Delhi District Court
R/O Wz-83 vs Satish Kumar on 19 September, 2020
EC No. 20579/16 IN THE COURT OF Ms. TANVE KHURANA, METROPOLITAN MAGISTRATE-04, NEW DELHI, PATIALA HOUSE COURTS, DELHI Ct No.20879/16 Phool Singh §/o Shri Devi Ram R/o WZ-83, Village Dasghara, New Dethi versus 1.
Satish Kumar $/o Sh. Devi Ram R/o WZ-83, Village Dasghara, New Delhi
2. Devi Ram S/o Sh. Bhagwana R/o WZ-83, Village Dasghara, New Delhi {1} Serial number of the case:
(2) Name of the complainant:
(3) Name of the accused, parentage & address Phool Singh v. Satish Kumar & Anr.
SORRARSSRATON RT AGORE Complainant aiuesenanacauuuesonsserenns Accused CC No. 20579/16 Phool Singh
1. Satish Kumar S/o Sh. Devi Ram R/o W2Z-83, Village Dasphara, New Delhi CO Na. 20579/16 2, Devi Ram §/o Sh. Bhagwana R/o WZ-83, Village Dasghara, | New Dethi (Since deceased, proceedings abated) (4) Offence complained of or: Sections 468/47 1/420/34 IPC proved (Summoned and Charge framed U/Ss. 465/34 IPC) (5) Plea of the accused : Pleaded not guilty {6} Final Order : Acquittal {7} Date of Institution ; 20.07.2005 {8} Date of reserving : Nil {9} Date of judgment : 10.07.2020 i. The jurisdiction of this Court is invoke pursue the prosecution under Section 200, Criminal Procedure Code against the accused who happen to be his brother and father respectively for offences punishable under Section 468/471/420/34 Indian Penal Code (hereinafter referred at IPC). It is pertinent to mention here that the proceedings against accused no, 2 were abated consequent to his death.
2. Suceinctly, it has been brought forth by the complainant that he used to live at WZ-83, Village Dasghara, New Delhi, in an area of 107 sq. e Phool Singh v. Satish Kumar & Ant. page nal 2 of 18 -
CL No. 20879/16yards (hereinafter mentioned as suit property). He mentioned that his father used to quarre! with him with the motive to grab the share of the complainant. Being aggrieved by the quarrels, the complainant let out the portion under his possession to Accused no. 1 on license basis. When he asked his property back, the accused no 1 refused compelling the complainant to Ale a Suit hearing no. 203/2003 at Tis Hazari for possession. IU was revealed in the proceedings, that accused no. 2 sold the property to accused no. 1 with connivance with accused no. 1. The complainant then filed a Criminal Complaint against accused no. 2 under Section 420/34 IPC at Patiala House Courts. The complainant later came to know that the electricity meter bearing K.W. No. 33400127075 D in the name of the complainant was removed by the power distribution company, NDPL. On enquiry, it was informed that a letter of disconnection was received by them. The Complainant found that his Signatures were forged on that letter and payment had been made through a cheque. A complaint dated 08.11.2002 was BiventoNDPLand ._--s_"
a payment of Rs. 60/- was made by the complainant on 17.03.2003 for reconnection of the meter. A legal notice dated 10.09.2004 was also sent to NDPL.
3. On 03.07.2005, accused no. 1 had a quarrel with the complainant during which both the accused disclosed that they had made the application for removal of the electricity meter in order to deprive the complainant of any proof of possession of the property in Phoo! Singh v. Satish Kumor & Ane CC No. 20579/16 question. It is the grievance of the complainant that the accused persons forged his signatures 00 the application filed for disconnection of electricity meter. A complaint dated 08.06.2005 was filed pefore the P.5. Inder Puri, but in vain. Hence the present complaint was filed in the Court.
4. The application filed under Section 156 (3) of Criminal Procedure Code (hereinatter referred as Cr.P.C.) was dismissed vide order dated 05.12.2005. The pre-summoning evidence was recorded. Vide order dated 23.02.2011, the accused were summoned under Section 465 read with 34 IPC. Pursuant to the bailable warrants, the accused appeared and were admitted to bail. Notice under S.251, Criminal Procedure Code, 1973 (hereinafter referred as "Cr.P.C.") was framed against the accused on 16.01.2014 wherein the accused pleaded not guilty. During the proceedings, accused no. 2 expired on 05.10.2014 and proceedings against him were abated vide order dated 02.06.2015.
5. In the evidence, the complainant/CW-1 stepped into the witness box and was cross examined at length. He deposed that he had been residing in the property since his birth. He mentioned that in 1996, he gave a portion of the property measuring 107 yards to the accused no.1 on rent at the rate of Rs. 2,000/- per month. On his refusal to vacate the premises, the witness had filed a police complaint and a civil suit.
During the proceedings, it was revealed to him that his father, who had
-Phool Singh v. Satish Kumar & Anr.
CC No, 20579/16 sald the property to him, resold the property to the accused no.l, He also came to know that the electricity meter bearing KW no. 33400127075D which was in his name installed at the property in question was removed by NDPL. On 08.11.2003, he had gone to the NDPL office and had enquired when the concerned officer informed him and showed him the application for disconnection of the meter. He informed the officer that he had not written the letter and that someone had forged his signature on the application and had paid the outstanding amount by cheque. He then made a complaint to NDPL on 08.11.2002 and deposited the sum of Rs. 60/- for reconnection. The meter could not be installed due to non-cooperation of the accused no.1. The witness then mentioned that he had sent a legal notice dated 10.09.2004. He also mentioned that his father and the accused had quarreled with him and got the meter removed. He stated that they had also threatened him. He came to know from the NDPL office that the accused had paid the amount illegally from his account through cheque. He expressed that the signatures on the application must have been forged by the accused persons. He mentioned that a complaint dated 08.05.2005 was filed against the accused persons and NDPL. The copy of complaint of illegal removal of the electricity meter dated 08.11.2002 was Ex. CW1/D. the copy of application for reconnection was Mark CWi/X. The copy of legal notice dated 10.09.2004 and the postal receipts were Mark CW1/Y and AD was Mark CW1/Z. The complaint filed at the Police Station dated 08.06.2005 was Ex. CW1/E. _ Ze
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- . Phool Singh v. Satish Kumar & Ane.
CC No. 20579/166. In his cross examination, he stated that he was residing at WZ- 83/7, Village Dasghara which measured approximately 200 sq- yards and the electricity meter of this address was in the name of his wife. He mentioned that he was not residing at the property in question from 1995 to 2000. He volunteered that he was forced to leave the said premises at the instance of the accused. He mentioned that he resided at Subhash Nagar before his marriage and from 1995 to 2000. He did not recall the exact date when his father had quarreled with him. He came to know about the removal of electricity meter in 2000. He had gone to the NDPL Office on 08.11.2002 for the first time for lodging the complaint. He mentioned that he came to know about the removal of the meter when officials of NDPL came to remove the meter. He also mentioned that he came to know about the same fact from the official in the office of NDPL situated at Inder Puri. He stated that he gained knowledge of the application for disconnection of the meter in the year 2000. He saw the application in the year 2002. He had not filed any complaint about the signatures not being his on the application from 2002 till 2004 but had moved the complaint in 2005 at the Police Station. 'The witness was confronted with the certified copy of plaint which was Ex. CW-1/D1. He mentioned that the suit was dismissed and the certified copy of the judgment was Ex. CW-1/D2. The appeal was also dismissed, the certified copy of the order was Ex. CW-1/D3. He mentioned that he could not show ahy rent agreement or receipt to show that he had let out the Phool Singh v. Satish Kumar @ Anr, - PB an eof a, oe ee Page no. Gof 18 AY;
CC No. 20579/16property to the accused no. 1. He did not remember in which capacity he had applied fer the connection in the first place. He mentioned that he paid the electricity charges of the property in question from 1996 till 2002 and he could produce the receipt but was not able to. He stated that he could not tell as to who had paid the amount of Rs. 6100/- towards electricity user charges. He denied the suggestions put to him including that the accused no. 1 paid the charges of electricity consumed en the instructions of his father, accused no. 2.
7. Sh. Mahender Kumar, Section Officer at Tata Power, Delhi Distribution was examined as CW-3. He mentioned that they did not have the original of the entry made in 2002 as it was an 8 years old record. He brought the photocopy which was Mark X. He stated that he had seen the copy of record of the payment/collection for cheques at counter no, 427 of NDPL at Inder Puri on 11.09.2002 by the cashier on duty Sh. Narender Kumar showing the record of payment at serial no. 1 in District Moti Nagar in book No. M-410 for K. No. 33400127075D vide cheque no. 792741 of Nelangadi Bank Ltd. for a sum of Rs. 6,100/-. In his cross examination, he admitted that the electricity meter in the name of Phool Singh which was removed has not been re-installed till date. He also admitted that the record did not show that the payment was made by accuséd no. 1.
Phool Singh v. Satish Kumar &Anr.
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8. Sh. Jagmohan Lal, Bank Officer, Punjab National Bank was examined CW-4. He brought the statement of account bearing No. 0120000102015123 in the name of Satish Kumar {accused no. 1) for the period 05.12.2004 to 08.06.2019 which was Ex. CW-3/A. He mentioned that the account was opened on 04.06.1969. The previous record was destrayed by the bank. He stated that the Nelangadi Bank was merged in Punjab National Bank and after the merger, only the account balance information is given to the Bank which acquires. In his cross examination, he stated that he could not produce the Bank Opening Form, 9, The statement of the accused under $.313 of Criminal Procedure Code, 1973 was recorded wherein the accused stated that it was a false case instituted against him. Opportunity to lead evidence was granted. A statement was recorded on 04.02.2020, wherein Ld. Counsel for the accused no.1 (now the sole accused} on instructions stated that the accused did not wish to lead any evidence. This is the entire evidence adduced in the present complaint.
10. Ld. Counsel for the complainant argued that the property measuring 107 sq. yards was given on license basis to the accused no. 1 and on his refusal to vacate, the litigation started and it was subsequently discovered that the meter was disconnected pursuant to an application filed by someone after payment of the outstanding dues.
- Phool Singh v. Satish Kumar & Anr.. Le 2 ih - moe Pode na Sar te. p ON CC No. 20579/16 He argued that the application containing the forged signatures, Ex. CW1/A has been brought on record and it has been shown through Ex. Ex, CW1/D that the payment was made through cheque, He submitted that the hank witness, CW-4 has shown that the account belonged to accused mo. 1. He further submitted that the complainant gained knowledge about the person who may have forged the document only after the quarrel with his father and thereafter he made a complaint to the police authorities. He mentioned that the accused no. 1 had the motive to get the meter removed from the premises that is to deprive the complainant from having any proof of possession in the pending litigation between the parties. He relied upon the fact that the account. number and the cheque are not disputed. He also brought the attention of the Court to the document on which the alleged forged signatures exist and submitted that the Court may make an opinion as to handwriting under Section 47 of the Indian Evidence Act. He also argued that the accused has not even asked any question in the cross examination pertaining to the cheque therefore it is an admitted fact. He also argued with vehemence that the accused never questioned the cheque from any of the witness and even no suggestions were made to that effect from any witness, He relied upon the judgment titled as Chunni Lal Dwarka Nath v. Hartford Fire Insurance Company, AIR 1958 Punj. 440 to argue that once no question or suggestion is put to CC No, 20579/16 SC 694, undue importance should not be given to minor discrepancies. Therefore, even if the complainant did not remember some dates, they cannot be treated to cause any causality to the case of the complainant. In light ef the above submissions, Ld. Counsel for the complainant sought that the accused he convicted of the offence of forgery.
ii. Per contra, Ld. Counsel for the accused argued that it was the burden on the complainant to show that the document contains forged signatures and that firstly, it has not been signed by the complainant and secondly, that the same has been done by the accused. He submitted that there is no evidence on record to show that the alleged cheque was issued by the accused no. 1. He also pointed out to the conduct of the complainant who filed a complaint in 2005 at the Police Station but made no complaint to NDPL about the forgery. He mentioned that a legal notice was sent to NDPL after two years which the complainant failed to prove formally however, even this document did not reflect the name of accused no. 1. He also casted doubt on the delay caused by the complainant in complaining about the matter especially when he admitted knowledge of the alleged forgery from the day the meter was removed in 2002. He also mentioned that thereafter, he had even visited the office of NDPL in 2003 but chose to complain against the accused only in 2005. He submitted that there was pending litigation between the parties still the complainant made no effort to file any suit. He contended that the complainant was never the owner ofthe Phool Singh v. Satish Kumor & Anr, So 7 es oe "Page no.10 of 18 it No, 20879/16 premises and had no right over it, He pointed out the various contradictions in the testimony ef the complainant. He also argued that there is no forensic evidence on record to show that the signatures are nat of the complainant. He refuted the claim of having motive by relying upon the judgment of the civil litigation between the parties to point out that the complainant never had any right over the property so there is no objective of the accused to have removed the meter to deny the possession of the complainant. He argued that the complainant has not praved the charge beyond reasonable doubt as none of the documents have been formally proved and the testimonies recorded also do not satisfy the burden of proof. He prayed for the acquittal of the accused.
12. | have heard the rival submissions and contentions raised by both the Ld. counsel. | have also perused the entire case record meticulously. I have appreciated the evidence adduced by the complainant and the accused and have weighed the rival contentions raised.
13. The complainant has filed this criminal complaint being agerieved of the fact that an application for disconnection of the electricity meter was filed before the Electricity/Power Distribution Company which contained a signature of "Phool Singh" in vernacular. It is his case that he had not filed the application and the signatures are not his. He suspects that the same may have been done by or on behest Phool Singh v. Satish Kumar & Aor. Page no. 44 of 18 Aes CU No. 20579/16 brother (accused no. 1} or his father (accused no. 2, since s his suspicion on the grounds that:
uarrel between them.
of his deceased}. He base
a) the accused no.2 mentioned the same during aq
b) both the accused had motive to carry out the forgery that is to deprive the complainant of any proof towards possession of the property.
c) the accused no. i had paid the outstanding dues.
14. The first and the most ardent principle of criminal jurisprudence is that in criminal cases, the burden of proof is on the prosecution or in criminal complaint cases on the complainant to establish the guilt beyond reasonable doubts. Needless to say, the benefit of doubt would undoubtedly go in favour of the accused, Hence, in the matter at hand, it was for the complainant to establish that the essential ingredients of forgery as defined under Sections 463 and 464 have been fulfilled beyond reasonable doubts to conclude the guilt of the accused. In order to explore that, it is pertinent to discuss the principle of law involved.
15. Section 463 of the Indian Penal Code provides for the definition of forgery as whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public of to any person, or to support any claim or title, or to cause any person to part with property, or to Phool Singh v. Satish Kumar & Anr. a | 7 | / Page no. 12 of 18 y CC No. 20579/16 enter into any express er implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Further, Section 484 provides for the meaning of making a false document elaborating om the essentials of forgery by preparation of a document as:
A person is said to make a false document or false electronic record- First-Who 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; {a} 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 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 alfixed: [.]
16. A bare perusal of Section 464, IPC clearly reveals that a person is said to make a false document when it is done with dishonest or fraudulent intention, when a part of document is made with the intention of causing it to be believed that such a document was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person whom or by whose authority, the maker knows that it was not Phoo! Singh v. Sotish Kumar & Anr. Page no. 13 of 18 CC No. 2057916 made, signed, sealed, executed or affixed by the said authority.
Therefore, what was essential to be established was that the accused persans dishonestly or with fraudulent intention signed the application which was submitted before the Power Distribution Company for removal/disconnection of the electric meter. In order to discharge the burden, the complainant himself stepped into the witness box and examined two summoned witnesses- one from the Power Distribution Company and other from the Bank. Lets now proceed to appreciate the evidence adduced in this trial.
17. Primarily, the biggest and most fatal lacuna in the case of the complainant is that the document containing the alleged forged Signatures never saw the light of the day. Strangely, the document surfaced in the pre summoning evidence of the official from NDPL whose testimony was recorded on 14.07.2006 where the original was seen and returned. However, thereafter in the complainant's evidence, this document was never relied upon by the complainant nor put to the witness called from NDPL/Dis. Com. It cannot be forgotten that the pre summoning evidence recorded is only to determine whether the accused could be summoned in the matter or not. It was incumbent duty of the complainant to at least put the document to the witness for identification in the post summoning evidence. However, the same was not done. Primarily as mentioned above, the pre summoning evidence has a limited purpose. The complainant Should have made effort to _ Phool Singh v. Satish Kumar & Anr. Page tix, 14 of 128 CC No. 20879/16 either produce the same in his testimeny recorded post framing of notice af accusation or to have put to the witness fram NDPL for him to identity the document. Moreover, the original document was already destroyed by the thme the testimony was recorded. The signatures cannot be compared from a photocopy. Tt was important for the complainant to establish beyond any doubt that the signatures were forged by either of the accused persons or at their behest. In the pr matter, after weighing the entire evidence, it can be concluded that there is no evidence to establish conclusively that it was either of the accused who may have forged the signatures.
18. The complainant had based his line of contentions on the fact that the payment of outstanding dues was made by the accused no. j through a cheque issued from his bank thereby contending that it goes on to show that the forgery may have been committed by the accused persons. This contention is based on mere speculation and conjecture. It cannot be ignored that the complainant himself admits that the accused no. 1 was in possession of the property at the relevant time. It is not uncommon for the user or the occupant to pay the charges of the electricity consumed. Now the question remains that even if it is considered an admitted fact that the payment was made by the accused no.] can it also be presumed on this basis that the signatures were forged. As it has been discussed in the preceding paragraph that the complainant has not made any effort to establish the fact that the Phool Singh v. Satish Kumar & Anr. ee Page no. 15 of 18 .
CO No, 20579/16 signatures were made by any of the accused persons, Their handwriting samples have not been produced, The signatures were never scientifically examined to prove that they were forged. The fact that it was the accused no. 1 only who had filed the document before NDPL was also not established beyond reasonable doubt. He made no effort to seek resort to scientific/forensic evidence to establish the guilt. The handwriting samples were never matched scientifically to establish that it was either accused no. 1 or accused no. 2 who forged the signatures. Merely, by payment of the electricity dues or otherwise, it cannot be presumed for the purpose of establishing the guilt that the accused no. 1 caused the forgery of the signatures, It was onerous on the complainant to have established that the signatures were done by the accused persons.
19, It is settled law that the contents of documents have to be proved on admissible evidence. As has been decided in Rami Dayawala & Sons (P) Ltd. V. Invest Import, (1981) 1 SCC wherein Hon'ble Apex Court held as under:
"Undoubtedly, if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, ie. by the evidence of Phool Singh y. Satish Kumar & Anr. Page no. 16 of 18 AV) aC No. 20579/16 these persons who can vouch safe for the truth of the facts in issue,"
20. However, the complainant could not lead any such evidence of the document. Further, it was the contention of the complainant that he gained the knowledge of the removal of the connection by the accused persons from accused no. 2. However, this fact also remained only a bald assertion and no other person was examined to corroborate the fact. The members of the family would have naturally witnessed the alleged quarrel however, no such evidence was adduced. The conduct of the complainant also remained doubtful. The delay in lodging the complaint remained unexplained. He waited for the accused to allegedly disclose the same to him for him to take any action that too after three years of gaining knowledge of the removal of the connection. Further, his testimony is also full of contradictions. The complainant in his own testimony has expressed that the signatures "must have been" forged by the accused persons. Hence, basing the entire case merely on conjecture.
21. The contention of motive is also not a wholesome contention as though the accused persons may have gained out of this but the question of rights of the parties has been duly settled by the Ld. Civil Judge and the Ld. Appellate Court. Hence, this Court does not deem it necessary to delve into the aspect of motive when otherwise the offence of forgery has not been established.
Phool Singh v. Satish Kumar & Anr. | | "Page no. 17 of 18 CC No. 20579/16 BR There is no direct evidence to establish the forgery was earried out by the accused persons in furtherance of their common intention which was also not established. The court cannot be oblivious to the fact that the criminal jurisprudence unlike civil law requires the guilt to be proved to the hilt and not merely on preponderance of probabilities. Doubts raised go in favour of the accused. There is no such evidence on record to establish the guilt of accused no. 1 beyond reasonable doubts. Both the judgments relied upon by the Ld. Counsel for the accused do not bolster the case of the accused especially in light of the lacunae discussed in this judgment.
Conclusi
23. in light of above discussion, I hold that the complainant has not been able to prove his case beyond reasonable doubt. Accused Satish Kumar is therefore, acquitted of offence charged for. File be consigned to the Record Room after necessary compliance.
ra a POS . oe} Announced in open court (Tanvi Kherana) today Le. on 19.09.2020 MM -04, New Delhi District All 18 pages have been checked Patiala House, New Delhi and signed by me. 19.09.2020 Phool Singh v. Satish Kumar & Anr. a oo Page no. 18 of 18 os