Delhi District Court
Naresh Goyal vs (I) State on 29 April, 2015
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL SESSION JUDGE03
SOUTH EAST DISTRICT, SAKET COURTS
NEW DELHI
IN THE MATTER OF
CASE ID No. 02406R0156942014
CR NO. 23/14
Naresh Goyal
S/o Sh. Pramanand Goyal
R/o A27, Krishna Park,
Devli Road, Khanpur,
New Delhi
.......................Revisionist/complainant
Versus
(i) State
(ii) Kapil Garg
S/o Sh. Telu Ram Garg
R/o K21, Hauz Khas Enclave,
New Delhi 110007
...........................Respondents/accused
DATE OF INSTITUTION: 03.07.2014 DATE OF RESERVING ORDER: 09.04.2015 DATE OF PRONOUNCEMENT: 29.04.2015 CR NO. 23/14 Page No. 1/18
1. The present Criminal Revision Petition has been filed on behalf of revisionist who is complainant in case FIR No. 190/11 U/s 465/471 IPC, PS NFC assailing the Order dated 24.01.2014 passed by Ld. ACMM wherein the accused Kapil Garg (respondent no. 2 herein) was discharged by Ld. ACMM for the offences alleged.
2. As per the revisionist, he purchased the entire ground floor in the plot/property bearing no. A271, New Friends Colony, New Delhi110065 for his wife from Smt. Sheela Devi W/o Sh. Telu Ram by executing Sale Deed dated 15.12.2009. At the time of execution of Sale Deed dated 15.12.2009, there were some minor unfinished and incomplete jobs such as provision of some doors and windows, electric bulbs, kitchen ware, bathroom showers and taps besides some jobs relating to paint, polish etc. The building at that point of time was not habitable for residential purposes. It is alleged that all accused Smt. Sheela Devi and her two sons jointly and severally promised to complete all these 'minor' incomplete works in the portion sold to his wife and that too in a very short time. The accused Sheela Devi nominated her son Kapil Garg (respondent no. 2 herein) to undertake on her behalf the completion of entire pending works henceforth, to complete the said pending works, the revisionist and his wife had permitted the respondent no. 2 to enter the said premises with workmen for completing the said incomplete works. It is alleged that in the garb of completing those pending works, the respondent no. 2 alongwith his family members with fraudulent intentions and designs, necessarily in conspiracy against them, clandestinely decided and grabbed the property of the revisionist. It is further CR NO. 23/14 Page No. 2/18 alleged that in furtherance of their ill conceived plans, on 23.05.2010, Romi Garg, brother of respondent no. 2 who is also engaged in the business of real estate and construction and also the authorized signatory for his firm M/s Kapil Builders with an intention to intimidate the revisionist and also to illegally/fraudulently grab the property, assaulted the revisionist, the watchman and threw him out of the property in question. Immediately, SOS was sent to the police control room and a complaint was filed by the revisionist against Romi Garg and others for assaulting and for criminal intimidation. In order to escape the legal action, Romi Garg mischievously claimed that he had in his possession written documents to show that not withstanding the sale, the revisionist and his wife owed Romi Garg and his mother substantial amount of money on account of works that he had purportedly carried out in the premises during the last near six months. Romi Garg promised the local police that he will produce the documents in a short while and necessarily in a day or two. In view of the undertaking of Romi Garg, no FIR was registered against Romi Garg and he was directed by the local police to produce the documents as soon as possible and the revisionist was assured by the local police that legal action, if necessary shall be taken at the right time. It has been further stated that after waiting patiently for one week when the revisionist visited the police station, he was shown a photocopy of a purported MOU that was alleged to have been executed on 15.12.2009 (i.e. immediately after the execution of the sale deed) purported on a non judicial stamp paper of a value of Rs. 50/ bearing serial no. T 701126 allegedly executed between the revisionist and his wife on one hand and Kapil Garg on the other wherein it was alleged that the revisionist's wife Smt. Gayatri Goyal in terms of the alleged MOU CR NO. 23/14 Page No. 3/18 had agreed to pay to the accused Kapil Garg a sum of Rs. 1,14,36,000/ (One Crore fourteen lakhs thirty six thousand only) for a successful execution of a contract for renovation work in the premises in terms of the Sale Deed dated 15.12.2009.
3. At the very outset, the document appeared to have been fabricated and forged. The said fact was brought to the notice of the SHO PS New Friends Colony as the revisionist had vehemently denied that any such MOU was ever executed by his wife Smt. Gayatri Goyal in favour of anybody. The revisionist had even maintained that even on the face of the said photocopy of the purported MOU, the signature of the revisionist's wife appearing on the said purported document i.e. photocopy had been forged and did not appear to be the genuine signatures of his wife Smt. Gayatri Devi. The revisionist noticed that there were no signatures or endorsement of any witnesses on the document and it was neither registered nor attested by the notary public. Further, despite his various complaints, no action was taken by the police. It is averred that subsequently, the revisionist was informed that Kapil Garg had instituted a civil suit against the revisionist and his wife in the Court of Ld. District Judge, Saket Courts seeking a stay order/injunction against them. It was discovered that in the judicial file, respondent no. 2 Kapil Garg had annexed a copy of the alleged MOU dated 15.12.2009. It is further alleged that the purported copy of the alleged MOU dated 15.12.2009 clearly established that the document was a photocopy of a document that had been manipulated and forged by the respondent no. 2/accused.
4. During investigation, it was found that the photocopy of stamp paper CR NO. 23/14 Page No. 4/18 which was used to prepare the said MOU dated 15.12.2009 was bearing stamp no. T701126 and was in denomination of Rs. 50/ and said stamp paper was issued on 26.04.2010 to the stamp vendor namely Sh. Ramesh Batra but on verification of the register of stamp vendor Sh. Ramesh Batra, writing was found illegible and no entry of date from 26.04.2010 to 30.04.2010 was found. The original MOU was also not found by the IO. IO collected the photocopy of the said MOU dated 15.12.2009 but as the stamp paper on which it was prepared was issued on 26.04.2010 i.e. the date after the date of execution of MOU, hence, IO came to the conclusion that the accused had used forged MOU.
5. It is further averred that the forgery committed by accused was apparent on the face of the fact that the date on the alleged MOU was scribed out as 15.10.2009 even though the purported stamp paper on which the same was written down allegedly on 15.10.2009 had been released for resale by the office of the government of NCT of Delhi only after more than four months of the day on which that alleged stamp paper bearing serial no. T701126 was used by the accused for fabricating the aforesaid alleged MOU.
6. On application U/s 156 (3) Cr. PC filed by the revisionist, the Ld. MM issued directions for registration of an FIR.
7. During investigation, however, IO found that there was no material against the accused persons for the offence U/s 420 IPC and he accordingly filed the CR NO. 23/14 Page No. 5/18 chargesheet for the offences U/s 465/471 IPC only.
8. Vide impugned Order dated 24.01.2014 passed by Ld. ACMM after hearing detailed arguments, he has discharged accused/respondent no. 2 Kapil Garg for the offences U/s 465/471 IPC in the FIR No. 190/11.
9. However, it has come up that in the meanwhile, another FIR No. 211/11 U/s 420 IPC was registered on a complaint lodged by the accused (respondent no. 2 herein) against the complainant Smt. Gayatri Goyal and her husband.
10. Counsel for accused/respondent no. 2 Kapil Garg vehemently argued that MOU dated 15.12.2009 was executed between accused Kapil Garg and complainant Gayatri Goyal, however, the original of same was retained by the complainant and its photocopy was given to accused. He further submitted that after sometime, some dispute arose between the parties and accused contacted the husband of the complainant carrying the photocopy of said MOU. It is alleged that in the said meeting, the husband of complainant has changed the first page of MOU and this fact was even admitted by the husband of the complainant later on to the accused. Ld. Counsel further submitted that accused was not aware of the change of first page of the MOU and he filed a civil suit for permanent and mandatory injunction and also filed a photocopy of said MOU in the civil Court to substantiate his claim. The complainant however in his written statement dated 25.02.2011 filed by the complainant and her husband in the civil suit had challenged the execution of MOU CR NO. 23/14 Page No. 6/18 and also made complaint to the police and the present case was registered. Ld. Counsel further submitted that the photocopy of the original MOU was also used by the accused before the change of its first page to apply for a loan from Oriental Bank of Commerce, Narwana (Haryana) . He further submitted that the accused also found another photocopy of original MOU and he made a complaint to the police against the complainant and her husband and the abovementioned cross case vide FIR No. 211/11 U/s 420 IPC was registered. It is further contended by Ld. Counsel for accused/respondent no. 2 that photocopy of original MOU and photocopy of MOU which was filed in Civil Suit by the accused were both sent by the IO in case FIR No. 221/11 to CFSL for comparison of the signatures of the parties and according to CFSL result, both MOUs were found bearing the signatures of complainant. Ld. Counsel for accused further submitted that the complainant and her husband themselves played a fraud by changing the first page of the MOU dated 15.12.2009 by replacing it with a stamp paper which was issued on 26.04.2010.
11. Ld. ACMM vide his impugned Order dated 24.01.2014 has observed as under:
"The allegations against the accused are that he had forged the MOU dated 15.12.2009 and used the same as genuine in the court of law. The complainant denied her signature on the said MOU. Whether the said MOU is bearing the signature of the complainant or not can only be ascertained by comparing the specimen signature of the complainant with the alleged forged signature on the said MOU, but the IO had not sent the specimen signature of the complainant to be compared with her alleged forged CR NO. 23/14 Page No. 7/18 signatures on the MOU to the CFSL. IO has not sent the specimen signature of the complainant for comparison as original MOU was not found. IO merely relied upon the stamp paper no. T701126 which was issued on 26.04.2010 but MOU was bearing its execution date 15.12.2009, therefore, it was considered a forged document. However, the other IO in FIR No. 221/11, registered on the complaint of the accused, sent the photocopy of the MOU in question i.e. on stamp paper no. T701126 as well as the photocopy of MOU on stamp paper no. F.635829 to the CFSL to ascertain the signatures of the complainant and accused and their genuineness. As per the CFSL result both the photocopies of the MOUs were bearing the signatures of the complainant. The question arises if the complainant had never executed either of the MOUs dated 15.12.2009, then, how her signature could come on them. During investigation in FIR No. 221/11, Sh. Sudhir Jain, the stamp vendor, who issued/sold the stamp paper no. F.635829 on which original MOU was executed on 15.12.2009, was interrogated and he had conferred that the stamp paper no. F.635829 was sold in the name of Gayatri Goel, who is complainant in the present case. It is a very vital point which cannot be ignored that the stamp paper no. F.635829 which is also bearing the signature of the complainant Gayatri Goel was issued/sold in the name of Gayatri Goel. It is also important to mention here that if the accused had executed forged MOU dated 15.12.2009 then why did he use the stamp paper no. T701126 which was issued on 26.04.2010 by the treasury. If the accused had bad intention then he could give any date of execution of MOU after the issuance of stamp paper. The CFSL result primafacie establishes that MOU dated 15.12.2009 which is on stamp paper no. F.635829 was executed between the complainant and the accused. The photocopy of the same was with the CR NO. 23/14 Page No. 8/18 accused. Again question arises if the accused was having a photocopy of original MOU then why did he file a forged copy of MOU in the court. This further primafacie establishes that the accused had no intention to file a forged MOU in the court of law. It was held in Jaswant Rai Mani Ram Ahhaney Vs State of Bombay, AIR 1956 SC 576 that a guilty intention is an essential ingredient of the offence of cheating. In other words mens rea on the part of accused must be established before he can be convicted for an offence of cheating."
"The IO in the present case did not send the photocopies of MOUs to CFSL for their examination. If he had sent the same to the CFSL, then, the CFSL result which is lying in connected file FIR No. 222/11 would have come in this case also. As the MOUs in both the cases are same, therefore, this Court cannot ignore the CFSL result of the said MOUs. Considering the CFSL result of the MOU in question, I am of the considered view that there is no prospect of this case and the vital time of the court should not be wasted for holding a trial only for the purpose of completing the procedure. The submissions made by Ld. Counsel for complainant that on the oral evidence of accused, he cannot be discharged as Section 91 and 92 of Indian Evidence Act excluded the oral evidence, has no substance because the MOUs are documentary evidence and they are bearing the signature of the complainant. Further submission of Ld. Counsel for complainant that there are material on record to frame charge against the accused for offence U/s 415/420/467 IPC has also no substance as neither any material came during the investigation for offence U/s 415/420/467 IPC nor the complainant brought anything on record to show the commission of offence U/s 415/420/467 IPC. The ruling Suresh Kumar Johri Lal Vs State of Jharkhand and CR NO. 23/14 Page No. 9/18 another, (2005) 12 SCC 278 relied upon by Ld. Counsel for the complainant is not applicable to the facts of the present case as neither the accused seeking permission to lead defence evidence at the stage of charge nor the Court is allowing him to do so. The CFSL report which is lying in connected file pending in this court does not amount leading defence evidence at this stage."
12. The revisionist however has challenged the impugned Order dated 24.01.2014 passed by Ld. ACMM on the following grounds:
(i) The Ld. Trial Court has failed to appreciate that the accused Kapil Garg forged the MOU dated 15.12.2009 and fraudulently used the same in the Court of law to establish his possession over the property in question.
(ii) The Ld. Trial Court failed to appreciate that the accused has filed the forged MOU in the court of law and thereby played a fraud upon the Court by filing the said MOU in the Court.
(iii) The Ld. Trial Court failed to appreciate that there was sufficient material on record to frame charges U/s 465/471 IPC and also for the offences U/s 420/467 IPC against accused/respondent no. 2.
(iv) The Ld. Trial Court has not taken into consideration the statement of Sh.CR NO. 23/14 Page No. 10/18
Ramesh Batra U/s 161 Cr. PC wherein he has stated that the accused Kapil Garg approached him to do a fake entry in the register maintained by them regarding the issuance of the forged stamp paper.
(v) The Ld. Trial Court has failed to appreciate that the revisionist has nowhere at any point of time admitted before accused Kapil Garg that he has changed the first page of the MOU in question.
(vi) The Ld. Trial Court has failed to appreciate that the revisionist and his wife have clearly stated in their statements given to the investigation officer in case FIR No. 221/11 that the accused Kapil Garg scanned the signatures of the wife of revisionist from the undertaking given to accused Kapil Garg at the time of purchasing some shares from one of the company of the accused Kapil Garg and copied the same on the forged MOU dated 15.12.2009.
(vii) The Ld. Trial Court has failed to appreciate that the stamp paper bearing no. F.635829 was got issued and taken by the accused/respondent no. 2 Kapil Garg in the name of the wife of revisionist and the same can be proved from the fact that the register wherein the entry was made regarding the selling of the stamp paper does not bear the signature of the revisionist or his wife.
13. During arguments, however, the main emphasis has been placed by the Ld. Counsel for revisionist on the contention that there are two cross cases interse CR NO. 23/14 Page No. 11/18 parties bearing FIR No. 190/11 and FIR No. 221/11. He submitted that the matter is at the stage of charge and the Ld. Trial Court has considered the material which was available in the cross case whereas it is well settled that nothing beyond FIR could have been considered. He should have only seen the record of the case as put forward by the IO. He argued that both the cases should have been decided separately and only the material on record is to be considered whereas the Ld. Trial Court has failed to do so.
14. Counsel for respondent however again vehemently argued and raised the question thereby submitting that whether in a situation of cross cases, the provision for discharge is unavailable. He contended that submission made by Counsel for revisionist in regard to cross cases was pertaining only to a situation where charges in the cross cases were framed and the evidence is going on and at this stage only, evidence is to be recorded separately and the cases are separately decided and if there is sufficient evidence to proceed against accused and in case there are two views, the view in favour of the accused is to be taken.
15. He contended that mens rea is indeed a necessary ingredient for constituting the offence of forgery and section 471 IPC and that by using the alleged document, no cheating or even an attempt of cheating has been committed. It is a legal perrequisite that a complaint as envisaged under section 195 Cr. PC should be filed by the concerned court before whom the alleged false evidence/document was filed. There is neither any such complainant from the court of the Civil Judge nor was CR NO. 23/14 Page No. 12/18 an application U/s 340 Cr. PC filed by the complainant before the said court. That as per the record it is established that even prima facie no forgery was committed by the accused and the accused has used the said MOU without knowledge that the same was not genuine and there was no such intention to use a forged or false document. He further stated that even otherwise, the first pages of both the MOU's (The Stamp Papers) do not bear the signatures of respondent Kapil Garg and only the signatures of Gayatri Goel are available on the same, which implies that the complainant could have easily replaced the first page with the other. He contended that IO in both the cases is same, the IO in the present case has not sent the MOU for comparison whereas in the case lodged by the respondent no. 2, the MOU was sent to FSL and report was filed. The IO being the same, there was no need for him to do the exercise twice. He could simply place the copy of same report in other case. The FSL result being a public document, it could be considered to arrive at a conclusion. The accused had a document, which he used before the Bank for availing a loan and there was no reason to use the changed MOU in the present case as there was no advantage which he could have availed by filing a different MOU than the one executed between the parties. He further submitted that all the contents of the first page of both the MOUs were same 'word' to 'word.' There was nothing on first page which could have given any benefit to the accused. Hence, there was no mensrea and dishonest intention on part of the accused. He had no knowledge regarding filing of false document and the submissions raised by the accused were supported by FSL expert's opinion wherein it has come up that the first page of both MOUs was bearing signatures of the complainant. He further submitted that there were signatures of the CR NO. 23/14 Page No. 13/18 complainant only on first page of both MOUs and it was their document which they have replaced just to cheat the accused and accused had used the same unknowingly as there was no purpose for him to do so. There was no line or sentence in the entire document he could have taken advantage of. No monetary benefit could be seen. There are no ingredients of offence U/s 415 IPC. FSL result which is on record was not the document produced by the accused but it was obtained by the IO who had investigated both the cases.
16. I have heard the rival contentions raised on behalf of both the parties at length.
17. The basic allegation raised against the accused Kapil Garg, the respondent herein is that he has forged the MOU dated 15.12.2009 and used the same as genuine in the court of law. The complainant has denied her signatures on the said MOU and even the execution of any such document. Whether the said MOU was bearing the signatures of the complainant or not could only be ascertained by comparing the specimen signature of the complainant with the alleged forged signature on the said MOU but the IO has not sent the specimen signature of the complainant to be compared with the alleged forged signature on the MOU to the CFSL with the plea that the original MOU was not found. The IO has merely relied upon the stamp paper number T701126 which was issued on 26.04.2010 but MOU was bearing its execution date as 15.12.2009, therefore, the same was considered and presumed to be a forged one.
CR NO. 23/14 Page No. 14/18
18. In the cross case bearing FIR No. 221/11, however, the IO has sent the said photocopy of the MOU in question that is on the same stamp paper No. T701126 as well as the photocopy of the MOU on Stamp paper No. F635829 to the CFSL to ascertain the signature of the complainant and accused and their genuineness. As per the CFSL report, both the MOU's were found bearing the signatures of the complainant, wife of the present revisionist. The CFSL report was indeed available on the record of the case and nothing prevented the court to take the same into consideration especially when the same IO had sent the documents for comparison and there was no need to send the document twice.
19. It was to be only prima facie ascertained as to whether the accused used the forged MOU before the court in the civil suit filed by him knowingly or intentionally for the purpose of cheating, however, as it has come up on record that both the MOUs were bearing the signatures of the complainant, it seems beyond comprehension that he would use a forged MOU when he had with him an original all along and that too when the alleged forged document i.e. MOU was undisputedly a verbatim reproduction of the original document i.e. the other MOU which he had filed with the bank much earlier. The use of alleged forged MOU would cause no benefit to him. In fact there is no indication as to how by the use of this forged MOU any unlawful / monetary advantage was caused to the accused and for how much. There is also nothing on record to indicate the quantifiable loss caused to the complainant. Further there is nothing on record to presume or even suspect existence of mens rea on his part and as also observed by the Ld. ACMM, a guilty intention is CR NO. 23/14 Page No. 15/18 an essential ingredient of the offence of cheating which I agree with the Ld. Trial court is missing in the present case.
20. I find force in the argument advanced by Ld. Counsel for respondent that from the documents as produced, containing the CFSL opinion and material relied upon by the prosecution, it is clearly established that there were two views possible and perhaps no evidence is required to prove the said two views. Both the views are based upon documents and CFSL opinion and are forming part of the available record. It is well settled that in a criminal case, if two views are possible on facts or even law, the view which is in favour of and beneficial to the accused should be preferred over other. The judgment passed by the Hon'ble Supreme Court in P. Vijayan Vs. State of Kerala 2010 (2) SSC 398 has direct application in this regard wherein it was held that "if two views are possible and one of them gives rise to suspicion only, or distinguished from grave suspicion or to the guilt of the accused, the trial judge will be empowered to discharge the accused and at this stage, the trial judge is not required to see whether the trial will end in conviction or acquittal"
21. Furthermore, the facts as brought before this court does not lead to a grave suspicion even prima facie that forgery has been committed by the accused and that he used the said forged MOU with the knowledge that the same was not genuine and he had intentions to use a forged/false document. Moreover, the first pages of both the MOUs (The Stamp Papers) do not bear the signatures of respondent Kapil Garg and only bear the signatures of Gayatri Goel which is also established by the CR NO. 23/14 Page No. 16/18 CFSL opinion.
22. The Ld. ACMM has also given vital importance to the fact that during investigation in FIR 221/11, it has been found that the stamp paper vendor Sh. Ramesh Batra's stamp register bore no name as to whom the stamp paper number T701126 were sold. However, the investigation revealed that the stamp paper number F635829 was sold in the name of Gayatri Goel, wife of the present revisionist.
23. I may note that the judgment of Satish Mehra Vs. Delhi Administration (1996) 9 SCC 766, has been wrongly relied upon by the Ld. ACMM which stands modified by the later judgment in, "State of Odhisha Vs. Depender Nath Padi" wherein the Hon'ble Supreme court observed that the material produced by the accused could not be looked into at the stage of charge. In the present case however, it is not the accused who has produced any material before the court. The court had all the material available before it which was presented by the investigating agency along with the charge sheets in both the connected cases. The available documents, CFSL opinion and the availability of another MOU cannot be completely ignored even if a full fledged trial is conducted in the present case, the factual matrix would remain the same and the situation would still be of two possible versions and views.
24. In my considered view, in the said facts and circumstances, no prejudice would be caused to any of the parties on reading the document, the CFSL opinion CR NO. 23/14 Page No. 17/18 which was pertaining to the MOU in dispute in both the cases as the document had already been taken on record on both the cases. Both the counsels have already advanced detailed arguments in this regard.
25. Both the cases as put forward are in the nature of cross cases, though, it was necessary for the investigating agency to have consolidated the investigation in both the cases and then to have filed the charge sheet which has not been done. Be that as it may, since the document i.e. CSFL / opinion on MOU has been placed on record in both the cases and also supplied to all the parties. Therefore, it cannot be said that any prejudice was caused to any one or that anyone was taken by surprise. I do not find any illegality in the reading of the said document by the Ld. ACMM. However, in case, if the trial court considers at any stage of trial that there is fresh / additional material produced on record by the revisionist before this court in his defence prima facie showing that some offence was committed by the respondent herein, it is always open for the Ld. Trial Court to proceed against him in accordance with law. In view of the aforesaid, however, I do not find any illegality or infirmity in the order passed by Ld. ACMM. The revision petition accordingly stands dismissed.
26. TCR be sent back to Ld. Trial Court alongwith a copy of this Order. Revision Petition record be consigned to Record Room.
ANNOUNCED IN THE (SUDESH KUMAR)
OPEN COURT ON 29.04.2015 ASJ, S.E., SAKET COURTS
NEW DELHI
CR NO. 23/14 Page No. 18/18