Delhi District Court
State vs . Jagbir Singh on 10 July, 2020
IN THE COURT OF MS. RICHA SHARMA METROPOLITAN MAGISTRATE-07, NORTH, ROHINI COURTS, DELHI State Vs. Jagbir Singh FIR No. 166/08 PS. Swaroop Nagar U/s. 120-B/420/467/468/471/ IPC New Case No. 5283220 JUDGMENT
1) The date of commission : 20.12.2006 Of offence 2) The name of the complainant : Smt. Vijay Sharma 3) The name of accused : Jagbir Singh 4) Offence complained of : 420/467/468/120-B IPC 5) The plea of accused : Not Guilty. 6) Final order : Acquitted. 7) The date of such order : 10.07.2020 Date of Institution : 08.07.2010 Judgment reserved on : 08.07.2020 Judgment announced on : 10.07.2020 FIR No.166/08 State Vs. Jagbir Singh 1/38 THE BRIEF REASONS FOR THE JUDGMENT: BRIEF SYNOPSIS OF THE CASE.
1. The case of the prosecution is that, on or subsequent to 20.12.2006 at Delhi, accused agreed with certain persons like Narender Bhati, Shyamlal Yadav, Parma Saranpal, Smt. Pushpapal, Brijesh Kumar and Mahinder Kashyap, to do or cause to be done an illegal act, to wit sell the properties as was mentioned in the agreement to sell executed between accused Jagbir and Smt. Vijay Sharma dated 20.12.2006, without you being having any ownership or legal title to the property, to others and thereby accused Jagbir committed an offence punishable under Section 120 of the IPC. On the said date, time and place, accused Jagbir Singh after entering into an agreement with Smt. Vijay Sharma dated 20.12.2006, accused Jagbir cheated Smt. Babita Devi, Sh. Jitender, Sh. Dilshad, Smt. Fayajan and others by dishonestly inducing them to believe accused to be the owner or having legal title to the property and to pay accused money for selling them portions of property as mentioned in the above-said agreement executed between accused Jagbir and Smt. Vijay Sharma, and that accused Jagbir thereby committed the offence, punishable under Section 420 of the Indian Penal Code. That accused Jagbir between the time period mentioned herein above forged documents like GPA, Deed of Sale of Agreement, Possession Letter, Deed of Will etc. executed between accused and the persons mentioned in herein above para for transfer of property (ies) of which accused Jagbir did not have the ownership or legal title for the purpose of cheating which accused knew or of which accused had the reasons to believe the time when accused used it, to be a forged documents and that accused committed an offence, punishable under section 467/468/471 IPC.
FIR No.166/08 State Vs. Jagbir Singh 2/38
2. FIR was registered and investigation was done in this case. Chargesheet u/s 420/467/468/471/120-B/452/448/457/506/427/201/34 IPC was filed. Accused was summoned. He was supplied the documents in compliance of section 207 Cr.P.C.
CHARGE
3. Thereafter, charge u/s 120-B/420/467/468/471 IPC was framed upon the accused on 29.01.2011, to which he pleaded not guilty and claimed trial.
4. Thereafter, the matter was listed for prosecution evidence. Prosecution examined following witnesses :-
PROSECUTION EVIDENCE
5. PW1 is Vijay Sharma, D/o Sh. Ved Prakash Sharma. She stated that in November, 2006, she had entered in an agreement to sell to purchase a plot measuring about 40,000 sq. yards from Surender Kumar Jain and Parveen Kumar Jain at Kadi Vihar, Delhi. She further deposed that one person with the name of Kuldeep Tokas was residing in her neighbourhood and he was a property dealer. Kuldeep Todas asked her if she was interested in selling the above said land or not and she said that she wanted to sell the above said land.
She further stated that when she showed her willingness to sell the property, Kuldeep Tokas came at her house along with Bahadur, Hariram Pardhan and Kuldeep Tokas and toldher that Bahadur and Hariram Pardhan were interested in purchasing the property. She showed the agreement to sell to them and on seeing those documents, they agreed to purchase the property and the deal was struck for Rs.800 per square yard. They gave her Rs.50,000 as token amount and stated that the remaining amount would be given to her at their office. They left her house with the photocopy of agreement to sell. After about 8-10 days Kuldeep Tokas FIR No.166/08 State Vs. Jagbir Singh 3/38 came at her office and she along with her son Sunny went to the office of Bahadur alongwith Kuldeep Tokas at Libaspur. At the office of Bahadur Singh, the persons namely Satpal Singh, Bahdur Singh, Hari Ram Pardhan and accused Jagbir and one-two other persons were present. There Satpal and Bahadur Singh handed over to her Rs.3,50,000/- against which Bahadur Singh issued her a receipt in the name of Jagbir against the consideration amount of Rs.4 lakhs. She asked the Satpal and Bahadur Singh the reason for issuing the receipt in the name of Jagbir, to which they replied that accused Jagbir was one of their associate and it was Jagbir who used to take possession of the properties which they purchased and Jagbir only used to look-after those properties. Those persons including the accused further asked her to bring the complete chain of the ownership pertaining to property. Thereafter, she approached Parveen Jain and Surender Jain from whom she had purchased the property & asked them for relevant documents. In regard of which they executed GPA and handed over the same to her. Thereafter, accused Jagbir came at her house with two cheques in the amount of rupees one lakh each. Thereafter, she deposited those cheques in the bank and out of those cheque, one cheque was got encashed however the other one could not be encashed due to insufficient fund in the account of Jagbir. Jagbir and she were maintaining the account in the same bank. She told the accused about non encashment of one of the cheque and asked for money on which the accused handed over her one lakh rupees.
She further stated that on 20-12-06, Bahadur and Kuldeep Tokas came at her house along with already executed agreement to sell which was bearing the signatures of Jagbir. They handed over her two lakh in cash and thus till that date, she has received Rs.8 lakhs. Thereafter, she signed that agreement to sell vide photocopy of agreement to sell Ex.PWI/A (the original agreement to sell remained FIR No.166/08 State Vs. Jagbir Singh 4/38 in the custody of accused) which bears her signatures at point A, B and C. She made agreement to sell the property with the accused only with regard to unsold property (means the property which was not already sold by the original owners i.e Jain Brothers and which was handed over to her).
She further stated that as per the agreement, accused had to pay the remaining amount on 30.09.07 and had to take physical possession of the property. On 31.01.07, some police officials came at her house and informed her that accused Jagbir and his associates open fired at the property which had already been sold out by Jain Brothers. She showed the relevant documents pertaining to the property. She came to know later on that the accused persons were booked in a separate case with regard to firing and taking illegal possession of the property, which had already been sold out by Jain Brothers. She informed about the incident of firing to Kuldeep Tokas. Thereafter, she alongwith Kuldeep went to the office of Bahadur at Libaspur, where they found Satpal and Bahadur and other persons to whom she said that she did not want to finally execute the agreement with them on which they told her that Jagbir had already been arrested with regard to incident of firing and therefore further deal can be executed. However, she was not willing to further execute the dealings with them and told them that she was ready to return back the advanced money and the relevant documents. On this, they told her that "JAGBIR TO JAIIL MAI CHALA GAYA AB WO JAB WAHI BAHARI AAYEGA TABHI USKE SIGN KARVA KE DEAL CANCEL KARENGE OR APKE I KAGAJ VAPAS KARENGE. Thereafter, she returned back to her house alongwith Kuldeep Tokas. Later on, she came to know that accused Jagbir was already bailed out in the month of February and therefore she again alongwith Kuldeep went to the office of Bahabur and asked him to cancel the deal as accused FIR No.166/08 State Vs. Jagbir Singh 5/38 Jagbir has been released on which Bahadur told me that " YE TUM JANO YA JAGBIRI JANE".
Thereafter, in the month of March, 2007 the accused Jagbir alongwith Narender Bhati, Shyam Lal Yadav and two other persons came at her office during day time and accused Jagbir asked from her as to whether, she wanted to cancel the deal and threatened her. " NA TO MAIN DEAL CANCEL KARUNGA OR NA HI OR PAISA DUNGA OR AGAR JAMIN PAR AYE TO TUMHARI TANGE TUDVA DUNGA". Shyam Lal was already armed with danda and he told her that "MERE PASS PAGAL KA CERTIFICATE HAI OR TUM MERA KUCH BHI NAHI BIGAD SAKTE, APNE BACHO KA DHYAN RAKHO". At that time, accused Jagbir was also armed with firearm weapon. Thereafter, the accused alongwith his associate left her office. Thereafter, accused Jagbir and his associates started to threat her on telephone.
Thereafter, once she alongwith her son namely Sunny went to her property Khasra No. 1050-1060, they found that accused Jagbir alongwith his other associates was present there and on seeing them the accused alongwith his associates told her "PHIR AA GAYE TUM". Thereafter, the notice for cancellation of agreement to sell with accused was sent to the accused through her counsel vide cancellation of agreement to sell Ex.PW1/B, bearing her signature at point A. Thereafter, accused Jagbir started to harass her and once he sent one person namely Javed to her chowkidar/ watchman on the property and he asked from the chowkidar about the time of her visit on the property and that he was having supari to kill her from the accused. She also came to know that accused Jagbir also filed a civil suit with regard to property and she also received a notice from the concerned court. Thereafter, she got published in the national newspaper Punjab Kesari about the cancellation of agreement to sell vide Ex.PW1/C. Accused Jagbir also cheated FIR No.166/08 State Vs. Jagbir Singh 6/38 other innocent person by selling to them the property as she did not execute any agreement to sell, GPA and other relevant documents in favour of accused. She lodged the complaint against the accused before SHO PS Swaroop Nagar and other higher police authority and the photocopy of the same is Mark A and Mark B, which bears her signature at point A. However, no action was taken by the police on her complaint and ultimately she had to lodge the compliant before the court vide Ex.PW1/D, which bears her signature at point A. She handed over the relevant documents to police pertaining to purchasing of property from Surender Jain and Praveen Jain, copy of Khatoni, Mutation in favour of Jain Brothers and the other relevant documents vide seizure memo Ex.PW1/E, which bears her signature at point A and also vide the relevant documents ExP1 which runs into 71 pages.
She also handed over the copy of site plan of property, copy of site of sold and unsold land of khasra no. 1050, 1059, 1060 and of 1052, photocopy of agreement to sell between her and the accused alongwith receipt, photocopy of cancellation of agreement to sell and a photocopy of newspaper cutting with regard to incident of firing vide memo Ex.PW1/F, which bears her signature at point A and also vide those relevant documents Ex.P2 which runs into 11 pages. The accused had also started to sell the property which had already been sold by Jain Brothers showing himself as the owner of the whole property (sold and unsold). Despite that she had already handed over a list of already sold properties to accused. The accused damaged the boundary wall of the property which had already been sold to innocent person. One Smt. Hema Rani was also duped by the accused and a separate case is registered in this regard. The accused has also sold the properties to one Mr. Amit by forging the documents and other persons on the basis of forged documents and in this regard also separate case was registered against accused Jagbir and his associates.
FIR No.166/08 State Vs. Jagbir Singh 7/38 This witness was cross examined by Ld. Defence Counsel.
6. PW2 is Gulshan S/O. SH. PURAN CHAND. He stated, that about 4-5 years ago, his cousin brother Inder Raipal (son of his paternal uncle Sh. Om Parkash) introduced him to the accused Jagbir. He had already expressed his desire to Inder Raipal to purchase a property and therefore, he introduced him to the accused Jagbir about whom, Inder told him that he was a Property Dealer. He went to a plot of 200 yards, situated in Khasra No. 1059, located in between Street No. 8-9, C Block, Khadi Pur alongwith his brother Inder, where they found Smt. Vijay. After sometime, accused Jagbir also reached there. Smt. Vijay told them that she had already sold the said property to accused Jagbir, who told him that he had already sold out the property to Narender Bhati and he can make arrangement to purchase the said property to him. Sh. Narender Bhati also reached there and an agreement was struck with Sh. Narender Bhatia, to whom, he handed over Rs. 50,000/ as part payment (bayana). There was already a boundary wall on the plot and he got fixed the electric meter in his name. Thereafter, Smt. Vijay came there alongwith two police officials and 5-6 other persons and started to ransack the property, he made the call to PCR at 100 number, on which, the PCR police officials came there and on seeing the local police officials, they left the spot stating that there was no need to take any action in the presence of local police officials. Thereafter, ultimately he had to file a civil suit, which is still pending. However, he is still in possession of the said property.
This witness was cross examined by Ld. Defence Counsel.
7. PW3 is SMT. BABITA, W/O. SH. DINESH KUMAR. She stated that about five years back, she had gone to purchase plots in Swaroop Nagar and somebody FIR No.166/08 State Vs. Jagbir Singh 8/38 had given her reference of accused Jagbir and his partner Smt. Vijay Sharma, who were demarcating plot for selling purpose. They went to the plot and met both of them. She purchased the plot measuring 100 sq. yards in Khasra No. 1059 and 1060 in Gali No. 9 and 10, Block C, Kadipur, Delhi from them and paid Rs. 4 Lacs to Smt. Vijay Sharma as consideration. The paper in this regard were prepared and signed by accused Jagbir Singh. The certified copy of the same is Ex. PW3/A. The original is filed in Tis Hazari Courts. After some days, Smt. Vijay Sharma came and stopped them from putting boundaries on the plot. Smt. Vijay Sharma stated that she is the owner of the land, then, they searched for accused Jagbir but could not find him as he was in the jail. Smt. Vijay Sharma demanded money from her and stated that she will sell 50 sq. yard from her plot to someone else, in case, she did not pay her more money. She deposed that she was cheated by Smt. Vijay Sharma.
This witness was cross examined by Ld. APP for the State regarding certain points as she resiled from her earlier statement. She denied that Smt. Vijay Sharma was not the partner with the accused. He deposed that the land was in the name of Smt. Vijay Sharma. She stated that she is illiterate, so she did not know that the documents are to be signed by the owner of the land for the purpose of sale.
This witness was also cross examined by Ld. Defence Counsel.
8. PW4 is SMT. KRISHNA, W/O. SH. NATHU RAM. She stated, that she had purchased a plot in Kadipur, Swaroop Nagar, at which, she is residing, measuring 100 sq. yard through her neighbour Inder. She had only constructed one room but she could not construct toilet as Smt. Vijay Sharma is not letting her construct the same. She had purchased the above mentioned plot in Khasra No. 1062 from Narender Bhati. She did not have original papers of the plot with her as the same FIR No.166/08 State Vs. Jagbir Singh 9/38 were filed in Tis Hazari Court. She had purchased the plot @ Rs. 4,000/- per sq. yard. She had made the payment to Narender Bhati in presence of Smt. Vijay Sharma. After sometime, when the rates of the property increased, Smt. Vijay Sharma came and stopped her from doing any construction on the plot. Smt. Vijay Sharma stated, that she is the owner of the land. She was cheated by Smt. Vijay Sharma, who was partner with Narender Bhati.
This witness was cross examined by Ld. APP for the State regarding certain points as the witness was resiling from her earlier statement. She denied that Smt. Vijay Sharma was the partner with Narender Bhati. He deposed, that the land was in the name of Smt. Vijay Sharma. She stated that she is illiterate, so she did not know that the documents are to be signed by the owner of the land for the purpose of sale.
This witness was also cross examined by Ld. Defence Counsel.
9. PW5 is Sh. Parveen Kr. Jain S/o Lt. Sh. N.L. Jain. He stated, that so far as he remembers, in the year 1989/90, his father purchased some properties at village Kadipur in his name and in the name of his brother Sh. Surender Kr. Jain. Out of those properties, some properties were sold to different persons by his father on obtaining his signatures on relevant documents. In the month of November 2006, an agreement to sell was executed by him in favour of Smt. Vijay Sharma with regard to unsold properties i.e. the properties which were not sold by his father. (Vide agreement to sell Ex.PW2/A which bears his signatures at point A). Thereafter, a GPA was also executed in favour of Smt. Vijay Sharma vide Ex.PW5/B, bearing his signature at point A. Smt. Vijay Sharma did not pay to him the whole consideration amount and she merely gave to him some part consideration amount. As per terms of agreement it was settled between him and FIR No.166/08 State Vs. Jagbir Singh 10/38 Smt. Vijay Sharma, that she would pay him as and when the properties regarding which the deal was struck between him and Smt. Vijay Sharma, will sold. It was further decided that sale consideration amount would be given to him and thereby he authorized Smt. Vijay Sharma to further sell the properties. As per the clause of agreement to sell i.e. Ex.PW5/A, Smt. Vijay Sharma was authorized to sell the properties.
He further stated that he handed over the list to police of persons to whom the properties were sold before deal being confirmed with Smt. Vijay Sharma vide list Ex.PW5/C, bearing his signatures at point A. The said list were seized by police vide seizure memo Ex. PW5/D, bearing his signature at point A. This witness was cross examined by Ld. APP for the State.
This witness was also cross examined by Ld. Defence Counsel.
10. PW6 is Dilshad S/o Late Sh. Arshad. He stated, that accused Jagbir was known to him as the accused is the native of village, which is situated near his village. The accused used to supply milk earlier. After the death of his father, he alongwith his family shifted to Delhi and started to reside on rented premises. He used to work under the accused. He expressed his desire to the accused to purchase a property on which the accused told him that he alongwith Smt Viay Sharma was plotting some land. The accused owed him around Rs. 1,50,000/- including his and his brother's wages and dues towards the milk which was supplied by them to the accused alongwith their savings. When he demanded the said money from the accused, accused and Sm Vijay Sharma told him that "TUM ABHI KIRAYA KE MAKAN MAIN RAH RAHE HO. TO PAISO KE BADLE JAGAH HI LE LO".
He further stated, that the accused alongwith Smt. Vijay Sharma showed him a plot at Kadi Vihar and he agreed to purchase the same. However, the accused did FIR No.166/08 State Vs. Jagbir Singh 11/38 not execute any document in this regard and when he asked Smt. Vijay Sharma to execute the relevant documents, Smt. Vijay Sharma told him that same would be executed by the accused Jagbir. Thereafter, accused got prepared the relevant documents and handed over the same to him. Those documents were executed by the accused in favour of his mother Smt Fizan. The documents were executed with regard to property of the area measuring around 33 Sq. yards. After having purchased the said property, they started to reside there. They continued to work under the accused and they again purchased a land measuring around 66 Sq. Yards from the accused, who did not give him wages and in lieu of those wages, he purchased the land from the accused. He further deposed that, a factory of steel polish was installed by them on the property (66 Sq. Yards).
He further stated, that Smt. Vijay Sharma visited the said plot and raised objection with regard to installation of factory and threatened him to close the said factory through police officials. By that time, some dispute had arisen in between the accused and Smt. Vijay Sharma and therefore she was enraged on seeing him at the factory. After about one week, some of the associates of Smt Vijay Sharma, who also used to visit the plot alongwith Smt. Vijay Sharma, came there and threatened his mother "BUDHIYA TU YAHA SE JATI KYU NAHI OR JO 33 GAJ KI JAGAH DI HI USI PER REH". Thereafter, they again came on the said plot and again threatened his mother to leave the said plot. Ultimately, his mother lodged the case against Smt. Vijay Sharma and thereafter, no one from the side of Smt. Vijay Sharma came to threat us. Thereafter, he again purchased another plot of land admeasuring of 262 Sq. Yards at village Kadipur from the accused and in this regard, the relevant documents were executed i.e. GPA, Agreement to sell, Receipt, Affidavit, Deed of Will, Possession Letter vide GPA, Agreement to sell, possession letter running from Ex.PW 6/A to Ex.PW6/C, bearing his thumb FIR No.166/08 State Vs. Jagbir Singh 12/38 impression at point A. He handed over those relevant documents to IO of the case Vide Ex.PW6/D, bearing his signatures at point A. His mother sold the property (33 Sq. Yards) to Smt. Babita and in this regard the relevant documents were executed and the same signed by him as witness to Ex.PW6/E, bearing his thumb impression at point A. He came to know through police, that the documents on the basis of which the properties were sold to him and to his mother were forged one's.
This witness was also cross examined by Ld. Defence Counsel.
11. PW7 is ASI Amrik Singh, No. 1038 Sb, Police Bhawan, Asaf Ali Road, New Delhi. He stated that on 20.07.2008, he was posted at PS Swaroop Nagar as DO from 4.00 pm to midnight. On that day, SHO endorsed a written complaint and on the basis of that complaint, he registered the present case vide EX. PW7/A, bearing his signature at point 'A'. He also made endorsement on the said complaint vide Ex. PW7/B, which bears his signature at point 'A. The copy of the FIR was handed over to Inspector Rakesh Chand.
This witness was also cross examined by Ld. Defence Counsel.
12. PW8 is Jitender Kumar, S/o Sh. Om Prakash. He stated that on 28.09.2007, he purchased a plot about 33 Sq. Yards at village Kadi Vihar from accused Jagbir and in this regard, he paid Rs. 30,000/- as bayana to Smt. Vijay Sharma and for the remaining amount i.e. Rs. 1,60,000/-. He asked him that same would be paid by him in installments and the same was to be paid to Smt. Vijay Sharma. The accused allowed him to construct a Jhopdi. He constructed a jhopdi there in the presence of Smt. Vijay Sharma and accused Jagbir. Thereafter, when he went on the said plot, he found that his jhopdi was already gutted down by the goons of Smt Vijay Sharma. He asked the reason from Smt. Vijay Sharma for demolishing his FIR No.166/08 State Vs. Jagbir Singh 13/38 jhopdi, on which she replied that "JAGBIR KE SAATH HAMARI LADAI HO GAYI HAI OR KOI JAMIN VAMIN NAHI HAI". He purchased the above mentioned property in the presence of Smt Vijay Sharma. Smt Vijay Sharma had told him that the abovementioned property belonged to her. The relevant documents were executed in favour of him and in favour of his brother Chander Veer by accused Jagbir vide photocopies of relevant documents Ex.PW8/A, which runs into 12 pages and which bears his signatures at point A. He handed over those relevant documents to police, who seized the same vide seizure memo Ex.PW8/B, which bears his signature at point A. This witnes was cross examined by Ld. APP for the State. He denied that Smt Vijay Sharma was not present with accused Jagbir at the time when he purchased the abovementioned property. He further denied that he did not hand over the money to Smt. Vijay Sharma but to accused Jagbir. He further denied that only Jagbir claimed his right on the disputed property.
This witness was also cross examined by Ld. Defence Counsel.
13. PW9 is Deven Sharma, S/o Sh. Bal Kishan Sharma. He stated, that in the year 2006, his mother Smt Vijay Sharma purchased the property at Kadi Vihar, Nathu Pura, Burari from Parveen Jain and Surender Jain measuring about 40.000 Sq. Yards. Thereafter, an agreement to sell was executed between his mother and accused Jagbir Singh with regard to that property. His mother assured the accused to give him the physical possession over the property after some time as his marriage had to be performed during that period. Once a call from PS was received by his mother regarding the quarrel over the property and thereafter, his mother came to know that the accused started to further sell out the above mentioned property to different person. However, by that time, as per the agreement to sell the FIR No.166/08 State Vs. Jagbir Singh 14/38 terms and conditions were not fulfilled due to his marriage and without fulfilling those terms and conditions the accused started to sell those properties. His mother asked the accused not to sell the property to other persons. Thereafter, in the year 2008, he alongwith his mother went to the above mentioned property, where they were surrounded by many persons including the accused, Brijesh, Smt Gaytri Devi and other persons who were known to him by face. The accused and other persons threatened him and his mother to leave the property otherwise they would have to face dire consequences. His mother made a call to police then and there and the police officials reached there and advised them to leave the spot otherwise something untoward would happen. On the advise of police officials, they left the spot. After some time, the accused alongwith two/ three other persons came at the office of his mother and there also they threatened him and his mother not to go to above mentioned property otherwise dire consequences would have to be faced.
He further stated that accused did not follow the terms and condition of the agreement, therefore, his mother cancelled the agreement to sell and despite the cancellation of that agreement the accused continued to sell the property to different persons. When the transaction took place between his mother and Surender and Parveen, it was clear that the property had already been sold by Jain brothers and the remaining 40,000 Sq Yards (unsold property) was sold to his mother out of the khasra which was related to Jain Brothers.
This witness was also cross examined by Ld. Defence Counsel.
14. PW-10 is Fahzan, W/o Late Sh. Ashraf Ali. She stated that she is an illiterate lady and did not remember the year when she purchased the land measuring about 33 Sq Yards at Kadi Vihar from accused Jagbir Singh. However, no money transaction took place at that time. The accused got prepared the relevant FIR No.166/08 State Vs. Jagbir Singh 15/38 documents with regard to transaction vide GPA Ex.PW10/A, Sale Agreement Ex PW10/B, Possession letter Ex PW 10/C, which bears her thumb impression at point A. A quarrel took place between her and Smt Vijay Sharma on the point of property and she and her other family members were languished in the jail. She further sold the abovementioned property to Smt Babita vide GPA already Ex.PW6/E, which bears her thumb impression at point B, agreement to sale, affidavit, receipt, possession letter, Deed of will all running in Ex.PW10/D1 to D5, which bears her thumb impression at point A. Out of the sale proceeds and with the assistance of her children, she further purchased property measuring about 66 Sq yards at Kadi Vihar from the accused. My son Dilshad also purchased the property about 262 Sq yards from the accused at Village kadi Vihar. She had no knowledge that accused was not the owner of the above mentioned properties and according to her knowledge, accused was rightful owner of the above mentioned properties. She did not tell to the police that accused was not the owner of the property or that she was duped by the accused.
This witness was cross examined by Ld. APP for the State as she resiled from her earlier statements.
This witness was also cross examined by Ld. Defence Counsel.
15. PW11 is Surender Kumar Jain, S/o Late Sh. Niranjan Lal Jain. He stated, that he had business of Dry fruits at Khari Bawali. In the year 1988/89, he had 51284 square yards land in village Khadi Pur but he did not remember the khasra number but he had told the same to the IO at the time of his statement. Out of aforesaid land, he had sold approximately 25082 square yards to different persons at different times. Detail list regarding the sold land which was approximately 26202 square yards was provided by him to the IO and same was seized by him FIR No.166/08 State Vs. Jagbir Singh 16/38 vide memo ExPW11/A, bearing his signature at point A. Copy of the detail is ExPW11/B, bearing his signature at point A, B and C. He had done GPA, agreement to sell, regarding the aforesaid unsold land in favour of complainant Smt. Vijay Sharma and no one else. He further stated that aforesaid land was not sold by him to any one else.
This witness was also not cross examined by Ld. Defence Counsel.
16. PW-12 is Satpal Yadav, S/o Sh. Dheer Singh Yadav. He stated, that he is in the business of property dealer at Libas Pur in the name of JBB properties since 1999. Smt. Vijay Sharma was willing to sell some land which was in rakba of village Khadi Pur and she got it noted with him for the purpose of selling the same. He had informed two dealers about the same land. There was one dealer namely Kuldeep Tokas who told him, that one party is willing to purchase land and asked him to organize the meeting. He organized the meeting between Vijay Sharma and accused Jagbir Singh . They entered into an agreement in which rate of Rs.800/- per square yards was finalized and period of 9 months was fixed for selling out the property. Rs. 8,00,000 was given as earnest money and accused Jagbir Singh was also authorized to enter into an agreement to sell with any other person and it was fixed that on the final payment, property will be sold to that person by complainant Smt. Vijay Sharma and possession of property will be given to him. He signed the aforesaid agreement as witness and Kuldeep Tokas signed the same as witness. IO had shown copy of the aforesaid agreement on which Kuldeep Tokas signed as witnesses and copy of the aforesaid agreement is mark PW-12/A, bearing his signature at point A. Copy of receipt is mark PW12/B, bearing his signature at point A. When accused Jagbir tried to sell out the property he had some dispute with some other party. He asked complainant about the aforesaid dispute and she FIR No.166/08 State Vs. Jagbir Singh 17/38 said that she will try to sort it out. He did not get his commission i.e. 1 % of the sale amount as the matter become disputed. IO recorded his statement to this effect.
This witness was not also cross examined by Ld. Defence Counsel.
17. PW-13 is Sh S.N Tripathi, S/o Late Sh Ram Singar Tripathi. He is practicing as an advocate from last 24 years and is also a licensed notary public, license being issued from DC office vide reregistration no. 89/97/99 and the same was approved by the Govt of NCT of Delhi. In the year 2007, he used to run his office from the seat No. 8 Kashmere Gate, Sub Registrar office, Delhi. On 16.02.2010, SI from DIU New Delhi office approached him and he had shown him some documents executed by Jagbir Singh, S/o Shiv Sharan Singh, R/o E711 Lane no. Nathu Pura, Nathu Colony in favour of Smt Babita Devi, W/o Dinesh, R/o A-5/93, Bhalswa Puranwas Colony Delhi with respect to the sale of the property out of Khasra no. 1059 and 1060 Gali no.9/10 Block C. Kadi Vihar Delhi admeasuring 100 square yards and the same was attested on 28,09.2007, which is Ex.PW13/A (running in 3 pages), bearing his stamp and signature at point A. Witness correctly identified the photocopies of agreement to sell of above said property, sale deed, possession letter, deed, PF, will which are ExPW13/B to ExPW13/J, running in 8 pages all pages, bearing his stamp and all bearing his signatures at point A. Sl had shown him another set of document executed by Jagbir Singh in favour of Jitender and Chander Vir Singh, both S/o Om Praksh Singh. R/o Gali no.05 Swaroop Vihar, Delhi with respect to the sale of the property out of Khasra no 1060 Gali no 10 C Block Kadi Vihar Delhi, admeasuring 33 square yards. Witness correctly identified the photocopies of agreement to sell of above said property, sale deed, possession letter, deed, PF, Will which are Ex.PWS/A, running in 12 pages and all pages FIR No.166/08 State Vs. Jagbir Singh 18/38 bearing his stamp and his signatures at point B. SI had shown him another set of documents executed by Jagbir Singh in favour of Smt Faizana, W/o Late Mohd Ashraf Ali, R/o village Nityaanad Puri, District Merrut, UP with respect to the sale of property admeasuring 33 square yards out of Khasra no. 1060 Gali no.ll. C- Block Kadi Vihar, Delhi dated 28.09.2007. SI had Shown him another set of documents executed by Jagbir Singh in favour of Dilshad, S/o Mohd Ashraf Ali, R/o village Nityaanad Puri, District Merrut. UP with respect to the sale of property admeasuring 33 square yards out of Khasra no.262 Gali no.10. C-Block Kadi Vihar, Delhi dated 31.05.2009. Witness correctly identified the agreement to sell of the above said property and its sale deed, possession letter, deed of will which are Ex.PW13/K to Ex.PWI3/R running in 7 pages and all pages, bearing his stamp and his signatures at point A. This witness was cross examined by Ld. Defence Counsel.
18. PW14 is Ct Lokender, No. 7541, DAP, third Battalion. He stated that on 13.09.2008, he was investigated with the Inspector Rakesh Chand, PS Swaroop Nagar. During the investigation complainant Smt. Vijay Sharma came in the police station and produced and handed over the relevant paper before the Inspector Rakesh Chand and the same was seized vide seizure memo already exhibited as Ex.PWI/E, bearing his signature at point B. Thereafter, IO annexed all the documents in the file.
This witness was cross examined by Ld. Defence Counsel.
19. PW-15 is Shree Bhagwan, Kanoongo, SDM Alipur, Delhi. He stated that as per the Khatoni records, produced from the SDM Alipur Office pertaining to the year 2003 till present, it is clear that the Khasra No. 1054, 1062, 1052 and 1057 FIR No.166/08 State Vs. Jagbir Singh 19/38 were vested in Gram Sabha as per Section 81 DLR Act. The copy of the relevant Khatoni is Ex.PW-15/A (OSR). The present record that he has brought does not bear any date of said vesting.
This witness was not cross examined by Ld. Defence Counsel.
20. PW-16 is Sh. Amit Gupta, Date Entry Operator, from the office Sub Registrar-1, Kashmiri Gate, Delhi. He brought the original record from Sub Registrar Office Kashmiri Gate regarding the will executed by Jagbir Singh in favour of Parma Sharanpal vide registration no. 6467 in book no. 3, Volume no. 701 dated 13.07.2007, pages 15 to 16. The said will is Ex.PW-16/A. This witness was not cross examined by Ld. Defence Counsel.
21. PW-17 is V. Ramesh No. 570/NW, posted at CBI on Deputation. He stated that on 18.01.2010, he was posted at DIU, North-West Delhi. On that day, he along with IO visited the concerned court and by the permission of concerned court, IO took the specimen signature of accused Jagbir Singh on 4 pages which are Ex.PW- I7/A (colly running in 4 pages), bearing his Signatures from point A to D. IO recorded his statement to this regard.
This witness was cross examined by Ld. Defence Counsel.
22. PW-18 is Retd Inspector Rakesh Chander S/o Lt Kailash Chander R/o D-34, West Moti Nagar, Delhi. He stated that on 20.08.2008, he was posted at PS Swaroop Nagar as Inspector. On that day, present case was marked to him for investigation. After registration of FIR, he issued notice to the complainant Ms Vijay Sharma and collected the relevant documents related to the ownership of the alleged property i.e from point 1 to point 14 vide seizure memo already exhibited FIR No.166/08 State Vs. Jagbir Singh 20/38 as Ex.PWI/E. He had signed upon the documents, however the same were not visible as page is damaged. He further stated that on 14.11.2008, vide the order of competent authority file was transferred to the DIU North-West. He recorded the supplementary statement of complainant and another public witnesses.
This witness was not cross examined by Ld. Defence Counsel.
23. PW-19 is Sh Sashikant Tehsildar, Narela. He stated that he had been posted as tehsildaar at Narela since 08.06.2016. As per his knowledge after division of revenue area the Alipur sub- division was created in the year 2012 from Narela. The area of Swaroop Nagar falls in sub-division of Alipur.
This witness was not cross examined by Ld. Defence Counsel.
24. PW-20 is ACP Lakshmi Dubey, JSC, Department of Women and Child Development, Seva Kutir, Kingsway Camp, GNCT, Delhi. She stated, that on 03.06.2010, she was posted as Inspector DIU, Sector-11, Rohini. On that day further investigation of this case was entrusted to her by ACP DIU. She had gone through the file and examined the complainant and recorded his supplementary statement. She also recorded the statement of PW Deven Sharma. After completion of investigation, the charge sheet was prepared by her and filed in the court through concerned SHO. She further stated, that on 17.10.2011, she collected the FSL result in this case and filed it in the court through supplementary charge sheet.
This witness was cross examined by Ld. Defence Counsel.
25. PW-21 is ASI Narender No. 319/ North-West, Prosecution Branch, Patiala House Courts, Delhi. He stated, that on 20.05.2009, he was posted at DIU North West. On that day, he joined the investigation with IO. On that day, the accused FIR No.166/08 State Vs. Jagbir Singh 21/38 was in J/C in other case and IO had formally arrested him in the present case vide arrest memo Ex. PW21/A, bearing his name at point A. IO prepared the personal search memo Ex. PW21/B, bearing his signatures at point A and IO recorded the disclosure statement of accused Ex. PW21/B-1, bearing his signatures at point A. He further stated, that on 11.06.2009, IO seized the photocopy of the documents from Babita and Jitender vide seizure memos Ex. PW21/C and Ex. PW8/B, bearing his signatures at point B. IO recorded his statement.
This witness was cross examined by Ld. Defence Counsel.
26. PW-22 is Retd. SI Jaivir Singh S/o Sh. Bharat Singh R/o village Kakor Kalan, District Bhagpat, U.P. He stated, that on 01.01.2009, he was posted at DIU North West. On that day, further investigation of the case was marked to him. During investigation, he had collected the photocopy of documents from the complainant Smt. Vijay Sharma at DIU and seized the same vide memo Ex. PW22/A, bearing his signatures at point A and already exhibited as Ex. PWI/F, bearing his signatures at point B. He collected the report from the concerned Tehsildar Alipur regarding the alleged property which was presented by him on his notice. The said documents are at Khatoni in three pages along with covering letter which are Mark PW22/1 (colly). He also collected the report from the office of DDO North-West which was produced by him on his notice i.e. Nakal Khatoni consolidation having Hard Bast No. 25, Tehsil Narela (6 pages) and one Nakal Khatoni along with the covering letter which is Mark PW22/2 (colly). He further stated that on 20.05.2009, he had formally arrested the accused in the present case, vide arrest memo already exhibited as Ex. PW21/A, bearing his signature at point B. He prepared the personal search memo already Ex. PW21/B, bearing his Signatures at point B and he recorded the disclosure statement of accused already FIR No.166/08 State Vs. Jagbir Singh 22/38 exhibited as Ex. PW21/B-I, bearing his signatures at point B. He further stated that on 11.06.2009, he had seized the photocopy of the documents from Babita and Jitender, vide seizure memos already exhibited as Ex.PW21/C and Ex.PW8/B respectively, bearing his signatures at point C. He took the specimen signatures of the accused Jagbir after taking permission from the concerned court. PW Dilshad had produced the original documents executed by accused Jagbir and the same were seized vide memo already Ex. PW6/D, bearing his signatures at point B. He had also seized the documents which were produced by the PW Pradeep Pal, vide seizure memo Ex. PW22/B, bearing his signatures at point A. He had called the Girdawar and Patwari regarding the demarcation of the disputed land and on the basis of their demarcation, he had prepared the sketch of pointing out of the disputed land which is Ex.PW22/C, bearing his signature at point A. He had collected the report regarding the demarcation of disputed land from the office of SDM. He further stated that he had collected the report regarding the demarcation of the disputed land from the office of SDM concerned vide his request letter Mark J-1, bearing his signature at point A. He had collected the photocopy of demarcation report from the concerned SDM office, which is Mark J-2, bearing his signature at point A and Mark J-3. He had seized the documents produced by Praveen Kumar Jain vide seizure memo already exhibited as Ex. PW5/D, bearing his signature at point B. The documents are already exhibited as Ex. PW5/C. He had seized the documents produced by Surender Kumar Jain vide seizure memo already exhibited as Ex. PWI1/A, bearing his signature at point B and documents Ex. PW11 /B. He had sent the documents for expert opinion to the FSL, Rohini. He had verified the documents related to the land bearing Khasra No. 1059, village Kadipur, out of which 916 sq. yards land was conveyed in favour of Parmasaran Pal by accused Jagbir Singh vide registered Will Deed which is already exhibited FIR No.166/08 State Vs. Jagbir Singh 23/38 as Ex. PWI6/A. After that he was transferred from the DIU to Training Branch, N/W and he thereby handed over the case file alongwith all the documents to Reader/ACP DIU.
This witness was cross examined by Ld. Defence Counsel.
27. PW-23 is ASI Birender Singh, No. 4343-D, GNCT Security. He stated that on 15.03.2010, he was posted at DIU North West as HC. On that day, he joined the investigation in the present case with IO SI Jaivir Singh. During investigation, Praveen Kumar Jain S/o Niranjan Lal Jain handed over the documents pertaining to property in question and IO seized the same vide memo already Ex.PW5/D, bearing his signature at point C. Documents are already Ex.PW5/C. IO recorded his statement.
He further stated that on 30.03.2010, he again joined the investigation of this case with SI Jaivir Singh. During investigation, Surender Kumar Jain S/o Niranjan Lal Jain handed over the documents pertaining to property in question and IO seized the same vide memo already Ex.PW11/A, bearing his signature at point C. Documents are already Ex.PW11/B. IO recorded his statement.
This witness was not cross examined by Ld. Defence Counsel.
28. Thereafter, prosecution evidence was closed vide order dated 19.09.2019.
Statement under section 313 Cr.PC
29. Subsequently, statement of the accused under Section 313 r/w 281 Cr.P.C. was recorded on 17.12.2019, wherein accused stated that he has been falsely FIR No.166/08 State Vs. Jagbir Singh 24/38 implicated in the present case. Accused stated that he wants to lead defence evidence but despite giving opportunity to the accused, accused did not lead DE, therefore, DE stands closed by the court order on 08.01.2019.
30. Thereafter, the matter was fixed for final arguments. Accordingly, final arguments were advanced at length by both the parties. I have heard the final arguments and have given my careful and thoughtful consideration to the plethora of evidence on record.
REASONS
31. In the backdrop of the facts as above and before delving into the merits of the present case it becomes germane to canvass the ingredients obligatory to bring home the guilt u/s 420 IPC for which the accused has been charged in the present case along with the offences of forgery.
32. It is non elective to state that in order to make out an offence under this section, it is incumbent to establish the intent at the time of the alleged bargain. In order to bring the case within the offence of cheating, it is imperative to prove that at the time, the accused made the representation, he knew that it was false and it was made in order to deceive the person paying the money. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is peremptory to show that a person had a fraudulent intention at the time of making the promise to say that he committed an act of cheating (S.N.Palanitkar Vs. State of Bihar, 2001 CLJ, 4765 (SC) ).
FIR No.166/08 State Vs. Jagbir Singh 25/38
33. The essential ingredients to attract section 420 IPC are
(i). Cheating;
(ii) Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed is capable of being converted into a valuable security and
(iii) Mens Rea of the accused at the time of making the inducement. For a person to be convicted u/s 420 IPC, it has to be established not only that he had cheated someone but also that by doing so he has dishonestly induced the person cheated to deliver any property etc.
34. A person can be set to have done an act dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to a person means a gain to him by unlawful means of a property to which the person gaining is not legally entitled.
35. Therefore, in the light of the brief backdrop of the ingredients of offence u/s 420 IPC required to be fulfilled by the prosecution to establish the guilt of the accused in the present case, it becomes luminary to anatomize the testimony of the prosecution witnesses examined in the present case. The most tectonic witness examined by the prosecution in the present case is PW1 Smt. Vijay Sharma i.e. the complainant herself.
36 Now it is the case of prosecution that Smt. Vijay Sharma was interested in selling her property, pursuant to which she received Rs. 8 lacs on various occasions FIR No.166/08 State Vs. Jagbir Singh 26/38 from the accused and an agreement to sell dated 20.12.2006 Ex. PW1/A was executed between the complainant and the accused. The most pivotal allegation levelled by PW1, is that the accused was found involved in some incident of firing in the adjacent properties and therefore the complainant decided to cancel the aforesaid agreement to sell but the accused started threatening her and also filed a civil suit with regard to the property against the complainant. Hence, the complainant has alleged cheating upon the accused and further deposed that accused had started to sell the property to some other persons. Now a careful probe and sifting of the testimony of this witness shows that it is not a case where the accused did not pay any amount towards the transfer of property in question and it is an admitted fact in the case that the complainant had duly received an amount of Rs. 8 lacs towards part consideration of the deal. Even a careful perusal of the document Ex. PW1/A i.e. the copy of agreement to sell executed between the complainant and the accused reveals that the complainant was duty bound to execute the sale documents in respect of the properties mentioned in the said document, in favour of the accused on or before 30.09.2007 and it where gives the unfettered right to the complainant to cancel the said agreement merely on the apprehension or the knowledge that the accused was booked in some case of firing in taking illegal possession of the property. There is no such clause mentioned in the agreement to sell dated 20.12.2006 from which any such right of the complainant (First party in the said agreement to sell) to cancel the said agreement can be inferred. The only liability of the second party i.e. the accused was to pay the balance amount on or before the date of final bargain i.e. 30.09.2007. Hence, the very reason given by the complainant for cancellation of the agreement to sell appears to be baseless and merit-less. Even the allegation levelled by the complainant that the accused was found involved in some case of firing or taking FIR No.166/08 State Vs. Jagbir Singh 27/38 illegal possession of the property also has remained vague and unsubstantiated as no documentary or specific ocular evidence has been lead to prove any such kind of case of the accused.
37. Another crucial averment made by the complainant has been that the accused started selling the property to other innocent persons. In this regard, the agreement to sell Ex. PW1/A, can again be referred and Para 7 of the said document speaks clearly that the complainant (First party) shall have no objection/rights if the accused (Second party) sells the property to anybody and receives the advance money etc. Along with this averment, complainant further deposed that she had already executed another document in respect of the cancellation of the agreement to sell which is Ex. PW1/B, vide which, she cancelled the agreement to sell dated 20.12.2006 executed between the complainant and the accused. But this document per-se appears to be invalid as admittedly by the complainant, it does not bear the signature of the second party i.e. the accused and therefore the very document of the cancellation of agreement to sell appears to unilaterally executed by the complainant without having any consent of the other party.
38. Moreover, again a careful perusal of the said document Ex. PW1/B shows that it mentions about the violation of the terms and conditions of Para no. 2 and 3 of the agreement to sell dated 20.12.2006 and therefore it becomes indispensable to read Para 2 and 3 of the agreement to sell dated 20.12.2006, which merely mentions that the first party shall hand over the possession of the property at the time of registration of sale document and the completion of bargain was fixed up to 30.09.2007. As far as the date of final bargain is concerned, there appears to be no violation on the part of accused because he had already paid an amount of Rs. 8 FIR No.166/08 State Vs. Jagbir Singh 28/38 lacs to the complainant and it is not a case where the accused had refused to make the remaining payment and there was ample time left for the accused to make the remaining payment when the said document for cancellation of agreement to sell was prepared by the complainant because it was executed by the complainant on 06.04.2007 whereas the accused had time for making the payment till 30.09.2007.
39. Moreover, the complainant has nowhere deposed specifically in her evidence before the court that the accused had ever tried to forcefully enter the property sold by her to the accused as no such incident of taking illegal possession of the property sold by the complainant has been mentioned by PW1 in her testimony. PW1 only says that she got some information about the accused being involved in some case of firing and taking illegal possession of the property, already sold by Jain Brothers. So first of all, it is not a case where the property belonging to the complainant was forcefully taken over by the accused which could give a reason to the complainant to cancel the agreement to sell and even it has nowhere been deposed by Jain Brothers i.e. PW5 Mr. Parveen Kumar Jain and PW11 Mr. Surender Kumar Jain that the accused had forcefully taken the illegal possession of their property at any point of time. Both these witnesses have only deposed regarding the execution of the document in favour of the complainant and nothing else.
40. One of the most vital documents forming the very nucleus of the entire chain of title documents adduced by the prosecution is the title document executed in favour of the complainant herself in respect of the property in question i.e. the documents of purchase of property measuring about Rs. 40,000/- square per yard from Sh. Surender Kumar Jain and Sh. Parveen Kumar Jain at Kadi Vihar, Delhi. The relevant GPA executed by Sh. Surender Kumar Jain in favour of the FIR No.166/08 State Vs. Jagbir Singh 29/38 complainant is Ex. P1 and another GPA executed by Sh. Parveen Kumar Jain dated 15.11.2006 in favour of the complainant is Ex. PW5/B and another document i.e. the agreement to sell dated 08.11.2006 executed by Jain Brothers in favour of the complainant pertaining to the land situated in various Khasras at Kadi Vihar, Narela, Delhi is Ex. PW5/A. Now it becomes inevitable to carefully perlustrate and go through the contents of these documents because these are the documents through which complainant Smt. Vijay Sharma became the owner of the property in question and obtained a legal right to transfer the property to some other persons and particularly to the accused in present case. It is note worthy that the said agreement to sell Ex. PW5/A, appears to be quite ambiguous and vague in the sense that first of all, it does not speak of any particular timeline or date or the period by which Smt. Vijay Sharma was bound to make the entire payment in respect of the properties/lands mentioned in the said documents. In fact, Para 6 of the said document only mentions that the first party will be bound to execute the necessary documents of the transfer of the said land in favour of the person, as the second party may introduce from time to time either in favour of the second party. First of all, the language of this clause appears to be quite baffling and vague and neither this document mentions anything received in advance as earnest money from the complainant nor it mentions about particular time period by which the necessary title documents shall be executed. Moving further, this document again appears to be hazy and imprecise as the last Para of the same mentions that the first party has already sold some part of the land in the Khasra nos. mentioned in this agreement and that the first party will sell the remaining portion of the land of the said Khasra nos. only. Meaning thereby that neither it is clear from this agreement as to which of the lands were already sold off by Sh. Parveen Kumar Jain and Sh.
FIR No.166/08 State Vs. Jagbir Singh 30/38 Surender Kumar Jain to other persons and if they were already sold off, then what was the need to mention those lands in the aforesaid agreement to sell?
41. Moreover, this agreement to sell does not bear the signature of the second party i.e. the complainant Smt. Vijay Sharma which again makes this document dubious and unclear. Along with this agreement to sell, there are two separate general power of attorneys which are Ex. P1 and Ex. PW5/B, which have been executed by Sh. Surender Kumar Jain and Mr. Parveen Kumar Jain separately in favour of the complainant. Now again a comprehensive reading of both these documents reveal that the properties mentioned in the same have been stated to be vested with the Gram Sabha and both these documents contained a clause in Para 3 that Smt. Vijay Sharma was authorized to get the plot/ property released from the Gram Sabha in her name under her own signatures but there is no evidence to prove this aspect that the complainant had taken all the necessary steps to get the property/plots released and mutated in her own name, meaning thereby, that the title of the complainant herself was not clear and legally valid in respect of the plots in question and therefore her authority and competence to further execute the title documents in favour of any third person, be it the accused, comes under scanner per-se. Further startling feature of both of the aforesaid GPA's is that Para 22 of both of them stipulates that the holder of this general attorney shall not be entitled/empowered and authorized to dispose off/ transfer, alienate or part with the possession of the plots/property to any third person, wholly or partly by way of execution of any transfer deed such as agreement to sell, will, sale deed etc and it further mandates that Smt. Vijay Sharma shall only be entitled to manage, control, look after and supervise the plots/properties mentioned for and on behalf of the executant only. Hence, the said clause clearly puts a question mark on the capacity FIR No.166/08 State Vs. Jagbir Singh 31/38 of the complainant herself to execute the agreement to sell in favour of the accused and hence the document Ex. PW1/A comes under scanner per-se as far as its validity is concerned. This observation reflects that the complainant herself did not approach the court with clean hands and to be able to allege cheating and forgery upon the accused, it was incumbent upon the prosecution, more particularly the complainant to first of all prove her authority and legal competence as far as her ownership and title over the plots in question is concerned and then only she could have alleged dishonest inducement from the accused to deliver the property to him.
42. Another pivotal averment forming the crux of the allegations of cheating and forgery levelled upon the accused is that the accused started selling the property to some other persons as mentioned by PW1 during her examination in chief. In this regard, attention can be drawn to the testimonies of the other public witnesses examined by the prosecution. PW2 specifically deposed, that it was in the presence of the complainant herself that he had handed over the Bayana to third person i.e. Sh. Narender Bhati in respect of purchase of some property at Kadi Vihar and he deposed that it was the complainant herself who told him that she had already sold the said property in Khasra No. 1059, meaning thereby that this witness did not allege any kind of forgery/cheating upon the accused Jagbir Singh and in fact this witness kept on stating that Smt. Vijay Sharma had given the right/authority to sell the land in question to accused Jagbir. Similar is the case with another public witness i.e. PW3 Smt. Babita who denied specifically that the accused cheated her and in fact she also deposed during her cross examination that the complainant received the consideration amount of Rs. 4 Lacs from her and the title document Ex.PW3/A was executed by the accused on 28.09.2007 as per the instructions and in the presence of Smt. Vijay Sharma herself and it was the complainant only who FIR No.166/08 State Vs. Jagbir Singh 32/38 assured that she had sold the land to the accused. This witness on the contrary, levelled allegation of cheating on the complainant herself and that she was dispossessed from the plot by Smt. Vijay Sharma with the help of goons.
43. PW4 Smt. Krishna also levelled allegations upon Smt. Vijay Sharma and this witness also turned hostile and did not support the allegations levelled by the prosecution upon the accused. This witness also stated that the entire deal of the purchase of the plot was made in presence of Smt. Vijay Sharma only. Moving further, PW6 Dilshad also reiterated the versions of the other public witnesses that the entire deal of the execution of documents by the accused was made in the presence of the complainant only and it was the complainant who told him that the title documents will be executed by the accused Jagbir and not by her. This witness also did not support the case of prosecution, as far as the allegations of cheating/forgery levelled upon the accused are concerned.
44. PW8 Jitender Kumar also deposed about the making of the payment to the complainant in respect of the purchase of the property and again deposed about the presence of the complainant, when the deal of purchase of the property was made. This witness specifically deposed about the handing over the money in the hands of the complainant and further stated that on the assurance of Smt. Vijay Sharma only, he purchased the property and further stated that the Jhopdi was demolished at the instance of Smt. Vijay Sharma. This witness denied that the accused had cheated him in any manner. Similar observations can be derived from the deposition of PW10, who also deposed that it was the complainant who used to harass her and denied that she has been duped by the accused. Hence, taking into account the summative effect of the depositions made by the aforementioned public witnesses, it is pellucid that none of them have supported the case of FIR No.166/08 State Vs. Jagbir Singh 33/38 prosecution that the accused had cheated them and in fact all of them have consistently stated that it was the complainant, who assured them that the accused is rightful owner of the respective plots and that the respective deals of purchase of property/properties were made in the complainant herself, meaning thereby that the complainant had tried to suppress and conceal true facts and has not approached the court with clean hands.
45. Therefore, it can easily be culled out from the aforesaid discussion that neither the element of dishonest intention of the accused right from the inception can be inferred or could be proved by the prosecution nor it can be said that the accused dishonestly induced the complainant to deliver the property because first of all, as already discussed above, the very authority and legal competence of the complainant to execute the title documents such as agreement to sell etc. in favour of the accused is hugely doubtful, secondly, the accused had already paid off substantial amount of Rs. 8 Lacs towards part consideration of purchase of property, thirdly, the document regarding cancellation of the agreement to sell does not bear the signatures of the accused making it an incomplete and unreliable document and fourthly, all the aforesaid public witnesses examined by the prosecution have denied about any cheating being committed with them by the accused and in fact, they levelled allegations of harassment and cheating upon the complainant Smt. Vijay Sharma, turning the story of the prosecution upside down.
The charges in the present case framed upon the accused include the charges of forgery as well apart from the charges for the offence of cheating. In this regard, I would first like to place reliance upon Md. Ibrahim and Others vs. State of Bihar and others (Criminal appeal no. 1659 of 2009, Supreme Court) wherein it was mentioned that analysis of section 464 of Indian Penal Code defines the FIR No.166/08 State Vs. Jagbir Singh 34/38 making of a false document and it divides false documents in three categories and a person is said to have made a false document if:-
i. He made or executed a document claiming to be someone else or authorized by someone else, or ii. He altered or tampered document, or iii. He obtained a document by practicing deception of from a person not in control of his senses.
46. Now applying the essential ingredients constituting the offence of forgery to the evidence and the documents adduced in present case, firstly, it is not a case where accused Jagbir Singh has forged the signature of somebody else and in fact complainant Smt. Vijay Sharma has also not disputed the execution of title documents by her in favour of the accused and moreover all the other purchasers of the property in question also did not allege the forgery of signatures of somebody else by the accused. Neither, there is any document on record which could be said to have been altered or tampered by the accused by using some ink or fluid or over writing on any document, moreover as already discussed above, the complainant never denied the execution of property documents by her in favour of the accused, of her own free will and consent and it is a case only where the complainant later on desired to cancel the agreement to sell executed in favour of the accused on the basis of some information that the accused is involved in taking the illegal possession of the properties in the same area. Therefore, it cannot be said that the accused obtained any document from the complainant by practising deception or that he obtained any property document from the complainant when she was not in control of her senses. It becomes further pertinent to reiterate that the other public FIR No.166/08 State Vs. Jagbir Singh 35/38 witnesses as already discussed above, deposed that the transaction of sale and purchase of the property took place in the presence of and full knowledge of the complainant Smt. Vijay Sharma. Thus, it can easily be deciphered that there is no evidence whatsoever, to prove that the accused had forged any document, either by putting the signature of someone else or tampered any document or obtained any document by practicing deception on any person, more particularly, the complainant. Hence, there is no document brought on record by the prosecution which could be said to have been forged by the accused. It is also an admitted fact that some civil disputes with respect to the properties in question were pending in civil courts and it appears that by getting lodged the present FIR, the complainant has merely made an attempt to give criminal overtones to a civil dispute just to put, pressure upon the other party. In these circumstances, institution of criminal proceedings under section 420 and 467 IPC appears to be an abuse of the process of court. (Inder Mohan Goswami and another vs. State of Uttaranchal and others, AIR 2008 Supreme Court 251).
47. Hence, taking into account the consequential effect of the aforesaid encyclopaedic and extensive discussion, it can be safely deduced that the complainant has miserably failed in proving the element of dishonest inducement on the part of the accused which is the primary ingredient to constitute the offence of cheating and the complainant herself appears to have not approached the court with clean hands specially considering the depositions of other public witnessed/purchasers of the property who all have levelled allegation of cheating upon the complainant herself and prosecution has further deplorably failed in proving any kind of forgery committed by the accused.
FIR No.166/08 State Vs. Jagbir Singh 36/38
48. No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused beyond reasonable doubt.
49. At this stage, court further deems it fit to state that it is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case, it is pellucid that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
50. Therefore, in light of the above observations and finding, it can be safely culled out that case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
FIR No.166/08 State Vs. Jagbir Singh 37/38
51. Hence, in view of the aforesaid comprehensive discussion, it can be safely deducted that the prosecution has miserably failed to prove the charges levelled against the accused and therefore, accused Jagbir Singh is hereby acquitted from the offences u/s 120-B/420/467/468/471/ IPC.
Digitally signed by RICHARICHA SHARMA DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE DELHI, ou=DELHI DISTRICT SHARMA COURTS, postalCode=110085, st=DELHI, cn=RICHA SHARMA Date: 2020.07.10 17:06:45 +05'30' (Richa Sharma) MM-7/North District Rohini Courts/Delhi FIR No.166/08 State Vs. Jagbir Singh 38/38