura Branch was not at all authorized to

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issue letters of credit and they were not issued by Dena Bank, Subhanpura Branch and no company by name R.K. Trading Company was existing. PW.4 stated that his search revealed that there was no organization by name R.K. Trading Company in the address given in Exs.P.2 & P3.

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In the evidence of the aforesaid witnesses,

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the accused did not claim that an organization by name R.K. Trading Company was in existence and on request of the said company, Dena Bank Subhanpura Branch had issued Exs.P2 and 3.

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Though Exs.P2 and 3 and Exs.P17 to 19 were referred to the hand writing experts - PW.5 for the opinion with regard to hand writing and signatures on Exs.P2 and 3, his opinion was inconclusive. Therefore, they were not helpful to state that Exs.P2 and 3 were in the handwriting of the petitioner or were bearing his signature.

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The evidence of PWs.7 and 8, the officials of Dena Bank, Subhanpura Branch that they had not issued Exs.P2 and 3 was not impeached. It is already held that the presentation of Exs.P2 and 3 in Jammu and Kashmir Bank Ltd., OTC Road Branch in the account of the petitioner was proved and in turn petitioner presenting them before PW.1 in Dena Bank, K.G.Road Branch along with Ex.P1 was also proved.

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Once those facts are held proved, unless the petitioner explains the genesis of those documents, the presentation of those documents in the name of R.K. Trading Company in his account is apparently for his benefit. Who was R.K. Trading Company and how petitioner came in possession of those documents was within the special knowledge of the petitioner. Therefore, Section 106 of the Indian Evidence Act requires him to divulge that, which he failed to do. Then the only inescapable conclusion was that the petitioner had forged them and submitted them to cheat the Banks. Therefore, order of conviction sustains.

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Sri. C.V.Nagesh, learned Senior counsel appearing for Sri. Vishnu Murthy the advocate on record for the petitioner contended that since the fraud in ILC being fake was revealed, the petitioner was saved, otherwise he would have supplied the goods to a fictitious firm and suffered the loss, therefore, no criminality can be imputed to him.

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If that was the case, as a man of ordinary prudence, it was for the petitioner to lodge a complaint against the said R.K. Trading company. But he has not made any such efforts. Absolutely there was no material to show that before presenting Exs.P2 and 3 on his account, he had any business transactions with the said R.K. Trading Company. Therefore, it can be safely concluded that such arguments are unworthy of acceptance.

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For the aforesaid reasons, this Court does not find any perversity, illegality or impropriety in the orders of the Trial Court and the First Appellate Court in

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holding that Exs.P1 to 3 were presented before PW.1 by the petitioner and Exs.P.2 and 3 were fake and he presented them with an dishonest intention of making wrongful gain. This Court does not find any ground to interfere with the order of conviction passed by the Trial Court.

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Reg: Sentence.

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Sri. Vishnu Murthy, learned counsel for the petitioner submits that petitioner is facing proceedings since 2005 and no loss was caused to the Banks. Therefore, he submits that sentence of imprisonment for one year works harsher against him.

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The complaint was filed in the year 2002. After filing the charge sheet and taking cognizance, the case was registered in C.C.No.4415/2005 by the Trial Court. The petitioner has not undergone even one day detention. Since he was on anticipatory bail, he has prolonged the matter for 15 years.

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Having regard to the nature and gravity of

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the offence, this Court does not find any ground to interfere with the order of sentence.

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The petition is dismissed.

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The impugned order of conviction and sentence

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passed against the petitioner by the Courts below are hereby confirmed.

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The petitioner is directed to surrender before the Trial Court on or before 28.12.2020 to serve the sentence, failing which, the Trial Court shall take steps to secure him for the purpose of execution of sentence.

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Registry shall communicate the operative portion

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of the order and transmit the records to the Trial Court, forthwith.

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KSR/KG

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Sd/JUDGE

Deepak K Joshi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Deepak K Joshi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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