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Rajeev Kumar Sharma vs Om Prakash Korala Page 1 Of 16 on 7 June, 2023

   IN THE COURT OF MS. DEEKSHA SETHI, MM-03,
  SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
Ct. Case No.4992060/2016
CNR No. DLSW02-002900-2015

Sh. Rajeev Kumar Sharma
S/o Sh. R.K.Sharma
R/o RZH-12, Nihal Vihar,
Nangloi, New Delhi-110041.                     .....Complainant.

Versus

Sh. Om Prakash Korala
S/o Sh. Kanhiya Lal
R/o Hno. A-103, Ph-I,
Sector-3, Dwarka, Pappan Kalan,
New Delhi-110075.                              .......Accused

Date of Institution                    : 11.08.2015
Offence Complained of                  : U/s 420 IPC
Date of judgment                       : 07.06.2023
Decision                               : Acquitted


                  JUDGMENT

Brief facts

1. Vide this judgment, I shall dispose of an old case in which is pending in the court since the year 2015.

2. The complainant's version in brief is that he, i.e., Rajeev Kumar Sharma and accused Om Prakash Korala had entered into an agreement on 24.07.2009 for sale and Rajeev Kumar Sharma v/s Om Prakash Korala Page 1 of 16 Ct. Case No. 4992060/2016 purchase of a property. The complainant had made a payment of Rs. 4,50,000/- as earnest money to the accused, but it was revealed to the complainant that the accused had fraudulently received the earnest money from the complainant by representing himself to be the owner of the property, when in fact, he was not the owner of the property. When the complainant demanded back his earnest money from the accused, he issued a cheque bearing no. 209132 amounting to Rs. 1,50,000/- dated 20.07.2014 drawn at State Bank of Bikaner and Jaipur, Dwarka, New Delhi with the assurance that the cheque would be encashed on presentation. However, upon presentation, the cheque bearing no. 209132 got dishonored as the accused had given wrong account number on the cheque. A legal notice in this regard was sent to the accused and the accused failed to make the payment within 15 days of receipt of the notice. It is the case of the complainant that the accused had intentionally issued a cheque of incorrect account number and failed to give the correct account number despite repeated demand. A complaint in this regard was made to the SHO, PS Dwarka North, DCP concerned as well as CP through speed post, but no action was taken on the said complaints. The complainant thereafter approached this court u/s 156(3) CrPC seeking direction to the SHO concerned to register an FIR, however, the said complaint was dismissed Rajeev Kumar Sharma v/s Om Prakash Korala Page 2 of 16 Ct. Case No. 4992060/2016 vide order dated 09.11.20116 passed by my Ld. Predecessor.

Pre-summoning evidence

3. The complainant thereafter continued with his complaint u/s 200 CrPC and examined himself as well as four other witnesses in pre-summoning evidence. The complainant deposed as CW-1 and stated that on 24.07.2009, he had entered into an agreement with the respondent for sale and purchase of property bearing no. A-103, Phase-1, Sec-3, Pappan Kalan, Dwarka, New Delhi for a sum of Rs. 11 lacs. He had made a payment of Rs 4.50 lacs as earnest money to the accused. As per the agreement, the accused had to execute necessary documents in his favor to receive a balance amount. But it was revealed that he was not the owner of the property. Thereafter, the complainant asked the accused to return the amount as he (the accused) was not the owner of the property. However, the accused kept prolonging the matter on one pretext to another. Finally, the accused issued three cheques. He issued one cheque bearing no. 209132 dt. 20.07.2014 drawn on State Bank of Bikaner and Jaipur. He presented the above said cheque in his account, however, it was revealed that the accused had mentioned wrong account number. He made number of calls to him but he did not reply. Therefore, he sent a legal notice through his counsel on 25.08.2014. The legal notice was served upon the accused. He made a complaint to the police but no action was taken by the police. He sent the Rajeev Kumar Sharma v/s Om Prakash Korala Page 3 of 16 Ct. Case No. 4992060/2016 complaint to the Commissioner of Police through post but no action was taken by it. It is submitted that the accused had received the amount from him but issued the cheque with wrong account number and thus, he (the accused) has committed the offence of cheating and criminal breach of trust. Thus, the complainant filed the present complaint before the court. Bayana receipt was exhibited as Ex. CW- 1/1, the cheque was exhibited as Ex. CW-1/2, return memo was exhibited as Ex. CW-1/3, legal notice was exhibited as Ex. CW-1/4, postal receipts were exhibited as Ex. CW-1/5 (colly), tracking report was exhibited as Ex. CW-1/6, complaint dated 30.01.2015 was exhibited as Ex. CW-1/7, postal receipts were exhibited as Ex. CW-1/8 (colly.) and the present complaint was exhibited as Ex. CW-1/9.

4. CW-2 Ct. Chatramal has deposed that a complaint was received on behalf of Sh. Rajiv Kumar Sharma in the DCP office vide General Diary no. 1288 on 09.02.2015 and the same was forwarded to ACP, Dabri on 18.02.2015 vide Diary no. 2925/C/SWD. The copy of the same was exhibited as Ex. CW-2/1.

5. CW-3 Ct. Ravinder Kumar has deposed that a complaint was received on behalf of Sh. Rajiv Kumar Sharma in PS Dwarka North by post on 04.02.2015 which was forwarded to SHO Bindapur on 05.02.2015 vide diary no. LC-118. The copy of the same was exhibited as Ex. CW- 3/1.

6. CW-4 Ms. Sangeeta Kumari, Additional Associate-I, State Bank of Bikaner and Jaipur (now merged with State Bank of India) Ashirwad Chowk, Sector-11, Dwarka, New Delhi had brought the summoned record, i.e., the cheque book issuance register. She submitted that according to entry dated 10.06.2006, the cheque book from serial no. 209121 to 209140 was issued to Om Prakash Karola, holding account no. 61006992288. The photocopy of relevant entry was exhibited as Ex. CW-4/A (OSR).

7. CW-5 Sh. Deepak Kumar Banka, Chief Manager, OBC Rajouri Garden, New Delhi had brought the summoned record, i.e., return memo dated 04.08.2014 and 03.08.2017 and bank statement of account no. 04192191002225 pertaining to Sh. Rajeev Kumar Sharma for the period 01.07.2014 to 31.08.2014. The aforesaid documents were exhibited as Ex. CW-5/A. He had also brought certified copy of the cheque return register and the same was exhibited as Ex. CW-5/B.

8. Thereafter, the complainant closed his pre-summoning evidence and after hearing arguments on summoning and on the basis of the complaint, evidence and documents exhibited in pre-summoning evidence, my Ld. Predecessor had taken cognizance of the offence u/s 420 IPC and accused was summoned.

Pre-charge evidence

9. The complainant thereafter examined himself in pre- charge evidence as CW-1 and adopted his pre-summoning Rajeev Kumar Sharma v/s Om Prakash Korala Page 5 of 16 Ct. Case No. 4992060/2016 evidence in pre-charge evidence. He was thoroughly cross- examined by Ld. Defence counsel.

10. Thereafter, my Ld. Predecessor framed a charge u/s 420 IPC against the accused to which he had pleaded not guilty and had claimed trial.

Post-charge evidence

11. The complainant examined four witnesses in post-charge evidence. CW-1 HC Naveen Kumar had produced the summoned record, i.e., the complaint register. The relevant complaint made by Rajeev Kumar Sharma which was at serial no. 118 was exhibited as Ex. CW3/1. He further stated that the complaint was sent to PS Bindapur for necessary action. This witness was cross-examined by Ld. Defence counsel.

12. CW-2 Archana Meena, Customer Assistant, SBI, Dwarka had brought the summoned record pertaining to cheque No. 209132 issued by Sh. Om Parkash Korala drawn on Bank of Bikaner and Jaipur. Cheque leaf issued on 10.06.2006 contained cheque No. 209121 to 209140 which was issued to Sh. Om Parkash against account No. 61006992288. The record was exhibited as Ex. CW-2/A. This witness was cross-examined by Ld. Defence counsel.

13. CW-3 Deepak Banka, Chief Manager, OBC had brought summoned records pertaining to Cheque Return Memo dated 02.02.2019 outward dated 01.08.2014 deposited in the OBC Bank in respect of cheque No. 209132 submitted by Sh. Rajeev Kumar Sharma in his account. The copy of Rajeev Kumar Sharma v/s Om Prakash Korala Page 6 of 16 Ct. Case No. 4992060/2016 cheque return memo was exhibited as Ex. CW-3/A. He had also brought statements of account pertaining to account No. 04192191002225 in the name of Rajeev Kumar Sharma for the period of 01.01.2014 to 31.12.2014. The copy of statement of account No. 04192191002225 was exhibited as Ex. CW-3/B. This witness was cross- examined by Ld. Defence counsel.

14. CW-4 HC Krishan had brought the summoned records pertaining to Complaint diary register which contains the entry made of complaint dated 31.01.2015 sent by Sh. Rajeev Kumar Sharma, which was received by the CP office and diary No. 9941 which was sent to Joint Commissioner of Police, South Western range. The copy of complaint diary register was exhibited as Ex. CW-4/A. This witness was cross-examined by Ld. Defence counsel.

15. The statement of accused u/s 313 CrPC was recorded on 20.02.2019 wherein all the incriminating evidence appearing on record against the accused was put to him but he denied the same and submitted that he is innocent and falsely implicated. He also stated that he had borrowed a sum of Rs. 1,00,000/- from the complainant in the year 2007 on interest and he had repaid the entire loan amount along with interest to the accused within one or one and a half year and he has documentary proof of the same. Defence evidence

16. The accused Om Prakash Korala examined the following witnesses in his defence:

(i) DW-1 Smt. Sanjana Devi has deposed that the complainant was the friend of her husband and had family relation as both of them were working in the same company. They were in the need of money and, therefore, they borrowed a sum of Rs.1.0 lakh from the complainant in her presence for which the complainant had taken four cheques from her husband. They had returned the entire money to the complainant in parts. The complainant further wanted to purchase some house in the locality. He intended to purchase their house for which he had taken photocopies of documents of their house. The witness had, however, thereafter stated that the originals were taken by the complainant. They want return of their original documents since they had returned the entire sum to the complainant. This witness was thoroughly cross-examined by Ld. Counsel for the complainant.

(ii) DW-2 Sh. Pooran Mal Kanav has deposed that in the month of March, 2007, the complainant and the accused entered into a monetary transaction in his presence. The accused had borrowed a sum of rupees one lakh from the complainant which the complainant had advanced in his presence. The entire amount was given to the accused in cash. The complainant took some cheques from accused in lieu of the advancement of the above-mentioned Rajeev Kumar Sharma v/s Om Prakash Korala Page 8 of 16 Ct. Case No. 4992060/2016 amount. He (DW-2) has also borrowed some money from the complainant after a few days, which he had already returned. The complainant procured some cheques from him (DW-2) as well at the time of advancement of the loan. However, the cheques have not been returned to him despite refund of the loan amount. This witness was thoroughly cross- examined by Ld. Counsel for the complainant.

(iii) DW-3 Sh. Sanjeet Kumar, Sr. Manager had brought the summoned record of statement of account bearing No. 04192191002225 of Rajeev Sharma (the complainant) from the period 01.01.2007 to 31.12.2014 which was exhibited as Ex. DW-3/A (colly). This witness was not cross-examined by Ld. Counsel for the complainant despite having been given an opportunity.

(iv) DW-4 Sh. Manoj Singhal had brought the statement of account of Sh. Rajeev Sharma (the complainant) of account No. 003701517390 for the period 01.01.2007 to 31.2.2010 and which was exhibited as Ex. DW-4/A. This witness was cross-examined by Ld. Counsel for the complainant.

(v) DW-5 Sh. Yogesh Singh had brought judicial file of CC No. 16356/16 titled 'Rajeev Kumar Sharma Vs Om Prakash Korala'. Copy of complaint which is Ex. CW-1/7 in complaint case bearing CC No. 16356/16 (running page 1-5) was exhibited as DW-

5/A (OSR). Cheque bearing No. 550626 of ICICI Bank dated 05.05.2014 which was Ex. CW-1/1 in complaint case bearing CC No. 16356/16 dated 14.01.2015 was exhibited as Ex. DW-5/B (OSR) and memo dated 16.05.2014 which was Ex. CW-1/2 in complaint case bearing CC No. 16356/16 dated 14.01.2015 was exhibited as Ex. DW-5/C (OSR). Payment receipt of OBC was exhibited as Ex. DW- 1/ (Colly) in complaint case bearing CC No. 16356/16 running into three pages were exhibited as DW-5/D (OSR). Payment receipt of ICICI Bank which was Ex. DW-1/B (colly) in complaint case bearing CC No. 16356/16 running into two pages was exhibited as DW-5/E (colly) (OSR). This witness was not cross-examined by Ld. Counsel for the complainant despite having been given an opportunity.

Findings of the Court

17. I have heard Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.

18. It is argued by Ld. Counsel for the complainant that it is clear from the statement of the complainant and other witnesses as well as the documents placed on record that accused Om Prakash Korala had cheated the complainant by representing himself to be the owner of the property in Rajeev Kumar Sharma v/s Om Prakash Korala Page 10 of 16 Ct. Case No. 4992060/2016 question and upon such representation, he had agreed to sell the demised premises and received a sum of Rs. 4,50,000/- as earnest money from the complainant. It is further argued that when it was revealed to the complainant that accused is not the owner of the property and when he demanded back the earnest money paid by him, in discharge of his liability, accused issued a cheque bearing no. 209132 dated 20.07.2014 drawn at State Bank of Bikaner and Jaipur by mentioning incorrect account number over the same and thus, he caused wrongful gain to himself and wrongful loss to the complainant and he has, therefore, committed an offence punishable u/s 420 IPC. He has thus, submitted that the complainant has proved its case beyond reasonable doubt against accused Om Prakash Korala and he be, therefore, held guilty and convicted for the above-said offence.

19. Per contra, Ld. Counsel for the accused has argued that the complainant has failed to prove its case beyond reasonable doubt against the accused and since nothing incriminating has appeared against him, he be, therefore, acquitted for the offence charged.

20. It is a well settled principle of criminal law, that the burden of proof is on the complainant and it has to prove its case beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the complainant by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.

21. Ld. Counsel for the complainant has submitted that the accused had agreed to sell the property bearing no. A-103, Phase-1, Sec-3, Pappan Kalan, Dwarka, New Delhi (hereinafter referred to as 'demised premises'), for which he had taken Rs. 4,50,000/- as earnest money from the complainant and it was later on revealed to him that the accused is not the owner of the property. Ld. Counsel for the complainant has argued that when the complainant demanded his amount back, the accused fraudulently issued a cheque bearing no. 209132 dated 20.07.2014 drawn on State Bank of Bikaner and Jaipur by mentioning incorrect account number over the same and he has thus, caused wrongful gain to himself and wrongful loss to the complainant and he has, therefore, cheated the complainant.

22. I have given my thoughts to the above contention of Ld. Counsel for the complainant. To prove the fact that an agreement to sell the demised premises was executed between the complainant and the accused, the complainant has relied upon a bayana receipt Ex. CW-1/1. Let this court examine the fact whether the complainant has proved the bayana receipt Ex. Ex. CW-1/1. Perusal of the bayana receipt reveals that it shows the signatures of the complainant, the accused and one witness. The complainant has identified his signature and has stated that accused has also signed the same. However, the accused has denied having signed the same in his statement Rajeev Kumar Sharma v/s Om Prakash Korala Page 12 of 16 Ct. Case No. 4992060/2016 recorded u/s 313 CrPC and perusal of cross-examination of CW-1 Sh. Rajeev Sharma (the complainant) reveals that he (the accused) has also given a suggestion to him that the bayana receipt is a false one. Ld. Counsel for the complainant has, however, submitted that wife of the accused DW-1 Smt. Sanjana Devi has stated in her cross- examination that bayana receipt bears the signature of her husband. However, perusal of her further cross- examination reveals that she has stated that no bayana receipt was executed regarding the sale and purchase of the property in question on 24.07.2009 for a sum of Rs. 11,00,000/-. In the opinion of this court, on the basis of the statement of DW-1 Smt. Sanjana Devi in her cross- examination, where she has denied execution of bayana document, it cannot be held that bayana receipt bears the signature of the accused. Moreover, it is a settled law that it was the duty of the complainant to prove the bayana receipt beyond reasonable doubt and he cannot rely upon the cross-examination of DW-1 for the said purpose and more so when DW-1, as stated above, has categorically stated that no bayana receipt was executed at all.

23. Perusal of the bayana receipt further reveals that the complainant has not examined the witness who has signed the same. He has submitted in his examination-in-chief that he did not know the attesting witness as it was from accused's side. He has, however, not pleaded the said fact in his complaint to the police or before this court. The said Rajeev Kumar Sharma v/s Om Prakash Korala Page 13 of 16 Ct. Case No. 4992060/2016 bayana receipt also does not bear the serial no. as the said column is blank. The signatures of accused on bayana receipt have not been proved by the complainant. He could have proved the same by making a request to the court for CFSL examination of signatures of the accused on the bayana receipt or should have called a handwriting expert to prove the same. He has, however, failed to do so for the reasons best known to him. In these circumstances, this court is of the opinion that bayana receipt has not been proved on record.

24. It may also be noted that complainant has failed to place on record any agreement to sell and in the absence of the same or any other document relating to the sale of the property in question, it is difficult to believe the complainant's version on the basis of the bayana receipt (which has not been proved on record) that the accused has taken a bayana of Rs. 4,50,000/- for selling the property in question.

25. In view of the above discussion, the complainant has failed to prove beyond reasonable doubt the execution of the bayana receipt Ex. CW-1/1 and it is a fact that he has also failed to place on record any agreement to sell which was entered into between the complainant and accused for the transfer of the demised premises.

26. Moreover, perusal of record reveals that the complainant has also failed to show any proof of payment of Rs. 4.5 lacs to the accused. There is no receipt of the said amount.

The account statement of the complainant Ex. DW-4/A also does not show that any such amount was debited from his account. As discussed earlier, no agreement to sell has been placed on record by the complainant nor the witness to bayana receipt or payment of amount of Rs. 4.5 lacs has been produced by the complainant. Thus, the complainant has also failed to prove that he had paid Rs. 4.5 lacs to the accused as part consideration to purchase the demised premises.

27. The complainant has next placed on record the dishonored cheque issued by the accused to the complainant. It is alleged by the complainant that the said cheque was issued by him to return Rs. 4.5 lacs which were taken by him on the false pretext of selling the demised premises and, therefore, this shows that the accused has cheated the complainant.

28. This court has given its thoughts to the above contention of Ld. Counsel for the complainant. There is no material placed on record to show that the cheque issued by the accused was issued in discharge of the amount of Rs. 4.5 lacs, which were allegedly taken by him on the pretext of selling the demised premises, of which he was not the owner. The mere fact that a cheque was issued by the accused and when presented, it got dishonored, does not ipso facto prove that it was issued to return the amount allegedly taken by the accused as a part consideration for selling the demised premises. The said cheque might have Rajeev Kumar Sharma v/s Om Prakash Korala Page 15 of 16 Ct. Case No. 4992060/2016 been issued in discharge of some other liability considering the fact that the complainant has himself admitted in his cross-examination that there have been dealings between him and the accused in the past. Thus, the fact of issuance of a cheque by the accused and the same getting dishonored does not help the complainant to prove that the accused has cheated the complainant on the pretext of selling a property which does not belong to him.

29. In view of the above discussion, this court is of the opinion that complainant has failed to prove its case beyond reasonable doubt against the accused Om Prakash Korala and he is, therefore, acquitted of the offence u/s 420 IPC.

30. This judgment contains 16 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.

31. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.

                                                               Digitally
                                                               signed by
ANNOUNCED IN THE OPEN COURT Deeksha                            Deeksha
                                                               Sethi
TODAY, i.e., ON 07.06.2023  Sethi                              Date:
                                                               2023.06.07
                                                               16:05:38
                                                               +0530


                                        Deeksha Sethi
                                  Metropolitan Magistrate-03
                                 South-West District/New Delhi
                                          07.06.2023




   Rajeev Kumar Sharma v/s Om Prakash Korala   Page 16 of 16
   Ct. Case No. 4992060/2016