Delhi District Court
State vs . Hiral Lal Etc. on 28 February, 2020
IN THE COURT OF SH. VIVEK KUMAR AGARWAL, MM04, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
STATE VS. Hiral Lal etc.
FIR NO: 96/11
P. S Neb Sarai
U/s 420/468/34 IPC
Crc No. 2031645/16
JUDGMENT
Sl. No. of the case : 760/2 Date of its institution : 02.03.2012 Name of the complainant : Sh. Hari Niwas R/o H. No. 66, Village Khanpur, New Delhi. Date of Commission of offence : 03.05.2011 Name of the accused : (1) Hiral Lal S/o Late Khajan Singh R/o H. No. 22, khasra no. 420, Digitally Village, Khanpur, New Delhi. signed by (Proceedings qua accused vod VIVEK VIVEK KUMAR 20.05.2014) AGARWAL KUMAR Date: (2) Om Prakash AGARWAL 2020.03.03 S/o Late Hira Lal 16:13:48 R/o R/o H. No. 22, khasra no. 420, +0530 Village, Khanpur, New Delhi. (3) Sunder Singh S/o Late Hira Lal R/o H. No. 22, khasra no. 420, Village, Khanpur, New Delhi. State Vs. Hira Lal etc. Case No.2031645/16 1/18 Offence complained of : 420/468/34 IPC Plea of accused : Not Guilty Case reserved for judgment : 21.01.2020 Final Order : Both accused Om Prakash and Sunder Singh are acquitted u/s 420/468/34 IPC Date of judgment : 29.02.2020 FACTUAL MATRIX OF PROSECUTION CASE
1. The present case is prosecuted by the State against the accused persons for having committed the offences punishable u/s 420 & 468/34 IPC. The story of prosecution is that accused no.1 with the consent of accused no. 2 & 3 entered into an agreement of sell of 300 sq. yards in property bearing no. 22, Khanpur village, Tehsil Mehrauli, New Delhi for total sale consideration of Rs.20 lacs with the complainant. That out of same, Rs.50,000/ was paid by cheque and rest amount was paid in cash. That accused no.1 executed certain documents with the promise that he would execute the sale deed of the property before concerned SubRegistrar within 3 months and also handed over the part possession of the property, however subsequently he entered into agreement to sell with some other persons namely Parvinder Kasana and Amit Kumar and accordingly, he cheated the complainant and also committed forgery of documents. The FIR was lodged in the present case after application being allowed u/s 156 (3) CrPC vod 02.05.2011 passed by Ld. Predecessor of the court.
2. On completion of investigation, chargesheet was filed on 02.03.2012 against accused persons namely Om Prakash and Hira Lal. Thereafter, supplementary charge sheet qua accused Sunder was filed on 29.06.2012. Cognizance of the offences was taken. Copies were supplied to the accused persons in compliance of Section 207 of State Vs. Hira Lal etc. Case No.2031645/16 2/18 Cr. PC.
CHARGE
3. Charge for offences under Sections 420/34 of IPC and 468/34 IPC was framed against accused Hira Lal and Om Prakash @ Prakash on 27.04.2012 in terms of order of even date by Ld predecessor of the Court and charge for offence under Section 420/34 IPC was framed against accused Sunder Singh on 27.08.2012 to which they pleaded not guilty and claimed trial.
4. Meanwhile coaccused namely Hira Lal died and proceedings against the accused were abated vod 20.05.2014.
PROSECUTION EVIDENCE
5. To connect arraigned accused persons with the offences charged, prosecution has examined in all 17 witnesses i.e., Sh. Hari Niwas (PW1), Sh. Om Prakash Chaudhary (PW2), Sh. Krishan Kumar (PW3), Sh. Maan Singh (PW4), Sh. Amit Kumar (PW5), Sh, Parwinder Kasana (PW6), Sh. Shyam Sunder Manchanda (PW7), Sh. Ramgopal Goel (PW8), Sh. Tara Chand (PW9), Sh. Chander Manchanda (PW10), Sh. S.P. Singh (PW11), ASI Ranjeet Singh (PW12), SI Brijesh (PW13), SI Shambhu Nath (PW14), Ct. Ajit Kumar (PW15), Inspector Virender Singh (PW16) and Inspector Sandeep Sharma (PW17). All the witnesses were cross examined on behalf of the accused persons.
6. Again prosecution has also relied upon several documents proved in testimony of these witnesses, which were taken on record as Ex.PW1/A1, Ex.PW1/A2, Ex.PW1/A3, Ex.PW1/A4, Ex.PW1/A5, Ex.PW1/A6, Ex.PW1/A7, Ex.PW1/A8, Ex.PW1/A9, Ex.PW1/B1, Ex.PW1/C, Ex.PW1/D1, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW6/A, Ex.PW11/A1, Ex.PW11/A2, Ex.PW11/A3, Ex.PW13/A, Ex.PW13/B, Ex.PW15/A, Ex.PW15/B, Ex.PW15/C, Ex.PW15/D, Ex.PW15/E, Ex.PW15/F, Ex.PW15/G, Ex.PW15/H, Ex.PW15/J, Ex.PW15/J1, Ex.PW15/K & Ex.PW17/A. State Vs. Hira Lal etc. Case No.2031645/16 3/18 STATEMENT OF ACCUSED
7. Thereafter accused Om Prakash and Sunder were examined under Section 313 Cr. P.C on 26.03.2019. All incriminating material in evidence was put to the accused persons. Accused denied the allegations to be incorrect and stated their father along with his brother had sold part portion of an undivided property, however said portion was not the part of the property in question. They further stated that witnesses have falsely deposed against them being interested witnesses and in connivance with the brother of the complainant namely Om Prakash Chaudhary who wanted to grab their property.
DEFENCE EVIDENCE
8. Accused persons chose not to lead any evidence in their defence. ARGUMENTS
9. I have heard the arguments of Ld. APP for the State, Ld. Counsel for the complainant; Ld. Counsel for accused persons and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. Written submissions filed on behalf of complainant have been also perused minutely.
10. Ld. APP for the State assisted by Ld. counsel for the complainant firstly has submitted the facts of the present case in detail. It is argued that on 23.03.2007, the accused executed the various documents in presence of the witnesses, relating to transfer of the property in favour of complainant and receipt of sale consideration, placed on record as Ex.PW1/A1 to Ex.PW1/A7, however they did not had the intention to honor the agreement entered between the parties since the very inception. That acknowledging their consent to the said transaction, sons of accused Hira Lal namely Sunder and Om Prakash, coaccused in the present case had also signed these documents and they were also witnessed by PW3 Krishan and PW4 Maan Singh, who supported the case of the prosecution in the court. That on 07.04.07 accused State Vs. Hira Lal etc. Case No.2031645/16 4/18 Sunder Singh had given another NOC Ex.PW1/A8 to the complainant regarding his consent in selling of the property and confirming receipt of his share of money. Again that on 27.08.07, the accused Hira Lal has given Receipt and possession letter Ex.PW1/A9 stating there in that he has already given possession of one room to the complainant and had undertaken to give possession of remaining property in 3 months after marriage of his daughter. Thereafter the accused avoided the handing over the possession of remaining property to the complainant on one pretext or another and finally a Panchayat happened on 01.12.2009 at the house of accused persons, in presence of 1015 villagers, there a compromise i.e. Panchayatnama Ex.PW1/B1 was entered between the parties and sale consideration was increased to Rs. 35 Lacs from 20 Lacs and the accused handed over the possession of one more room and the photographs of the house were taken while handing over the possession. That said photographs are Ex.PW1/ D1 & D2. It is further submitted that said panchayatnama Ex.PW1/B1 was written by accused Sunder Singh and in this regard reliance is placed upon FSL report dated 09.10.2012 filed along with supplementary charge sheet. That PW4 Maan Singh has proved the panchyat happened on 01.12.2009 and identified his signature on panchayatnama at point Q5.
11. It is further contended that the accused persons even retracted from the said Panchayatnama Ex.PW1/B1 and did not handover the complete possession of the property. Therefore the complainant had filed a suit for specific performance against the accused persons. That in the said suit vide order dated 03.06.2010 the Hon'ble High Court of Delhi had directed the accused persons to maintain status quo in respect of possession and title of the suit property and further directed the Plaintiff the complainant herein to deposit a sum of Rs 15 lacs, i.e. the balance sales consideration with the Registrar General of the Hon'ble High Court of Delhi. That the plaintiff/complainant herein had duly complied with the said direction. That rather than to hand over the possession to the complainant and executing sale deed in favour of State Vs. Hira Lal etc. Case No.2031645/16 5/18 the complainant, the accused Heera Lal along with his four brothers entered into agreements regarding sale of entire property no. 22, khasra no. 420 village khanpur measuring 1736 sq. Yds. which included the property in question (sold to complainant on 23.03.07) to one Parvinder Kasana and Amit Kr and took substantial amount from them. That the accused Hira Lal along with his four brothers signed the "VIKRAY IKRARNAMA" dt 22.01.09 in favour of said Parvinder Kasana and Amit Kr. That the accused Omprakesh @ Prakash and accused Sunder Singh gave their written consent (NOC) Ex.PW 6/A for the sale of property in question despite knowing that 300 Sq. Yds out of Kh. No. 420 village khanpur had already been sold to Complainant in March 2007 with their consent.
12. It is further argued that it is proved by PW 5 and PW 6 from the Revenue record MarkR of Khasra No. 420, seized vide seizure memo EX PW5/A that the entire area under the ownership of all the five brothers was measuring only 1400 Sq Yards not 1736 Sq. Yards as stated by them. That the accused have fraudulently and dishonestly signed the document "VIKRAY IKRARNAMA" dt 22.01.09 Ex.PW1/X1 as owner of the entire 1736 Sq. Yards with intent to cheat which brings them under forgery. Accordingly, it has been contended that both the present accused persons are liable to be convicted for offence of cheating as well as for offence of forgery.
13. On the other hand, Ld. Defence Counsel has made several contentions. Firstly, it is argued that the allegations in question were mainly against the accused Hira Lal, however he has already expired and proceedings against him have abated. That there was no contract of sale between the complainant and present accused persons and therefore, there is no criminal liability of the present accused persons. It is further argued that even otherwise there is no evidence regarding payment of money allegedly made by cheque by the complainant. It is further contended that even if the document in question i.e. Vikray Ikrarnama is taken as genuine, it was not a sale deed State Vs. Hira Lal etc. Case No.2031645/16 6/18 and therefore, no transfer of property had taken place in favour of the complainant and therefore, even if it was subsequently sold to some other persons by the accused, no offence of cheating or forgery was committed. Regarding the Panchayat in question and the panchayatnama, it is submitted that there is no documentary evidence that if any proposal was there to enhance the sale consideration.
14. It is further submitted that there is no allegation or evidence of forgery against the present accused persons, as PW1 has clearly admitted in his crossexamination that there was no transaction with present accused persons namely Sunder and Om Prakash. Again, PW2 has also admitted that present accused persons were not witnessed to the document in question. Accordingly, it is prayed the accused persons are entitled to be acquitted.
RELEVANT LAW
15. The word 'cheating' has been defined under Section 415, which provides as follows: Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. A dishonest concealment of facts is a deception within the meaning of this section."
The aggravated form of cheating has been dealt with under Section 420 IPC, which specifically provides for the offence of cheating involving the property. The provision reads as follows:
420. Cheating and dishonestly inducing delivery of property whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a State Vs. Hira Lal etc. Case No.2031645/16 7/18 valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
16. The perusal of section 420 IPC reflects the essential ingredients of the offence of "cheating" as under :
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
17. Section 420 requires not only cheating but also delivery of property or the making, alteration or destruction of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Hence, before an offence under Section 420 IPC is made out, it must fulfill the ingredients of Section 415 IPC. Meaning thereby, to constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived.
The Hon'ble Supreme Court of India in Ram Jas vs. State of U.P. (1970) (2) SCC 740 held that : The ingredients required to constitute the offence of cheating are State Vs. Hira Lal etc. Case No.2031645/16 8/18
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. (Emphasis added).
18. Now in the given facts, I also find it worth to discuss the scope of law with respect to civil wrongs and cheating. It is to be observed that there has been a growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. In this regard, it has been observed by the Hon'ble Apex Court time and again that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. Reliance is placed upon the authority of G. Sagar Suri v. State of U.P. [2000 (2) SCC 636.
19. In this regard, the Hon'ble Apex Court in case of Hridaya Rangan Pd. Verma And Ors vs State Of Bihar And Anr on 31 March, 2000) observed as follows:
'In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. mere State Vs. Hira Lal etc. Case No.2031645/16 9/18 breach of contract cannot given rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed'.
20. Again, in case of Indian Oil Corporation vs. NEPC India Ltd. [2006 (6) SCC 736], the Hon'ble Apex Court observed that "... it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged"
FORGERY: Meaning and Scope
21. Now, let us advert to the scope of the law with reference to 'forgery'. The term has been defined in Section 463 IPC and the offence ranges upto Section 471 IPC. The section 463 reads as follows:
463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
Further, Section 464 defining "making a false document" is extracted below :
464. Making a false document.A person is said to make a false document or false State Vs. Hira Lal etc. Case No.2031645/16 10/18 electronic record FirstlyWho dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly, Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 A man's signature of his own name may amount to forgery.
Explanation 2 The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
The punishment for the offence of forgery has been provided under Section 465. Goind further Section 466 to 471 IPC deal with aggravated form of forgery. Relevant provision of Section 468 IPC read as follows:
468. Forgery for purpose of cheating - whoever commits forgery intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to 7 years and also shall be liable to fine.
State Vs. Hira Lal etc. Case No.2031645/16 11/18
22. Now, the scope of the the provisions pertaining to the forgery has been dealt with in detail by the Apex Court in landmark case of Md. Ibrahim & Ors vs State Of Bihar & Anr on 4 September, 2009 wherein Raveendran, J. held as follows:
The condition precedent for forgery is making a false document (or false electronic record or part thereof)...Now, an analysis of section 464 of Penal Code shows that it divides false documents into three categories:
a. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
b. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
c. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses.
APPRECIATION OF EVIDENCE
23. The case of the prosecution is based on oral as well as documentary evidence. Let this evidence be appreciated in wake of requirements of charge u/Sec. 420 IPC as well as the requirement of charge u/s 468 IPC to be proved and I am of the view that State Vs. Hira Lal etc. Case No.2031645/16 12/18 there are two points for determination in this regard, as discussed follows:
Point no. 1 Whether the accused persons deceived the complainant with dishonest intention and whether there was any delivery of property by the complainant to the accused persons?
24. The entire case of prosecution, as mentioned in the chargesheet and as deposed in testimony of PW1 commences with the very fact that on 23.03.2007, accused Hira Lal had told PW1 that he wanted to sell his house no. 22 A, Khasra no.420 measuring 300 sq. yards, Khanpur (hereinafter called as 'property in question') and that agreement was there for sale consideration of Rs.20 lacs and amount of Rs.19,50,000/ was paid in cash and cheque of Rs.50,000/ was given. Again that Hira Lal executed certain documents including GPA, Agreement to Sell, Affidavit, Possession Letter, Will, Receipt and NOC letter which were signed by both the sons of accused Hira Lal, who are coaccused in the present case, as witnesses. Version of PW1 to this effect has been certainly corroborated by PW2, PW3 & PW4. PW3 & PW4 namely Krishan Kumar and Maan Singh deposed that they had signed these documents as attesting witnesses. The said documents were proved on record as Ex.PW1/A1 to Ex.PW1/A9. It is the further case of prosecution that subsequently the accused Hira Lal did not execute the sale deed of property in question in favour of the complainant and rather executed another agreement of the same property with Parvinder Kasana, who has been examined as PW6. PW6 had further deposed that on 22.01.2009, he alongwith his partner Amit Mittal i.e. PW5 purchased the property in question measuring 1736 sq. yards from accused Hira Lal and his four brothers.
25. Accordingly, in brief the entire case of the prosecution is that though the accused Hira Lal had induced and had subsequently agreed to sell the property in question to the complainant and had also executed certain documents after receiving the money, however subsequently he sold the said property to some other person.
State Vs. Hira Lal etc. Case No.2031645/16 13/18
26. Now, even if the said case of prosecution is taken as being duly proved, I am of the considered and conformed view that said conduct of accused Hira Lal amounts to 'breach of contract' and cannot be said to be 'cheating'. As observed above, it has been held by Hon'ble Apex Court in clear terms in the authority of Hridaya Rangan Pd. Verma (supra) that mere breach of contract cannot given rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
27. In the present case, admittedly accused Hira Lal had executed certain documents in favour of the complainant and had also transferred the part possession of the property in question. It is nowhere the case of the prosecution that accused Hira Lal had no right to sell the said property and rather it has been the categorical version of prosecution that accused Hira Lal was the owner of the said property. In these circumstances, there is no reason to presume that accused Hira Lal had any malafide or dishonest intention at the time of agreement to sell the property in question.
28. Moreover, accused Hira Lal has already expired and none of the witnesses examined on behalf of prosecution had deposed that these were the present accused persons namely Om Prakash and Sunder, who had induced the complainant Hari Niwas to purchase the property of their father namely Hira Lal. By merely giving the consent by the present accused persons, as alleged on behalf of prosecution and as deposed in testimony of PW1 & PW2, the present accused persons cannot substitute the inducement made by their father. Again as mentioned above, it was nowhere the State Vs. Hira Lal etc. Case No.2031645/16 14/18 case of the prosecution that accused Hira Lal had not right to sell the property to the complainant and the present accused persons had represented Hira Lal as owner of the said property. Again as clearly deposed by PW1, money was given to accused Hira Lal and not to the present accused persons and therefore, there was no delivery of property in favour of present accused persons. Consequently, none of the ingredients of offence u/s 420 IPC is established against the present accused persons.
29. It is to further observe that charge in the present case was framed u/s 420 IPC against all three accused persons read with Section 34 IPC, alleging that they had dishonestly deceived the complainant in furtherance of common intention of all the accused persons. However, as discussed above, no allegation of inducement has been made against the present accused persons and again no delivery of property was made to the present accused persons. Therefore, there is nothing on record to establish the 'common intention' among all the accused persons.
30. Going one step further, it is to observe that if it is taken that case of prosecution is regarding conspiracy among all the accused persons, the prosecution has also failed to lead any evidence in this regard.
31. Regarding the evidence to establish the conspiracy, I find it relevant to refer to the legal position in this regard. The law of conspiracy as pointed out by Subba Rao, J in Major E.G. Barsay Vs. State of Bombay (AIR 1961 SC 1762):
"the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts".
The passage in Russell on Crimes referred to by Jagannatha Shetty, J in Kehar Singh's case [1988 (3) SCC at page 731] is quite apposite:
State Vs. Hira Lal etc. Case No.2031645/16 15/18 "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough".
32. Now prosecution has not led any evidence to establish that there was any agreement among all the accused persons to cheat the complainant and therefore, even it cannot be taken that offence of conspiracy regarding the cheating the complainant has been committed.
In view of aforesaid discussion, Point No.1 is decided in negative against the prosecution and in favour of the present accused persons.
Point No.2 Whether the accused Om Prakash had forged the Vikray Ikrarnama dated 22.01.2009?
33. As discussed above, to establish the offence of forgery, firstly it has to be established that a false document was prepared as defined under Section 464 IPC. Now in the given facts, allegation of prosecution is that the Vikray Ikranama dated 22.01.2009 was fraudulently and dishonestly signed as owner of entire share of property by accused Hira Lal and Om Prakash @ Prakash. As discussed above, a person is said to have made a `false document', if he made or executed a document claiming to be someone else or authorised by someone else; or he altered or tampered a document; or he obtained a document by practicing deception, or from a person not in control of his senses.
34. Now certainly the case of prosecution is not covered within last two conditions and can be said to be falling within the first condition only. To satisfy the said State Vs. Hira Lal etc. Case No.2031645/16 16/18 condition, it was required to be proved that accused Hira Lal had represented himself to be someone else but Hira Lal or that he had represented himself as owner of property, however not being so. Now allegation against the accused Hira Lal and Om Prakash are that they had represented themselves as owner of property in question to subsequent purchasers namely Parvinder and Amit, however they had already sold the said property to the complainant. In this regard, it is to be appreciated that firstly the sale of property is only completed by way of execution of sale deed, as provided u/s 54 of TPA and no other document can substitute the sale deed itself. Accordingly, even if the documents Ex.PW1/A1 to Ex.PW1/A7 regarding the property in question were executed previously in favour of the complainant, the sale of the property was not completed and Hira Lal was still the owner of the said property. Accordingly, even if subsequently he represented himself as owner of said property to Parvinder Kasana and Amit Kumar, it cannot amount to false representation and consequently, it cannot be said that the document in question i.e. Vikray Ikrarnama was a false document as defined under Section 464 IPC.
35. It is further important to observe that even otherwise, the present complainant had no locus to initiate prosecution regarding alleged forgery with Parvinder Kasana and Amit Kumar. In this regard, again reliance is placed upon authority of Mohd. Ibrahim (supra), wherein detailed observation were made in this regard.
36. Moreover, perusal of document in question i.e. Ex.PW1/X1 provides that it was accused Hira Lal, who was one of the party in the said document and on the other hand, there were Parvinder Kasana (PW6) and Amit Kumar (PW5) and accused Om Prakash @ Prakash was not the executant of said document. Again this document was not even signed by Om Prakash as a witness. Accordingly, even otherwise there is no evidence on record that accused Om Prakash had forged the said document.
State Vs. Hira Lal etc. Case No.2031645/16 17/18 Accordingly, point no.2 is also decided in favour of the accused Om Prakash and against the prosecution.
37. In view of findings of both the points, it is to be concluded that prosecution has completely failed to prove any case against either of the accused persons and consequently accused Om Prakash is hereby acquitted for offence u/s 420 & 468 IPC and again accused Sunder Singh is hereby acquitted for offence u/s 420 IPC.
Announced in the open court (Vivek Kumar Agarwal) on 28.02.2020 MM04, South, Saket, New Delhi
It is certified that this judgment contains 18 pages and each page bears my signatures.
(Vivek Kumar Agarwal)
MM04, South, Saket, New Delhi
28.02.2020
State Vs. Hira Lal etc. Case No.2031645/16 18/18