Delhi District Court
State vs Shivender Gaur & Ors on 18 July, 2023
IN THE COURT OF Ms. VIJAYSHREE RATHORE,
METROPOLITAN MAGISTRATE, SOUTH DISTRICT,
SAKET COURTS, DELHI
STATE VS Shivender Gaur & Ors
FIR No. : 792/2006
PS : Hauz Khas
U/s : 419/420/120B IPC
JUDGMENT
A. Sl. No. of the Case 2032850/2016
B. Date of Commission of offence May 2006
C. Date of FIR 29.12.2006
D. Date of charge-sheet 15.03.2007
E. Name of the complainant Ronnit Biswas
F. Name of the accused persons, their 1) Shivender Kumar Gaur S/o Ishwar Dutt
parentage and residence Gaur, R/o 619/23, Arya Samaj Mandir,
Chhatarpur, Delhi.
2) Anees Ahmed S/o Rafiq Ahmed, R/o
Ahuja Farms 128, DLF Chhatarpur, Delhi.
3) Shyam Saini S/o Nanak Chand Saini, R/o
A-89/11, Chhatarpur Encalve, Phase-2,
Delhi.
4) Rakesh Kumar Saini S/o Jag Ram Saini,
R/o Vill. Chamora, Teh. Sambhal, Distt.
Moradabad, U.P.
5) Harbir Singh S/o Banarsi Lal R/o Vill. Ali
Pur, Teh. Sardhana, Distt. Meerut, U.P.
G. Offence complained of or proved 419/420/120B IPC
H. Date of framing of charges 12.07.2007
I. Date of commencement of evidence 22.09.2007
J. Plea of the accused Pleaded not guilty
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U/s 419/420/120B IPC Page no.1 of 54
K. Date on which judgment is reserved 30.05.2023
L. Final Order Convicted
M. Date of Judgment 18.07.2023
Brief facts of the present case
1. The case of the prosecution arises out of complaint dated 29.12.2016 of complainant Ronnit Biswas that sometime in March 2006, he was approached by two property dealers namely Surender Babbar s/o Satpal Singh Babbar and Pradeep Suri s/o Ravinder Suri who were known to him for the last three years and they informed him that a property No. N-5, Panchsheel Park, New Delhi was in the absolute occupation of a person named Vishal Sharma s/o Vijay Sharma and Vishal Sharma was desirous of selling the said property. As he was interested to purchase the same, they introduced him to Vishal Sharma. Vishal Sharma told that he and his father were in occupation and possession of the said property for the last about 19 years and Vishal Sharma told him that one Yashpal Luthra, who was the owner had died in 1987 and during his lifetime Yash Pal Luthra had transferred the property to him by means of a will. The deal was settled for Rs. 5 Crores and out of which he was induced to pay Rs. 85/- lacs at the time of handing over of the possession of the said property by Vishal Sharma and his associates on 01/05/2006 and Vishal Sharma also executed some documents, State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.2 of 54 which were duly witnessed by his associates. Prior to 01/05/2006 it was agreed that he would have to pay a sum of Rs. 1.5 Crores at the time of handing over the possession of the house but he could arrange only 85/- lacs and Vishal Sharma gave him already prepared receipt for Rs. 1.5 Crores. Vishal Sharma further assured him that he will hand over all the original papers of this property along with the will in his favour and will also execute a sale deed when the balance payment will be given to him and this was to be done within a week from the handing over the possession of the property. He kept on waiting for a week and tried to contact Vishal Sharma and associates for the completion of the formalities of the sale transaction by way of executing the sale deed and handing over the original papers of the property and the will, but Vishal Sharma and his associates were not traceable at the addresses given by them and the mobile number was also off. On the basis of complaint FIR was registered in the case.
2. During investigation statement of witnesses were recorded and relevant documents were obtained. Accused persons were arrested in the case. The original record of stamp papers were obtained from the office of Sub Divisional Magistrate, HQ, South District, M.B. Road, Delhi. The specimen handwriting of accused Shivender Kumar Gaur, Anees Ahmed, Shyam Saini and Rakesh Saini was obtained along with specimen thumb impression of ac- cused Harbir Singh with the permission of Court and were sent to State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.3 of 54 FSL. During investigation vehicle no DL3SAW7862, DL6C6028 and UP21T7387 were seized from accused Shivender Kumar Gaur, Anees Ahmed and Rakesh Kumar Saini and property papers were seized from Shyam Saini as the accused persons disclosed that same were purchased from the proceeds of cheating. After completing in- vestigation, chargesheet was filed in the case.
Framing of charge
3. After compliance of Section 207 Cr.P.C., vide order dated 12.07.2007, charge was framed against all accused persons i.e. Shivender Kumar Gaur, Anees Ahmed, Shyam Saini, Rakesh Kumar Saini and Harbir Singh u/s 419 r/w 120B, sec 420 r/w 120B and sec 120B IPC to which accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
4. In support of its case, the prosecution had examined 15 witness PW1 is Arun Kumar who is the managing director of MIR Realtors; PW2 is Ronnit Biswas; PW3 is Surender Singh Babbar; PW4 is Neeraj Bhalla; PW5 is Geeta Luthra; PW6 is HC Bodu Ram; PW7 is Pawan Kumar; PW8 is Sudha Devi; PW9 is Pradeep Kumar; PW10 is Joginder Ahlawat; PW11 is Ramesh Choudhary; PW12 is Sunil Kumar; PW12A Ct. Subhash; PW13 is Insp. Rajesh Dahiya and PW14 is Dr. Sarita.
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5. PW1 Arun Kumar had deposed that he is the Managing Director of MIR Realtors Pvt ltd and they used to deal in property matters. On 29.12.06, he had issued a certificate EXPW1/A for purchasing properties for Real Estate development in Delhi to Neeraj Bhalla. He had further deposed that they had given the amount in five installments and the amount is still with Neeraj Bhalla. He had further deposed that he had also issued a certificate dt 29.12.06 EXPW1/B. He had further deposed that the amount of Rs 30 lacs was separate from the amount of Rs 52 lacs. Total amount of rupees eighty two lacs is still with Neeraj Bhalla. He had further deposed that rupees 30 lacs was paid by him personally to Neeraj Bhalla for the same abovesaid purpose. He had further deposed that the amount Rs 52 lacs was paid by him company i.e. MIR Realtors pvt ltd wherein he is working as Managing director. He had further deposed that Neeraj Bhalla did not pay this amount of rupees eighty two lacs to him or to his company. He had further deposed that he had also issued a letter to Rajesh Dahia IO of this case and the same is EXPW1/C.
6. PW2 Ronnit Biswas had deposed that in the month of March, 2006 he was approached by two property dealers namely Surender Babbar and Pradip Suri who were known to him for the last three years and they informed him that a property N-5, Panchsheel Park, New Delhi was in the absolute possession of a certain Vishal Sharma and Vishal Sharma was desirous of selling State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.5 of 54 property as he was interested in purchasing this property. He had further deposed that a meeting was set up by the two property dealers Surender Babbar and Pradip Suri. He had further deposed that on meeting, Vishal Sharma, they were told that he and his father were in absolute possession of this property for the last 19 years and the original owner Yashpal Luthra had died in the year 1987 and had transferred the property to Vishal Sharma through a Will. He had further deposed that the deal was settled for Rs. 5 crores out of which they were induced to pay Rs. 85 lacs as part payment at the time of handing over of possession. He had further deposed that the date was set for the 1st of May, 2006 at the time at which Vishal Sharma also promised to give them a few documents as well. He had further deposed that prior to the 1st of May, 2006 it was decided that he would need to pay Rs. 1.5 crores at the time of handing over of possession. He had further deposed that on the 1st of May 2006, they reached the property and Surender Babber and Pradeep Suri also came in at nearly the same time. He had further deposed that since he could manage only Rs. 85 lacs, they told Vishal Sharma this and he consulted his associates and agreed to the deal. He had further deposed that he gave them already prepared receipt of Rs. 1.5 crores and also a few documents. He had further deposed that he further promised them that all the original papers including a sale deed and a Will would be given to them at the time of complete payment, which was to be done within a week from 1st of May, 2006. He had further deposed that he had borrowed the State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.6 of 54 money from Neeraj Bhalla, who is also his local guardian. He had further deposed that he had made this payment of Rs. 85 lacs as part payment towards the agreed sum of Rs. 5 crores and not as one time payment for vacant possession. The witness pointed out one person standing in the dock as person represented himself as Vishal Sharma who was accused Shivender Gaur. He had further deposed that he lodged complaint with the police which is in two pages Ex. PW2/A. The witness is shown the documents which are in the envelope of FSL for finding out the said receipt. The witness has pointed out the original receipt of Rs. 1.5 crore and the same is Ex. PW2/B. He had further deposed that this receipt was already prepared and handed over to him in the presence of Neeraj Bhalla, Surender Babbar and Pradeep Suri at N-5, Panchsheel Park. On putting the leading question as to the role of other accused persons, the witness answered that the persons named in my complaint beside accused Shivender Gaur were his associates and were present at the time of handing over the cash and he correctly identified them before the court.
7. PW3 Surender Singh Babbar had deposed that in the year 2006 he was doing his business of Gold Smith and property dealing. He had further deposed that on Tuesday he visited Hanuman Mandir Cannaught place for darshan some persons who were unknown to him were chatting regarding property (bearing No. 5 at "Panchsheel Park) that the owners have died and had executed State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.7 of 54 the documents in favour of watchman of the said premise and one person namely Vishal is son of the owner of the said property. He had further deposed that in between his companion Pradeep Suri also came there. He had further deposed that they left the spot thereafter next day Pradeep Suri visited N-5 Panchsheel and met with watchman who took them to Vishal Sharma and Rajesh inside the premise. He had further deposed that Vishal Sharma informed them that earlier his father was watchman and now he is doing this work as father has gone to village and now the owner of premise in question they inquired about the documents regarding ownership Vishal informed them that he was power attoreny holder of the said property but he cannot show it as same lying mortgage at his native village but he is in possession of site plan of the premise. He had further deposed that when they inquired about of the price he quoted Rs. 5 crores. He and Pradeep Suri told the facts to Neeraj Bhalla and after about 2-3 days he alongwith Neeraj Bhalla, Pradeep Suri visited the said premise and there they met Vishal Sharma and Rajesh were again inquired and they replied same which they had replied to him. He had further deposed that when they were sitting inside the premise two more persons came there introduced as namely Rakesh and Shyam. He had further deposed that thereafter they all came back after detailed inquiry and they decided to have one more meeting with those persons. He had further deposed that after about 2-3 days they all three again visited the premise and met with Vishal Sharma, Rajesh and watchman remained at the gate. He State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.8 of 54 had further deposed that Rajesh and Vishal asked them to give 1.25 crore as advance. He had further deposed that Neeraj Bhalla then replied to them that it was higher amount. He had further deposed that it was replied that the documents are lying hypothicated after more deliberation Rs. One crore was quoted to which Neeraj Bhalla again objected being high amount. He had further deposed that it was decided that the quantam of advanced amount will be decided at the spot. At the premise himself, Pradeep Suri, Neeraj Bhalla and Ronit gathered. Neeraj Bhalla informed that he has brought Rs. 85 lacs and he handed over this amount to Vishal Sharma and Rajesh and the documents were got signed from five persons namely Vishal Sharma, Rajesh, Rakesh, Shyam and Mahavir (Watchman). He had further deposed that Vishal Sharma thereafter stated to them that the documents will be executed after he received the documents which he had hypothicated back after about 5-6 days. The witness had pointed out towards Rakesh i.e Shyam. The witness pointed towards person Harbeer stating that he is Mahavir who was watchman. He also pointed towards Shivender Gaur as the person who represented himself as Vishal Sharma. He also deposed that the another person is Rajesh who is accused Anish Ahmad and also stated that fifth person is Shyam The witness is shown the case file and he also pointed out the receipt of Rs. 1 Crore 50 lacs Ex. PW.2/8 and the surrender deed in three pages with signature at point which is Ex. PW 3/A, declaration of consiquention of settlement amount in two pages with his signature at point A which is Ex. PW. 3/B possession State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.9 of 54 letter in three pages with his signature at point A is Ex. PW 3/C, receipt cum clearance certificate which was signed in his presence is Ex. P 3/D. The accused persons were arrested in his presence their arrest memo is Ex. as Ex. PW 3/E1-E5 and the personal search memo is Ex. Pw3/F1- F5. On putting leading question to witness by ld APP the witness stated that he had told the police in statement u/s 161 that one of the accused Vishal Sharma has disclosed that his father has expired and he subsequently executed those documents in favour of Vishal Sharma.
8. PW4 Neeraj Bhalla had deposed that in the month of March, 2006, two property dealers namely Surender Babbar and Pradeep Suri who were known to him and approached him and stated about the property No. N-5, Panchsheel Park. He had further deposed that he was told that the owner of the property was Yashpal Luthra in the year 1987 and he had executed the documents of the property in favour of father of Vishal Sharma who subsequently executed those documents in favour of Vishal Sharma. He had further deposed that he alongwith Surender Babbar, Pradeep Suri and Ronit Biswas went to N-5, Panchsheel Park and there they met Vishal Sharma, Rajesh Kumar, Rakesh Kumar, Shyam Soni and one chowkidar whose name was Mahavir. Vishal Sharma stated to them that the said property can be sold to them, however, the documents in his favour are lying hypothicated. He had further deposed that the deal was agreed for Rs.5 crore and Rs. 1.5 crore was given as an State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.10 of 54 advance and Vishal Sharma was to redeem the documents. He had further deposed that he arranged Rs.85 lacs from MIR REALTORS Pvt. Ltd. He had further deposed that on 1.5.2006 at agreed time and place i.e. N-5 Panchsheel, he alongwith Surender Babbar, Pradeep Suri and Ronit Biswas reached there and met all the five persons as named above. Rs.85 lacs was handed over to Vishal Sharma by Ronit Biswas the receipt of Rs. 1.5 crore was issued as payment of Rs. 85 lacs. He had further deposed that the receipt bear the signature of Vishal Sharma and also signature of some witness. He had further deposed that the possession of N-5, Panchsheel was handed over to them with original key. He had further deposed that Vishal Sharma told to give the property documents within a week and hand them over to them. He had further deposed that he received the telephone call on 2.5.06 from P.S Hauz Khas informing that one person claiming to be owner of premises No. N-5 Panchsheel was there and his name was told as Sunil Luthra. He had further deposed that he went to P.S. Hauz Khas and met with police officials and there he come to know that he have been cheated and he therefore handed over the vacant possession of said premises to police by writing a letter. He had further deposed that thereafter, they tried to search for Vishal Sharma but they found his mobile phone switched off and the addresses which were provided by them were also found incorrect when they tried to locate them. He had further deposed that thereafter, the complaint was lodged in P.S. Hauz Khas. Witness has pointed out towards one of the accused State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.11 of 54 saying that he is Vishal Sharma (the name of accused is Shivender Kr.) then the witness has pointed out towards accused Rakesh saying that he is Rakesh. The witness has pointed out towards Anis saying that his name was Rajesh. Then the witness has pointed out towards Shyam saying that he has told his name as Shyam. Then the witness pointed out towards one accused saying that he is Mahavir (the witness pointed out towards accused Harbeer). The witness points out towards documents Ex.PW3/B. Ex,.PW3/A, Ex.PW3/C. Ex.PW2/B which are the receipt issued by accused Vishal Sharma. He had further deposed that the document already exhibited Ex.PW3/G, H. and J bear his signatures at point B. He had further deposed that seizure memo of the documents bears his signature at point A on Ex. PW4/A. The witness had also stated that the arrest memo exhibited as Ex.PW3/E-1 to E-5 bears his signatures at point A and Personal search memo Ex.PW3/F-1 also bears his signatures at point B.
9. PW5 Geeta Luthra had deposed that property No. N-5, Panchsheel Park belongs to his father-in-law Yashpal Luthra, who expired in January 1991. She had further deposed that it was their ancestral property and the said property was on rent with Pakistan High Commission & in September 2004, Pakistan High Commission vacated the said property and after that it was lying vacant. She had further deposed that in January, 2006, they kept a guard namely Mahavir Singh for safeguard of the said property who State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.12 of 54 was hired from Kaushal Security Agency. She had further deposed that on 02.05.2006, they received a call from their neighbour that the guard which was kept by them was missing and two other guards were on duty. She had further deposed that they went to N-5, Panchsheel Park & she saw two other guards were there and their guard was missing. She had further deposed that she immediately dialed 100 number and Police reached there and her statement was recorded by the police. She had also brought the original documents pertaining to the property no.N-5 , Panchsheel Park, New Delhi, measuring about 810 sq yards. The copy of documents of ownership are Ex. as PW 5/A, B, C, D and E in colly i.e. Mutation, conveyance deed, will, perpetual sub deeds and death certificate of Yashpal Luthra(OSR). She had further deposed that now the property stands in the name of her husband Sunil Luthra by virtue of these documents and specifically conveyance deed dt. 24.06.08.
10. PW6 HC Bodu Ram had deposed that on 29.12.06 at about 9.00 PM, he received rukka from SI Rajesh on the basis of which, he recorded the case FIR No. 792/06, copy of the same is Ex. PW 6/A. He had further deposed that his endorsement on the rukka is Ex. PW 6/B.
11. PW7 Pawan Kumar had deposed that Mahavir Singh (pointing towards accused Harbir Singh in the court) was a a security guard at N-5, Panchsheel Park, Delhi. He had further State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.13 of 54 deposed that he came to know later on that the said house N-5 has been sold out about 3 years back. He had further deposed that he is still working as security guard at N-7 Panchsheel Park. He had further deposed that IO came to him and made inquiries regarding the house N-5, Panchsheel Park. Owner of property N-7 is A.R.Palta. On cross examination by Ld. APP, the witness admitted that the purchaser of that house started living in N-5 and also placed their security guard in the house. He also admitted that the purchaser shifted to this house on 2.5.06 as it was summer days. He further admitted that N-5 was owned by Luthra family the accused who is known to him as Mahavir was posted as security guard by Luthra family.
12. PW8 Sudha Devi had deposed that she was living in N- 7, Panchsheel Park along with her husband Pawan Kumar who was working as Security Guard in N-7. She had further deposed that she was working in A-24 as Aaya during the day time and used to come only in the evening time. She had further deposed that she know the security guard of N-5 and who disclosed his name as Mahavir. She had further deposed that the incident is about more than 2 years back and she do not know anything else about this case. On cross- examining by Ld. APP the witness admitted that two persons used to come to the security guard of N-5 but she is not aware if those two persons used to represent themselves as the caretaker of the N-5. She further admitted that those two boys used to show the house for State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.14 of 54 the purpose of sale and purchase to the customers. She denied the suggestion that the name of those two persons were Vishal Sharma and Rajesh Kumar. She further stated that she is not aware if two more other persons also come there. She further stated that she had come to know that the said house has been sold in the year 2006 during summer days. She had further admitted that she had seen-one new security guard at N-5. The owner of the N-5 were Luthras. She had further admitted that she is not aware that accused Mahabir started showing the house in January 2006. She further stated she is not able to identify the two boys who had been visiting N-5 and used to show the house to the customers. She failed to identify he accused Shivender Gaur and Anees Ahmed on being shown to her.
13. PW9 Pradeep Kumar had deposed that he was working with Surender Singh Babbar in relation to the sale and purchase of property. He had further deposed that they started working together in the year 2004 and about 3 years back, Surender Babbar talked to him about the property at N-5 Panchsheel Park and told him that this property is for sale at a low price. He had further deposed that they went to that property and found watchman who is present in the court and pointed out by the witness towards accused Harbir along with two persons namely Vishal Sharma and Rajesh Kumar. He had further deposed that Vishal Sharma told him that the owner of this house has transferred this property in favour of his father who was working as Watchman there and as now his father has also expired State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.15 of 54 the property belongs to him. They shown their willingness to sale the property for 6 crores. He had further deposed that they talked to Neeraj Bhalla regarding the property who was known to both of them and offered the said property to him for purchase. Regarding the documents, the above said Vishal and Rajesh told them that the documents are lying in the village in mortgage and if the earnest money is paid they can get them released and can show to them. He had further deposed that they along with Neeraj Bhalla went to said property and property was shown to Neeraj Bhalla. Ronit also accompanied Neeraj Bhalla. He had further deposed that the deal was finalised between Neeraj Bhalla and Vishal and Rajesh for the sale of said property for the consideration of 5 crores. He had further deposed that on 1.5.06 he along with Neeraj Bhalla, Ronit Biswas and Surender Babbar went to the property N-5, Panchsheel Park for the payment. Only 85 lacs could be arranged and the same was paid to Rajesh and Vishal who agreed to take the said amount instead of 1.5 crores and Mahabir Singh was also present at the spot. He had further deposed that two more persons were also present with Vishal and Rajesh. The possession of the property was handed over to Neeraj Bhalla and Ronit Biswas. Ronit Biswas also appointed a security guard at the property N-5, Panchsheel Park. He had further deposed that on the next day i.e. on 02.05.06, Mr. Luthra and his family has reached at the property and have removed the security guard appointed by Ronit Biswas. He had further deposed that Luthra also claimed himself as the owner of the property. He State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.16 of 54 had further deposed that they tried to contact Vishal Sharma on mobile number of which was given to us by them but despite several efforts the said mobile could not be contacted as switched off. He had identified ccused Rajesh and Vishal by pointing out towards the accused Anees Ahmed as Rajesh and Shivender Kumar Gaur as Vishal Sharma.
14. PW10 Joginder Ahlawat had deposed that on On 27.1.07 he was posted as Reader to SDM, Headquarter/Defence Colony, District South. A request letter to provide the stamp paper register of stamp vendor Sunil Kumar Khatri, LN588 was requested for certain stamp papers. He had further deposed that the said request letter is now exhibited as Ex. PW 10/A & the whole register was handed over to Ct. Ashok Kumar, No. 1727/SD, P.S. Hauz Khas.
15. PW11 Ramesh Choudhary had deposed that he is running a business of providing security services at 52, Shastri Nagar, Ghaziabad in the year 2006. He had further deposed that Mahavir Singh, pointed out towards the accused Harbir Singh present before the court, came to him for the job of security guard. He recorded case particulars on 5th January, 2006. He had further deposed that on 1 January, 2006 Rakesh Aneja came to him for the demand of one security guard N-5, Panchsheel Park. He had further deposed that he himself went to N-5, Panchsheel Park along with State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.17 of 54 Mahavir Singh and met Mrs. Luthra at the house and posted Mahavir as security guard there. He had further deposed that in the first week of May, 2006 he came to know that Mahavir is not reporting for the duty. He had further deposed that he came to know that some other guard is performing duty there who has not been appointed by him. He had further deposed that he tried to look for his guard but he could not be traced. He had further deposed that after few months, police came to him along with him guard Mahavir and informed me that accused is disclosing his name as Hardeep Singh. He had further deposed that the name of the owner of N-5 was Geeta Luthra. He had also brought the original record maintained in his office wherein he recorded the details of Mahavir Singh, copy of which is exhibited as Ex. PW 11/A which bears the signature of his Manager Babloo at point A. (OSR).
16. PW12 Sunil Kumar had deposed that he was working as Stamp Vendor at Old Tehsil Building, Mehrauli, New Delhi with license no. LN588. He had further deposed that he deposited the record duly maintained by him in relation to the stamp papers sold by him in the office of SDM, Head Quarter, South District, M B Road. He had further deposed that he used to record true and correct entries in the register and he can identify his entries. One sealed register duly sealed with the DOC FSL tagged with the file is shown to the witness. The seal was opened and the register was shown to the witness who correctly identified the same as his register State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.18 of 54 deposited with SDM, HQ. He had further deposed that on 20.4.06, he sold the stamp paper at Sl. No. 4061 to 4068. At SI. NO. 4061 and 4062 total stamp paper of Rs. 100/- was sold with the fraction of Rs. 50/- + Rs. 50/- each. At Sl. No. 4063 Rs. 50/- stamp paper was sold and from Sl. No. 4064 to 4068 Rs. 10/- stamp paper was sold to Vishal Sharma S/o Vijay Sharma, R/o N-5, Panchsheel Park. The signature of purchaser were also taken on the register and already marked as Q 12 and Q 13 on page no. 307 Mark A1. On cross examination by Ld. APP for the State, the witness had admitted that he sold stamp paper no. C-0645 and C-064555 for Rs. 50/- each, already exhibited as Ex 3/A (colly.) and stamp paper no. 04AA482349, 04AA482348 and 04AA482347 of Rs. 10/- each, all are already exhibited as Ex. PW 3/C, Ex. PW 3/D and Ex. PW 3/B respectively and all bears his signature at the back of the stamp paper at point X along with his stamp and other details in his handwriting. He also stated that he cannot say if the accused Shivender Gaur presented himself as Vishal Sharma and purchased the above said stamp papers. He also stated that he could not give the details earlier as the matter pertains to the year 2006 and he have to sale large number of documents everyday. The witness had failed to identify accused Shivender before the court. He had further stated that it is due to large number of persons coming to purchase the papers, he can't identify any of them after gap of few years. He had further admitted that he maintain a correct entry record and also obtain the signature of the purchaser in the register rightly and State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.19 of 54 correctly.
17. PW 12A Ct. Subhash had deposed that on On 6.01.07 he was posted as Ct. in Special Staff, South District. On that day Inspr. Rajender Singh/Special Staff, called him and after briefing in the presence of S.I. Digvijay and two public persons instructed him to trace a person who is a local property dealer and having a habit of spitting while talking along with his physique, height and color etc. He had further deposed that on 14.1.07 he was looking for said person in the area of Chattarpur and during enquiry he came to know from one property dealer that a person namely Shivender Kumar Gaur was having the same habit and physique etc. and his name is not Vishal Sharma & he took him to his house. He had further deposed that he kept watching Shivender Gaur regarding his habit and observed the physique etc. during secret information collection. He had further deposed that on 15.1.07 the special staff consisting of S.I. Digvijay, S.I. Dahia, Ct. Ashok, and one more Ct. along with him standing and waited for the accused at Chattarpur Main Road, near Arya Samaj Mandir. Ravi Bhalla and one more public person was also present with them, when the accused came on the motorcycle at the spot Neeraj Bhalla identified him and he was apprehended by them and was made to sit in vehicle. Two more person came on the motorcycle to meet the accused who were also apprehended by them who were identified by the accused as Shyam Saini and the name of the other he could not recall. All the three persons were brought to Special Staff Office. He had further State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.20 of 54 deposed that during interrogation they admitted that in connivance with the chowkidar at Panchsheel area measuring about 800 yards, they entered that kothi and started living there. He further disclosed that one property dealer used to come there who told that he can sell this property. Then the said dealer came to the kothi along with a buyer who are interested to purchase that kothi. He had further deposed that thereafter the case was registered and the accused persons were booked in that case. He had further deposed that on 16/17 01.2007 at about 11.30PM he along with SI Surender Dahiya, SI Digvijay Singh, Ct. Ashok, CL. Rajender and accused Shyam Saini reached village Chindola at district Sambhal, Muradabad, UP. where they came to know that accused Rajesh resides in Delhi only. Thereafter they reached village Alipur at district Meerut, where they also came to know that the accused Harbir also resides in Delhi only and works as a guard. He had further deposed that thereafter they went back to Delhi and reached at the house of the accused Shyam Saini at Chatarpur Enclave. Accused Shyam Saini produced one document which was pertaining to a property which was purchased by the accused in the name of his mother. He had further deposed that accused Shyam Saini further revealed that this property was purchased with the money which he cheated in the present case. He had further deposed that in the meantime accused Rakesh Saini came at the house of accused Shyam Saini and he was apprehended by them. Accused Rakesh Saini had come on Pulsar motorcycle which he purchased from the cheated money. Accused Surender State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.21 of 54 Gaur, Anish Ahmed, Rakesh Saini, Shyam Saini were correctly identified by the witness.
18. PW13 Insp. Rajesh Dahiya had deposed that on 29.12.2006, he was posted as Sub Inspector in P.S. Hauz Khas, and on that day, complaint of Sh. Ronnit Biswas was received in the Police and was marked to him for investigation. He had further deposed that he discussed the matter with his senior officers and thereafter made endorsement on the said complaint & the said endorsement is Ex. PW13/A. He had further deposed that on 30.12.2006, he recorded the statement of the witness, namely Geeta Luthra. He had further deposed that on 06.01.2007, he examined complainant and other witnesses, namely, Sh. Neeraj Bhalla, Surender Babbar and Pradeep Suri and recorded their statements. He had further deposed that thereafter, they made a Joint Team in order to work out this case and the said Joint Team was consisting of the Police Staff of P.S. Hauz Khas and Special Staff, South District. He had further deposed that on 15.01.2007, they got a clue that the person, who impersonated himself as a Vishal Sharma in the present case, was actually Shivender Gaur. He had further deposed that to verify the above said facts, they called witnesses, namely, Surender Babbar and Neeraj Bhalla in the office of Special Staff at Ambedkar Nagar. Subsequently, they reached in the above said office and a Joint Team comprising of himself, Ct. Rajender, Ct. Ashok from P.S. Hauz Digvijay Singh and Ct. Subhash from Special Staff, South State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.22 of 54 District. He had further deposed that they proceeded towards the known address of Shivender Gaur at Chhatarpur and after reaching near the house of Shivender Gaur, they took mere positions there. He had further deposed that at about 3:00 p.m., one person came on a motorcycle and stopped his motorcycle near the said house and witnesses, Neeraj Bhalla and Surender Babbar had identified him as Vishal Sharma. He had further deposed that in the meantime, one car came and stopped there from which two persons got down and the above said witnesses had identified them as Rajesh Kumar and Shyam Soni. He had further deposed that he do not remember the registration number of the above said vehicles, however, he had mentioned their registration numbers at the time of preparation of the seizure memo. He had further deposed that thereafter, they apprehended all the above said persons and made inquiries from them regarding the incident. He had further deposed that during inquiry, the above said Vishal Sharma disclosed that his actual name is Shivender Gaur, Rajesh Kumar disclosed that his actual name is Anees Ahmad and Shyam Soni disclosed his actual name as Shyam Saini. He had further deposed that after interrogation, they were arrested vide arrest memo already Ex. PW3/E-1, Ex. PW3/E-2 and Ex. PW3/E-3. He had further deposed that their personal search was conducted vide memos already Ex. PW3/F-1, Ex. PW3/F-2 and Ex. PW3/F-3. The testimony of Insp. Rajesh Dahiya is read only to the extent right of cross-examination was granted to accused persons.
19. PW14 Dr. Sarita had deposed that she had appeared on State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.23 of 54 behalf of Deepa Verma, the then Senior Scientific Officer (Document), FSL Rohini. She had further deposed that she have been working with aforesaid officer Deepa Verma since October 2009 and is acquainted with her hand writing and signature. He had further deposed that the FSL report on record dt. 28.11.2007 was prepared by Deepa Verma which is Ex.PW15/A (running into 3 pages) bearing the signature of her on each page respectively.
Statement of accused
20. The examination of accused persons u/s 313 r/w 281 Cr.P.C. was recorded in which stated that they are falsely implicated in the case.
21. Accused persons led defence evidence and had examined themselves u/s 315 CrPC. In his defence evidence accused Shivender Gaur had deposed that he is known in the name of Shivender Kumar Gaur only. He never represented himself in the name of Vishal Sharma in the present matter. He had further deposed that IO got his signatures on around 10-15 blank papers in the police station during investigation. He signed on the said blank papers in his name as Shivender. He have not signed in the name of Vishal Sharma on any paper including Ex.DW2/A (colly) (running into 5 pages). He had further deposed that the said sample signatures in the name of Vishal Sharma, Rajesh Kumar, Shyam and State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.24 of 54 Rakesh have not been done by them and the IO had obtained said sample signatures from some other persons in his name and in the name of other accused persons just to implicate them falsely in the present case.
22. DW Anish had deposed that he is known in the name of Anish Ahmed only. He never represented himself in the name of Rajesh Kumar in the present matter. He had further deposed that IO got his signatures on around 15 blank papers in the police station during investigation. He signed on the said blank papers in his name of Anish Ahmed. He have not signed in the name of Rajesh Kumar on any paper including Ex.DW1/A (colly) (running into 5 pages).
23. DW accused Shyam Saini had deposed that he is known in the name of Shyam Saini only. He never represented himself in the name of Shyam Soni in the present matter. IO got his signatures on some blank papers in the police station during investigation. He had further deposed that he signed on the said blank papers in his name as Shyam Saini. He have not signed in the name of Shyam on any paper including Ex.DW3/A (colly) (running into 5 pages).
24. DW accused Rakesh Saini had deposed that is known in the name of Rakesh Saini only. He never represented himself in the name of Rakesh Kumar S/o Ram Kumar, R/o adjoining to Ansal State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.25 of 54 farm house, H.No. 230/B, Satbari, Chhatarpur, New Delhi in the present matter. He had further deposed that IO got his signatures on some blank papers in the police station during investigation. He signed on the said blank papers in his name as Rakesh. The sample signature shown in his name were actually obtained by IO from some other person and the same are not his signature. The said sample signatures are Ex.DW4/A (colly) (running into 5 pages).
25. Thereafter matter was fixed for final arguments.
26. It is argued on behalf of ld. APP for the State that all the accused persons were involved in offence of cheating. All ingredients of cheating are present in the case. Prosecution had proved its case beyond reasonable doubt. The case is fit for conviction.
27. The contention raised on behalf of accused persons are that -
(i) The property is question was 800 square yard property. Com- plainant Ronnit Biswas had stated that deal was finalised in in be- tween March - May 2006. The complaint was filed after 8 months by Ronnit Biswas.
(ii) Accused persons had no concern with the said property. They were neither in the occupation of said property nor in possession State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.26 of 54 thereof. They never entered in any deal. No documents were exe- cuted with regard to alleged property. Further no amount was re- ceived by them in regard to said property.
(iii) Ronnit Biswas, Neeraj Bhalla, Surender Babbar , Arun Kumar and Pradeep Suri had cooked the entire story to save themselves and made fictitious story. The property in question was of more that Rs. 20crores at that time. How can accused persons sell it for Rs. 5 crore. Intention of these witnesses was to grab the property as they were under impression that owner is no more. They had motive and intention to create fictitious documents.
(iv) Entire amount in present case is alleged to be paid by cash. If they finalised such a big deal of Rs. 5 crore, at least there should have been bank transaction or bank transfer. How can it be believed that accused persons took Rs. 85 lacs and ran away after giving pos- session to complainant. Had there been any transaction, there must be some bank transfer. For 8 months complainant was sitting silent.
(v) Not even Re 1/- was recovered from any of the accused per- sons. Cheating proceeds did not connect in the case. Bike was in the name of father of Shivender and was released to him on Superdari. Car was in the name of brother of Anish which was recovered from him. False allegations has been leveled against Shyam Saini that his mother purchased the house from the proceeds of this fraudulent transaction. False allegation are also leveled against Rajesh that bike State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.27 of 54 was purchased from the proceeds of this transaction. However the bike was in the name of his father. No proof or evidence was col- lected during the investigation that the bike or house or car was pur- chased through the proceeds of the fraudulent transaction. The dis- closure statements were signed in the PS and only through them ac- cused persons were connected in the case.
( vi) The deal was alleged to be executed in the name of Ronnit Biswas. He was not having even Rs. 10000/- in his account. Neeraj Bhalla was also not having anything in his account. They had said in their testimony that they borrowed money from Arun Kumar Direc- tor of MIR Realtors Pvt Ltd. Arun Kumar had said that he had given DD of Rs. 55 lacs to Neeraj Bhalla and Rs. 35 lacs in cash. Further Neeraj Bhalla arranged Rs. 3 lacs on its own. But no details of such amount has been placed on record. Ronit did not spend even a single rupee. No amount is connecting here. Since the consideration amount is not proved in the case, how can cheating be proved.They were only trying to connect the source of money. The entire creation is of Neeraj Bhalla and he himself had prepared all the papers.
(vii) If the transaction was of Rs. 5 crores accused persons should have received all the 5 crores from the complainant.
(viii) IO had not filed any proof that accused Harbir Singh had rep- resented as Mahavir Singh to the agency from which he was ap- pointed as guard. Neeraj Bhalla had cooked the entire story. Geeta Luthra who is the owner of alleged property had merely deposed State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.28 of 54 that Mahavir was engaged as guard only through Koshal Agency. Photo or other proof is also not filed in this respect. Why would complainant go to Ghaziabad for hiring the guard.
(ix) Stamp vendor was examined in the case but he had not dis- closed to whom the stamp papers were sold by him.
(x) There are material contradiction in the testimony of Rajiv Dahiya.
28. I would now reiterate relevant provisions involved in the present case. Section 416 of Indian Penal Code deals with Cheating by personation. It reads as-
"A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation.--The offence is committed whether the individual personated is a real or imaginary person."
The punishment for cheating by personation is prescribed u/s 419 IPC.
Section 420 Indian Penal Code deals with Cheating and dishonestly inducing delivery of property. The provision reads as -
State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.29 of 54
"Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a 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."
Cheating is defined under section 415 IPC which reads as -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".
Under this section, a dishonest concealment of facts is a deception within the meaning of this section To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:--
a) The representation made by the person was false.
b) The accused had prior knowledge that the representation he made was false.
State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.30 of 54
c) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
d) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.
29. Section 24 IPC describes "Dishonestly".--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
Section 25 IPC defines "Fraudulently".--A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
Section 23 IPC deals with "Wrongful gain".--"Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss".--"Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully/Losing wrongfully.--A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.31 of 54 when such person is wrongfully deprived of property.
30. The case of the prosecution is that in the month of march 2006 or before, accused Shivender Kumar Gaur impersonated as Vishal Sharma and introduced and claimed himself as owner and person in possession of premise N-5, Panchsheel Park. Also accused Anees Ahmed, Shyam Saini and Rakesh Saini impersonated themselves as Rajesh, Shyam and Rakesh respectively and had acted as attesting witness in execution of documents with respect to said property. Further accused Harbir Singh impersonated as security guard in the name of Mahabir Singh posted at the said premise. It is also allegations against accused persons that they all in pursuance of criminal conspiracy impersonated and deceived Ronnit Biswas and other persons and dishonestly induced him to deliver Rs. 85,00,000/- being part payment to the total cost of Rs. 5 crore for premise No. N-5, Panchsheel Park. The complainant in the present case is Ronnit Biswas and had stated that he lodged complaint with the police which is Ex. PW2/A and had duly identified his signature at point A. The witness had reiterated his complaint Ex. PW2/A and had specifically deposed that he was approached by two property dealers Surender Babbar and Pradeep Suri and they informed that Vishal Sharma is in absolute possession of property at N-5 Panchsheel Park, New Delhi and he is desirous of selling the property. According to him when a meeting was set up by two property dealers, Vishal Sharma told them that he and his father State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.32 of 54 were in absolute possession of this property for last 19 years and the original owner Yashpal Luthra had died in year 1987. Vishal Sharma also told him property was transferred to them through will. In this regard PW 3 Surender Singh Babbar had also corroborated the version of complainant and had deposed that when he went to N-5, Panchsheel Park with Pradeep Suri he met watchman there who took them to Vishal Sharma and Rajesh inside the premise. He also deposed that Vishal Sharma informed them that earlier his father was watchman and now he is doing that work. Vishal Sharma also informed that he was power of attorney holder of the said property but he refused to show saying that the same is lying mortgage at his native village. He also stated that after 2-3 days he again visited the premise where they again met Vishal Sharma and Rajesh and they again replied the same. PW9 Pradeep Kumar Suri had also deposed in the same line and had duly corroborated the version of complainant that Vishal Sharma told him that the owner of this house (N-5, Panchsheel Park)had transferred property in favour of his father who was working as watchman and as his father had expired & therefore property belonged to him. Thus, PW2 Ronnit Biswas, PW3 Surender Babbar and PW9 Pradeep Suri had consistently deposed that Vishal Sharma had represented himself as owner of property N-5 Panchsheel Park as will exist in his favor. It is evident from their testimony that Vishal Sharma had also represented himself to be in absolute possession of property said property. The version of said witnesses had remained consistent State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.33 of 54 even in cross examination. No suggestion had been put up by defence counsel to rebut this version of witnesses.
31. According to PW5 Geeta Luthra, property at N-5 Panchsheel Park property no.5, Panchsheel Park belongs to her father in law Yashpal Luthra who expired in January 1991 and it was their ancestral property. During her examination she had also brought original documents pertaining to property no N-5, Panchsheel Park measuring about 810 sq yards. The documents of ownership are Ex. 5/A, B, C and E (colly). The mutation deed, conveyance deed, will, perpetual sub deeds and death certificate of Yashpal Luthra placed on record shows that Yashpal Luthra was the owner of said premise. After the demise of Yashpal Luthra the property now held in the name of her husband Sunil Luthra by virtue of documents and specifically conveyance deed dated 24.06.2008. In her cross examination, not even a single suggestion had been given to witness to disprove her version that property now stands in the name of her Husband Sunil Luthra. Thus, Sunil Luthra and Geeta Luthra were in rightful possession and owner of the aforesaid property at the date of alleged offence.
32. PW2 Ronnit Biswas had pointed out towards accused Shivender Kumar Gaur (standing in the dock) and stated that he is Vishal Sharma.PW4 Neeraj Bhalla, PW3 Surender Babbar and Pradeep Suri also pointed out towards accused Shivender Kumar State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.34 of 54 Gaur and stated that he is Vishal Sharma. The fact that accused Shivender Kumar Gaur knowingly misrepresented himself as Vishal Sharma i.e. he portrayed himself as some fictitious persons before PW2 Ronit Biswas, PW4 Neeraj Bhalla, PW3 Surender Babbar and PW9 Pradeep Suri shows that he personated himself in the name of fictitious person Vishal Sharma. Further the fact that he also represented himself as owner of property N-5, Panchsheel Park, New Delhi after the demise of Yashpal Luthra shows that he misrepresented himself as the owner & person in absolute possession of property in question.
33. PW2 Ronnit Biswas has also testified that on 01.05.2006, when they reached the property along with Surender Babbar and Pradeep Suri, he could manage only Rs. 85 lacs and told the same to Vishal Sharma who consulted with his associate and agreed to the deal. He also testified that Vishal Sharma gave them a prepaid receipt of Rs. 1.5 crore and also a few documents. Further Vishal Sharma promised them to hand over all the original papers including sale deed and a will at the time of complete payment, which was to be given within a first week from 1st may 2006. When the witness was shown the documents in the envelope of FSL for finding out the said receipt, he duly identified the same and pointed out the original receipt of Rs. 1.5 crore which is Ex. PW2/B. He stated that the said receipt was already prepared and handed over to him presence of Neeraj Bhalla, Surender Babbar and Pradeep Suri at State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.35 of 54 N-5 Panchsheel Park. According to him persons named in the complaint beside Shivender Gaur were his associates and were present at the time of handing over the money. The witness had duly identified the receipt EX. Pw2/B. Perusal of the receipt Ex. PW2/B shows that Rs. 1.5 crore was handed over by complainant Ronnit Biswas against the Surrender and possession of the property no N-5, Panchsheel Park. Further it also mentions that said receipt was executed in presence of witness Rajesh Kumar , Shyam and Rakesh bearing their signatures at point Q2(e), Q3(d) and Q4(d) respectively. It also bears the signature of executant Vishal Sharma at point Q1(b). Thus, it is clear that the receipt Ex.PW2/B had been executed by Vishal Sharma in the presence of witness Rajesh Kumar, Shayam and Rakesh.
34. It is the submissions of complainant that Ronnit Biswas that he could only manage Rs. 85 lacs for giving it to the Vishal Sharma but had given already prepaid receipt of Rs. 1.5 Crore. This fact is also duly corroborated by the version of PW3 Surender Babbar that Rs. 85 lac was given by the Neeraj Bhalla to Vishal Sharma and Rajesh. The factum of payment is also duly corroborated by the version of PW4 Neeraj Bhalla and PW9 Pradeep Suri who were present at the time deal was finalized and documents were executed. According to PW4 Neeraj Bhalla he arranged Rs. 85 lac from MIR Realtors Pvt Ltd. As per the version of complainant Ronnit Biswas he had borrowed the sum of Rs. 85 State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.36 of 54 lac from Neeraj Bhalla who was his uncle. This fact is also duly corroborated by the testimony of PW1 Arun Kumar who had specifically stated that he had given amount of Rs. 52 lac and Rs. 30 Lac respectively. He had also proved a certificate dt. 29.12.2006 Ex.PW1/B regarding the fact that he had made the payments to Neeraj Bhalla of Rs. 82 Lacs. In his cross-examination PW1 Arun Kumar had stated that there was no written agreement between him and Neeraj Bhalla regarding the payment but he had stated that Rs. 52 lac was given by demand draft and Rs. 30 lac was given in cash. Though in his cross-examination he had admitted that he had not brought record pertaining to the transaction of Rs. 82 lac but he had filed the certificate from Charted Accountant regarding the payment of Rs. 52 Lac by M/S MIR Realtors Pvt Ltd which is Ex.PW1/D. Thus the statement of PW1 Arun Kumar consistent even in cross- examination that he had made payment of Rs. 82 lac to Neeraj Bhalla. Thus the question of consideration amount for purchasing the property is duly proved in the case.
35. In the testimony of PW1 Arun Kumar, PW2 Ronnit Biswas and PW4 Neeraj Bhalla had deposed that on payment of Rs. 85 lac possession of N-5 Panchsheel park property was handed over to them with the original key and they took one week time for vacating the premises. According to them Vishal Sharma told that they would give documents within a week and would not hand over to them. PW4 Neeraj Bhalla had duly identified the documents State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.37 of 54 Ex.PW3/B, Ex.PW3/A, Ex.PW3/C and Ex.PW2/B and also Ex.PW3/G, Ex.PW3/H and Ex.PW3/J. He also duly identified his signature of said documents. PW3 Surender Babbar had also identified document which were signed by the accused persons & were on stamp papers. He had identified the receipt Ex.PW2/B of Rs. 1.5 crore, surrender deed with his signature Ex.PW3/B, declaration and consequention of settlement amount Ex.PW3/B, possession letter Ex.PW3/C, receipt cum claim certificate Ex.PW3/D and had duly identified the signature on the documents.
36. Perusal of the PW3/A i.e. surrender deed shows that Vishal Sharma had surrendered property N-5 Panchsheel Park in favor of Ronnit Biswas on 01.05.2006. Each page on surrender deed bears the signature of Vishal Sharma. The witness to the surrender deed were Rajesh Kumar Sharma and Rakesh whose signatures are point at Q2A, Q3A, Q4A respectively. The deed were also signed by Surrender Babbar and Neeraj Bhalla. Perusal of the declaration of consideration of settlement amount is Ex.PW3/B shows that Vishal Sharma had made declaration that his father Vijay Sharma was the caretaker of the said property since 1985 and was employed by Yashpal Luthra till his death and Vijay Sharma automatically became the owner of said property of 800 sqr yard. Each page of declaration of consideration of surrender amount also bears signatures of Vishal Sharma at each page signifying that he is the executant of said deed with signature of Rajesh Kumar, Shaym State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.38 of 54 Soni, Rakesh, Surender Babbar and Neeraj Bhalla. Possession letter Ex.PW3/C shows that Vihal Sharma had handed over the possession of the property in the hands of Ronnit Biswas. As per the possession letter Vishal Sharma, Rajesh Kumar, Shyam Soni, Rakesh Kumar were resident of the said property before handing over the possession of the property. The said possession letter also bears signatures of Vishal Sharma & signature of witness as Rajesh Kumar, Shyam Soni & Rakesh Kumar.
37. The FSL expert was summoned in the case as PW15 Dr. Sarita appeared on behalf of Deepa Verma and she had duly identified the signatures of Deepa Verma on FSL report dt. 28.11.2007. The witness had admitted in his cross-examination that report Ex.PW15/D was not prepared in her presence and she is not aware about the contents thereof but it is significant to mention here that Section 293 Cr.PC is very relevant in this regard. Section 293 provides that reports of scientific experts upon any matter duly submitted to him for examination or analysis and report in course of any proceedings maybe used as evidence in any inquiry, trial or other proceeding. Further Clause 3 of said section provides that when the expert is summoned by the court he can either appear personally or depute any responsible officer working with him to attend the court if the officer is conversant of the fact of the case. Though the witness had admitted in his cross-examination that she is not aware of the contents Ex.PW15/A but she had duly identified State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.39 of 54 the signatures of Deepa Verma and she had worked with her in the FSL Rohini. Thus in all probability she must be accustomed with the signatures of the witness Deepa Verma. It goes on to prove that the FSL report Ex.PW15 bears the signature of Deepa Verma herself and was prepared by Deepa Verma only. Though she had remained ignorant about the report but the said report is relevant under 293 CrPC and is very much admissible.
38. Perusal of the report prepared by Deepa Verma Ex.PW15/A shows that the hand writing in the name Vishal Sharma with the specimen handwriting of Shivender Gaur were found identical. The handwriting in the name of Rajesh Kumar were found similar to specimen signature of Anees and handwriting of Rakesh was found similar to that of Rakesh. In Murari Lal v. State of M.P., (1980) 1 SCC 704 it was observed by Hon'ble Supreme Court of India that:
"A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.40 of 54 on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the court has to decide in each case on its own merits what weight it should attach to the opinion of the expert."
39. It is true that expert opinion on handwriting is merely opinion and cannot be sole basis of conviction. But it can always have a corroborative value. In their defence evidence, DW1 Anees Ahmed, DW2 Shivender Kumar Gaur, DW3 Shyam Saini and DW4 Rakesh Saini had denied their specimen signatures on documents DW1/A(Colly), DW1/B(Colly), DW1/C(Colly) and DW1/D(Colly). DW3 Shyam and DW4 Rakesh Saini had admitted in their cross examination that they had signed on point A,B,C,D and E of State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.41 of 54 documents DW3/A and DW4/A respectively. Thus, accused Shayam Saini and Rakesh Saini had admitted their specimen signatures taken by IO during the investigation. Though Shivender Kumar Gaur and Anees Ahmed had denied their specimens Signatures but on simple comparison of their specimens signatures with the signature affixed on Surrender deed Ex. PW3/A, Declaration of consideration of settlement amount Ex. PW3/B, Possession letter Ex. PW3/C and receipt of rs. 1.5 crores Ex. PW2/B, using power conferred under section 73 IEA, the signature of Vishal Sharma appears to be similar to specimen signature of Shivender Kumar Gaur on these documents. Further signatures of Rajesh Kumar Sharma appears to be similar to that of specimen signature of Anees Ahmed, signature of Shaym Soni appears similar to specimen signature of accused Shyam and signature of accused Rakesh Kumar appears to be similar to that of specimen signature accused Rakesh Saini. Corroborating the fact of simple comparison with the FSL report Ex. PW15/A and also the admission of their specimen signature by accused Shyam and Rakesh Saini in their cross examination goes on to to prove that Surrender deed Ex. PW3/A, Declaration of consideration of settlement amount Ex. PW3/B, Possession letter Ex. PW3/C were executed by accused Shivender Kumar Gaur in the name of Vishal Sharma. It also goes on to prove that attesting witness to said documents were accused Anees Ahmed in the name of Rajesh, accused Shyam Saini in the name of Shyam Soni and accused Rakesh Saini as Rakesh Kumar. This fact also get State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.42 of 54 strength for the from the version of stamp vendors PW12 Sunil Khatri that he sold stamp paper no C-064554 and C-064555 of Rs. 50 each, stamp paper no. 04AA482349, 04AA482348 and 04AA482347 of Rs. 10 each Ex. PW3/A to PW3/D (colly) to person named Vishal Sharma.
40. There is a well known phrase "Word may lie but document cannot". The specimen signatures of accused persons Shivender Gaur, Anees Ahmed, Shyam and Rakesh Saini in the name of Vishal, Rajesh, Shyam Saini and Rakesh compared with signatures affixed on Surrender deed Ex. PW3/A, Declaration of consideration of settlement amount Ex. PW3/B, Possession letter Ex. PW3/C and recipe Ex. PW2/B proves that accused Shivender Gaur had impersonated himself in the name of Vishal Sharma, accused Anis Ahmed had impersonated as Rajesh, Shyam had personated as Shaym Soni and Rakesh Saini had signed as Rakesh Kumar and had executed documents claiming ownership & absolute possession of N-5, Panchsheel Park, New Delhi. The fact of impersonation is also corroborated by version of PW1 Ronnit, PW4 Neeraj Bhalla, PW3 Surender Babbar and PW9 Pradeep Suri who had pointed out towards accused Shivender Kumar Gaur saying that he is Vishal Sharma. PW4 Neeraj Bhalla, PW3 Surender Babbar and PW9 Pradeep Suri had also pointed out towards accused Rakesh saying that he is Rakesh. The witnesses has pointed out towards Anees saying that his name was Rajesh. They also pointed out State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.43 of 54 towards Shyam Saini saying that he has told his name as Shyam Soni. It is also pertinent to note that the above witnesses had also duly identified Harbir Singh that he is Mahavir. As per Geeta Luthra in January, 2006, they kept a guard namely Mahavir Singh for safeguard of the said property who was hired from Kaushal Security Agency. PW11 Ramesh Choudhary who was running the business of providing security guard in the name of Kaushal Agency had also corroborated the fact that in January 2006 he posted Mahavir as a security guard on the said property. He also proved his version by original record maintained in his office Ex.PW11/A. It is also pertinent to mention that the witness Ramesh Choudhary had also duly identified accused Harbir as the one whom he posted as Mahavir at the house of Geeta Luthra. PW7 Pawan Kumar had also duly identified accused Harbir Singh as Mahavir Singh who was posted as security guard at N-5 Panchsheel Park. PW8 Sudha Devi had also identified Harbir Singh as Mahavir Singh who was posted as security guard at N-5 Panchsheel Park. Since PW7 Pawan Kumar was security guard in the adjoining house N-7 and Sudha Devi was also living in N-7 Panchsheel Park in all possibility Mahavir Singh who was deputed as security guard at N-5 Panchsheel Park must be known to them as they must have seen him earlier when he was posted at that house because N-7 is adjoining/nearby to N-5 Panchsheel Park. Though both the witnesses had turned hostile and do not remember that certain persons used to visit N-5 for the purpose of sale and purchase alongwith security guard but the fact State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.44 of 54 that they had duly identified Harbir Singh as guard Mahavir Singh goes on to the fact that Harbir Singh impersonated himself as Mahavir Singh for the purpose of cheating. Thus, it is proved that all the accused persons falsely impersonated themselves in the case.
41 In the case of Ram Sharan Chaturvedi v. State of MP, Criminal appeal no 1066 of 2010; august 25, 2022, it was observed that -
The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-
2. An agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:..
It was further observed that - the most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.45 of 54 end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient.
42. From the above discussion it is clear that PW2 Ronnit Biswas, PW2 Surender Babbar, PW4 Neeraj Bhalla and PW9 Pradeep Suri, Vishal Sharma had represented himself as owner and person in absolute possession of the premise i.e. N-5 Panchsheel Park. Further the execution of documents receipt of Rs. 1.5 crore Ex.PW3/B, Surrender deed Ex.PW3/A, declaration of consideration of settlement amount Ex.PW3/B, possession letter Ex.PW3/C is also proved to be executed by accused persons Shivender Gaur, Anees Ahmed, Rakesh Saini and Shyam Saini in the case. This shows that accused Shivender Gaur had falsely represented himself as owner and person in absolute possession of N-5 with the dishonest intention for fulfilling his ulterior motive of grabbing property. Since execution of these documents is attested by Rakesh Saini, Anees Ahmed and Shyam Saini it is also clear that they had in conspiracy with accused Shivender Gaur became the part to the State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.46 of 54 execution of these documents for the purpose of grabbing the property and unlawfully gaining the proceeds thereof. Thus the element of "deception" is proved in the case.
43. The factum of "inducement" is also proved in the case as if the accused persons would not have made false representation complainant could not have purchased the said property. The execution of these documents are also deceptive qua real owner Geeta Luthra and her husband. As the possession letter in respect of said property was also handed over by accused persons to complainant Ronnit Biswas the fact that accused persons had delivered the possession of said premise vide possession letter Ex.PW3/C in return for consideration amount of Rs. 85 lac, it clearly shows that they had induced complainant to part with their money. Thus the element of "dishonest delivery of property" is also proved in the case. Thus the ingredients about cheating and thereby dishonestly inducement delivery of property is proved in the case. The fact that Harbir Singh was posted as security guard at that premise in the name of Mahavir Singh he could have disclosed that some other person had unlawfully occupied the premise to the real owner Geeta Luthra. According to PW Geeta Luthra she came to know that some other person had entered their premise by neighbor. Being security guard it was the duty of Harbir Singh to inform Geeta Luthra that some persons are trying to enter her property. The fact that he remained silent and did not inform about the same to State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.47 of 54 real owner also shows his part in the conspiracy to grab the property. Thus the ingredients of cheating against him is also made out. Further since the accused Shivender Guar had impersonated himself as Vishal Sharma, accused Anees Ahmed as Rajesh, accused Shyam Saini as Shyam Soni and accused Rakesh Saini as Rakesh Kumar for the purpose of cheating ingredients of Section 419 IPC are also duly proved in the present case. The element of conspiracy is also duly proved in the present cast as all the accused persons acted had active role in the present case for grabbing the property of Geeta Luthra and her husband. Further in pursuance of active conspiracy is also proved in case that they had executed documents with respect to property Ex. PW3/A, PW3/B, PW3/C and PW2/A.
44. It is the contention of the Ld. counsel for the accused persons that the complaint was filed after 8 months by Ronnit Biswas and the deal was finalized in between March to May 2006. Thus there is a delay in the FIR. In this regard it is pertinent to mention that PW5 Geeta Luthra had deposed that on 02.05.2006 she received a call from their neighbor that the guard on duty was missing and some other guards were present there. She also made a 100 number call after reaching the said premise. Further the documents i.e. surrender deed Ex.PW3/A, declaration of consideration of settlement amount Ex.PW3/B, possession letter Ex.PW3/C and receipt cum clearance certificate also pertains to May 2006. This shows that the agreement with respect to property State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.48 of 54 made in the month of May 2006 and the documents handing over possession was also made in May 2006. The testimony of Stamp Vendor PW12 Sunil Kumar also shows that for executing those documents stamps were purchased in April 2006. Further the fact that immediate 100 number call was made by wife of actual owner PW5 Geeta Luthra immediately after coming to know about the incident shows that the factum of cheating had already been brought to the notice of police in May 2006. Though the complaint was filed on 29.12.2006 this lapse of 6 months is immaterial as there must be possibility that complainant would be trying to contact the person named Vishal Sharma and would have been trying to trace the same. When he could not be traced the FIR was lodged thereafter. Thus the contention raised on behalf of Ld. counsel for the accused persons that there is a delay in lodging the FIR is without any merits.
45. The contention raised by Ld. counsel for the accused persons is that accused persons had no concern with the property and no documents were exhibited by them. Further no amount was received by them regarding the property. In this regard it is worth mentioning that in the above discussion it is already proved that accused persons had executed the documents with respect to property Ex.PW3/A, Ex.PW3/B, ExPW3/C and Ex.PW2/B. Further PW1 Arun Kumar had also proved that he had given Rs. 82 lac to Neeraj Bhalla for investing in the property. His certificate dt. 29.12.2006 Ex.PW1/B and certificate from charted accountant State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.49 of 54 making payment of Rs. 52 lac by M/S MIR Realtors Pvt Ltd Ex.PW1/D is also on record to prove the consideration amount. It is further pertinent to mention here that the present case is not civil case where proving the adequate consideration for sale is quintessential to prove sale. It is a criminal case pertaining to offences of cheating where documents are sufficient to prove the case. There is no reason for on record to disbelieving the execution of documents Ex.PW3/A, Ex.PW3/B and Ex.PW3/C. Even if we go by the contention of Ld. counsel for the accused persons that the entire incident had been outcome of conspiracy of witnesses Neeraj Bhalla, Ronnit Biswas, Surender Babbar and Pradeep Suri. But again it would be worth reiterating that documents cannot lie though words can. Even if we disbelieve the testimony of the said witnesses but the execution of these documents cannot be disproved. Thus this contention of Ld. counsel for the accused persons is also without merits.
46. It is also the contention of Ld. counsel for the accused persons that the property in question was more than Rs. 20 crores at that time, how can accused persons sell it for Rs. 5 crores. It was the intention of these witnesses to grab the property. In this regard to this contention it is worth mentioning that the execution of documents has been proved in the case. The best known reason for selling the property of Rs. 20 crore must be known to accused persons only. It is also the contention of the Ld. counsel for the State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.50 of 54 accused persons that their entire payment in the present case is made by cash. When the deal is of Rs. 5 crore there should have been bank transactions. True, as per bank norms such a huge transaction has to be made through cheque or bank transfer only but if the transactions had been made in cash the complainant could be liable to bank but this will not go on to disprove the entire evidence which is already proved on the basis of sufficient material on record that accused persons had cheated the complainant by executing the false documents of the property.
47. The contention raised by Ld. counsel for accused persons is also that not even a single rupee had been recovered from the accused persons. The bike was in the name of father of Shivender Gaur, the car was in the name of brother of accused Anees. The property was in the name of mother of accused Shyam. I would again reiterate that the consideration though relevant would not disprove the execution of documents Ex.PW3/A, Ex.PW3/B and Ex.PW3/C in the present case. Further it may be possible that in order to hide themselves from the offence of cheating, accused persons must have purchased the property/car or bike in name of their near relatives. No person committing cheating would generally purchase the property immediately after offence of property/car or bike in thier name. Thus this contention of Ld. counsel for the accused persons is also without merits.
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48. It is also the contention of the Ld. counsel for the accused persons that Ronnit Biswas did not have even ten thousand rupees in his account and Neeraj Bhalla did not have anything in his account. Ronnit Biswas did not even spend a single rupee. Since consideration amount is not proved how can cheating be proved. In the present case it is proved that complainant had borrowed amount of Rs. 82 lac from Arun Kumar and Rs. 3 lac from Neeraj Bhalla. Further he was an architect and also earning Rs. 50 lac which means that he is financially sound. Though at that time he did not have Rs. 82 lac but the fact that he had borrowed money from Arun Kumar is sufficient to rebut the contention of Ld. counsel for the accused persons.
49. It is also the contention of Ld. counsel for accused persons that the deal was of Rs. 5 crore and the accused persons should have received all five crore rupees. In this regard it is clear from the record that the intention of accused persons was to cheat complainant and the actual owner. Had their intention been to fairly deal in the property, they would have waited till the entire amount is received. Since accused persons did not have the will with respect to the property as told by them to complainant and Neeraj Bhalla, Surender Babbar and Pradeep Suri so it must be possible that they had ran away immediately after receiving the consideration amount of Rs. 85 lac.
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50. It is also the contention raised on behalf of accused persons that stamp vendor was examined in the case but he did not disclose to whom stamp papers were sold by him. In this regard, the testimony of stamp vendor is clear that the said stamps were pertaining to execution of documents Ex.PW3/A, Ex.PW3/B and Ex.PW3/C were purchased from him. Though he did not disclose in his cross-examination to whom he had sold those stamp papers but he had clearly stated reason that many stamp vendors purchased stamps from him every day and also probably due to lapse of time he must not be able to recall the person who had purchased the stamp.
51. The contention of Ld. counsel for the accused persons is also that IO had not filed the proof that accused Harbir Singh had represented as Mahavir Singh to the agency from which he was appointed as guard. Why would complainant go to Ghaziabad for hiring the guard. In this regard not only complainant Neeraj Bhalla, Surender Babbar or Pradeep Suri had identified Harbir Singh as Mahavir Singh but also the security guard and his wife of nearby house N-7 had also identified him as the security guard. There is no reason to accept the contention that why would complainant hire guard from Ghaziabad as the PW11 Ramesh Choudhary was running his business of providing security business & for the same reason complainant must have contacted him for providing guard.
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52. It is well settled that in a criminal trial the burden of proof is on the prosecution to prove its case beyond reasonable doubt. Any contradiction or iota of proof in favour of accused can completely dismantle the case of prosecution. In the present case there are. There are cogent material on record to suggest accused persons had committed cheating with respect to property N-5, Panchsheel Park, New Delhi. It is also evident on record that accused persons had acted in conspiracy with each other and had also impersonated themselves executing documents Ex. PW3/A, Ex. PW3/B and Ex. PW3/C and thereby committed cheating. Allegations against accused persons are duly proved in the case.
Conclusion & Decision
53. Considering the above discussion and material placed on record, I hold that the prosecution had prove its case against the accused persons beyond reasonable doubts. All accused persons are accordingly convicted for offence u/s 419 r/w 120B, sec 420 r/w 120B and sec 120B IPC. Accused persons shall be heard on sentence separately.
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 18.07.2023 MM-06,SOUTH/SAKET DELHI State Vs. Shivender Gaur & Ors FIR No. : 792/2006 PS Hauz Khas U/s 419/420/120B IPC Page no.54 of 54