Delhi District Court
State vs . Subhash Bata Etc. on 17 August, 2020
IN THE COURT OF SH. ATUL KRISHNA AGRAWAL,
ACMM (NORTHWEST) ROHINI COURTS, DELHI
FIR. No. : 233/1995
Case No. : 536982/2016
PS. : Shalimar Bagh
Offence Complained of : 420/468/471/120B/34 IPC
Date of commission of Offence : Unknown
JUDGMENT
STATE Vs. SUBHASH BATA Etc. Inspector Bhim Singh SHO of Babzi Mandi, Delhi .............................COMPLAINANT
1. Subhash Bata S/o Kasturi Lal R/o BF38, Janakpuri, New Delhi58
2. Kamal Kishore Vashishtha S/o Late Sh. Gyan Chand R/o Flat No. 76B, Block GG2, Vikaspuri, New Delhi18
3. A.K. Sharma S/o Sh. M.R. Sharma FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.1 of 23 Date of Decision:17.08.2020 R/o 539, 2nd Floor, Sector5, Vaishali, Ghaziabad, U. P. ...................ACCUSED PERSONS Date of Institution : 20.11.1997 Plea of the accused : Pleaded not guilty Date of reserving judgment/order : 27.07.2020 Date of pronouncement : 17.08.2020 Final order : Acquitted Brief reasons for the decision of the case:
1. In brief, the story of the prosecution is that in the year 1995, Insp. Bhim Singh, who was SHO of PS Subzi Mandi, was conducting investigation of case vide FIR No.81/95 PS Subzi Mandi and while conducting investigation, he came to know that after draw was conducted by DDA for allotment of flats and after completion of formalities, the possession letter of the flats were issued by DDA to the allottees. However, the possession of some flats were not taken over by the allottees, so the DDA used to cancel those flats in the second draw and those flats were reallotted on the revised rates. During the investigation of the said case, he verified documents with respect to the flats of which allotment was cancelled by DDA and found that those flats were again sold to other persons on the basis of fake documents.
2. In the present case, it was found that a flat bearing no. 62, Pkt A1, Sector 18, Rohini, New Delhi, was allotted to one Usha Rani, by DDA. She was asked to deposit a sum of Rs. 3,31,400/ in lumpsum but she was unable to FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.2 of 23 Date of Decision:17.08.2020 deposit the same. Accused Subhash Bata, who was partner in Super Property dealer, approached her and proposed to get the flat sold for her. Subhash Bata also got the documents for sale prepared and took signatures from Usha Rani on those documents and also deposited money in the name of Usha Rani. The documents were with respect to flat bearing no.100B, AD, Pitampura. It was found that the Possession letter in the name of Usha Rani of the above flat was forged and this was confirmed upon enquiry from the Director (Housing), DDA. Thereafter Insp. Bhim Singh prepared a rukka and sent it through a constable recommending the registration of FIR, to SHO PS Shalimar Bagh. Accordingly, the FIR of the present case was registered at PS Shalimar Bagh.
3. During investigation, it was revealed that accused A.K. Sharma, who was Assistant Director in DDA, had issued forged documents of flat no.100B, AD, Pitampura, regarding allotment in favour of Usha Rani, under his signatures, in connivance with coaccused Kamal Kishore Vashishtha (UDC), who was working as dealing clerk in DDA and Subhash Bata of Super Property Dealer. The flat was then sold to one Pratap Singh on the basis of those forged documents. All the above accused persons were arrested and after completion of investigation, Charge sheet was filed against all three accused persons for the offences punishable u/s 420/468/471/120B IPC on 20.11.1997 and cognizance of offences was also taken on the same.
4. Copy of charge sheet was supplied to all accused persons free of cost U/s 207 Cr.P.C.
5. Charge was framed against all three accused persons for offences punishable FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.3 of 23 Date of Decision:17.08.2020 u/s 420/468/471/120B/34 IPC on 01.02.2001 to which all of them pleaded not guilty and claimed trial.
6. During PE, 12 witnesses were examined on behalf of prosecution.
7. PW1 WSI Asha Devi (PS Kanjhawla) deposed that on 06.06.1995, she was posted as Duty Officer at PS Shalimar Bagh. On that day, she recorded present FIR No. 233/95, u/s 420/468/471 and 120B IPC. She further deposed that the FIR was in her handwriting. Carbon copy of the same is Ex. PW1/A. She made endorsement on the rukka which is Ex.PW1/B.
8. Witness SI Balwan Singh, Special Branch was examined as PW2. He deposed that on 13.12.1995, he was posted at Crime Branch at Forgery Section and he joined the investigation with Inspector Ram Kumar. On that day, specimen signatures of accused A.K. Sharma was obtained on four sheets which are Ex. PW2/A1 to A4. He further stated that accused had given specimen signature without any fear and pressure. He further stated that on 27.06.1996, he was investigating the case FIR no. 183/95, u/s 420/468/471 & 120B IPC of PS Sabzi Mandi and had arrested the accused Kamal Kishore in that case. Accused has been correctly identified by the witness i.e. PW2. It is further stated that he had recorded the disclosure statement of accused Kamal Kishore Ex. PW2/B. Accused had disclosed that he had prepared forged possession letter in connivance with accused A.K. Sharma, Asst. Director, DDA, regarding the plot No. 100B/AD, Pitampura. Further in case FIR No. 181/95, being IO of the case, he arrested accused A.K. Sharma and recorded his disclosure statement Ex. PW2/C. Accused A.K. Sharma was correctly identified by the witness. The witness further FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.4 of 23 Date of Decision:17.08.2020 deposed that accused A.K. Sharma had disclosed that he got prepared forged Possession letter regarding flat No. 100B/AD, Pitampura, in connivance with Kamal Kishore, UDC and other staff of the DDA. PW2 was not cross examined by the accused persons despite given opportunity.
9. Sh. Gajender Singh, J.E. from DDA, was examined as PW3. He deposed that on 20.11.1995, he was posted as JE, Sub Division no.3, DDA office, Ashok Vihar, Delhi. On that day, he produced original Possession letter of Flat No. 100B, First Floor, Block AD, Pitampura, with photo of Usha Rani. Possession letter is Ex. PW3/A. Original possession slip of flat no. 100B is Ex. PW3/B and it was seized through seizure memo Ex. PW3/C. Possession of the abovesaid flat was given to Usha Rani on the basis of possession letter Ex. PW3/A which was bearing signature of accused A.K. Sharma at point A (accused was correctly identified by the witness). As per the witness, the possession of the flat was given to Usha Rani believing that Possession letter and NOC letter were genuine and if they had the knowledge that abovesaid documents were forged, the abovesaid flat would not have been given to Usha Rani. PW3 was not crossexamined by accused persons despite given opportunity.
10. Witness Usha Rani was examined as PW4. She deposed that she had registered a MIG Flat in DDA in the year 1979 and she had deposited Rs. 4,500/ as registration fee through bank draft. After that a LIG plot was allotted to her at Vikas Puri and she requested the DDA to allot her an MIG flat. Upon her request, a MIG flat bearing no. 62 at Rohini was allotted to her and she was asked to deposit advance payment of Rs. 3,31,400/. She was unable to deposit the entire amount at once because she had applied for FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.5 of 23 Date of Decision:17.08.2020 installments scheme and then Subhash Bata contacted her for the sale of the above flat No. 62 of Rohini. She handed over all the original documents to him and he gave her an amount of Rs. 8,000/ and Subhash Bata took her to Vikaspuri, registration office and her signature were obtained on number of papers. She further deposed that she was not aware about the documents on which her signatures were obtained and her photograph was affixed. She further deposed that she also not aware about the fact that Subhash sold the said flat to anybody else on the basis of said documents. Accused Subhash was correctly identified by PW4. PW4 crossexamined by all three accused persons.
11. Witness Om Prakash Sharma was examined as PW5. Witness deposed that he was running a property dealer business under the style and sign of Prakash and Co. and Shri Pratap Singh Advocate had asked him for a DDA flat. As per the demand of Pratap Singh, he got introduced Pratap Singh Advocate with the partner of Super property dealer namely Subhash. In the meeting with Pratap Singh in his presence, Subhash disclosed that one flat no. 100B, Pkt. AD, Pitampura was ready for sale, for an amount of Rs. 3,50,000/. Pratap Singh made whole payment of the abovesaid amount by way of cheque as well as cash to Subhash. At the time of delivery of the possession of flat no. 100B to Pratap, property dealer Subhash and JE of DDA were also present. Subhash brought the POA and sale letter of the abovesaid flat from the office of Registrar and handed over to Pratap Singh Advocate and he took his commission for the sale of abovesaid flat from Pratap Singh. It was further stated by the witness that it was not in his knowledge that the allotment of flat no.100B was bogus and if he had any FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.6 of 23 Date of Decision:17.08.2020 such knowledge, he might not have arranged the deal of the flat. Witness had correctly identified accused Subhash in the court. He was also cross examined.
12. Inspector Bhim Singh, SIT Section, Crime Branch was examined as PW6.
He deposed that in the year 1995, he was posed at PS Subzi Mandi as SHO and the investigation of the case FIR No. 81/1995 was with him. During the investigation of case FIR No. 81/1995, it came to his notice that some property dealers in collusion with DDA staff, were selling flats of DDA on the basis of forged documents such as GPA etc. One such flat bearing no. 100B, AD Block, Pitampura, Delhi, was also sold by Super Property Dealer with the collusion of accused Kamal Kishore, on forged documents and the Possession letter and other documents were bearing the signature of accused A. K. Sharma, Asstt. Director (Housing) DDA. He further stated that the genuineness of flat no. 100B was verified from DDA and Dy. Director also vide his letter dated 25.05.1995 Ex.PW6/A, confirmed that the allotment of the flat no. 100B was not genuine and it was allotted on forged document. Accordingly, he sent a rukka Ex. PW6/B for the registration of the case to SHO, Pitampura. This witness was crossexamined on behalf of accused Kamal Kishore but not by other accused persons.
13. Witness Umed Singh, Superintendent, Asst. Director, Vigilance, Vikas Sadan, DDA, was examined as PW7. He deposed that from year 1995 to 1998, he was posted as Superintendent, Housing MIG, Vikas Sadan, DDA. Flat No. 100B was allotted to Usha Rani, as per Possession letter dated 21.12.1983 Ex. PW3/A, which was bearing the signatures of A. K. Sharma, Asstt. Director at point A. However as per the property register of DDA, the FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.7 of 23 Date of Decision:17.08.2020 flat no. 100B was allotted to one Inderjeet Sharma and was not allotted to Usha Rani.
14. The witness was recalled and he brought the original property register. He further deposed that as per record, the relevant entry of flat no. 100B being allotted to Inderjeet Sharma in the property register, was Ex. PW7/A. The Possession letter in the name of Usha Rani is Ex.PW3/A is forged and fake. He further stated that the other documents shown in the name of Usha Rani regarding this flat i.e. PW3/B, Ex. PW5/A are also on record and they are forged as this flat was not allotted in her name. The witness was duly cross examined.
15. Witness Sh. Arvind Kumar Verma, Executive Engineer, CPWF was examined as PW8. He deposed that in the year 1995, he was posted as Deputy Director MIG, in DDA in New Delhi. He stated that he did not remember anything about this case, however, letter Ex. PW6/A was issued by him and he further stated that this letter was issued regarding the allotment of flats mentioned in this letter.
16. The witness was crossexamined by Ld. APP as he was suppressing the truth. During his crossexamination, he denied that his statement was recorded by the IO. However, he admitted that the IO had met him in connection with this case. As per the witness, he cannot say whether flat no. 100B, Pocket AD, Pitampura was not allotted in the name of Smt. Usha Rani unless he saw the letter no. 25(2)95/AV7 dated 25.05.1995. Further, he also could say without seeing the file that the flat mentioned above was allotted in the name of Smt. Usha Rani, in a draw in the year 1992. Witness FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.8 of 23 Date of Decision:17.08.2020 further denied that he had stated to the police that signatures shown at point Q1 in Ex. PW3/A is of A.K. Sharma, the then Assistant Director, Housing, DDA, MIG. Infact the witness also stated that he did not know A.K. Sharma. Witness not crossexamined by all accused persons despite opportunity.
17. Witness, namely, Sh. M.C. Joshi, Assistant Govt. Examiner of questioned document, Chandigarh, was examined as PW9. He deposed that he had received specialized training in forensic document examination including identification of handwriting and detection of forgery in the Govt. of India Laboratory, Shimla. He claimed to have examined thousands of documents and have expressed opinion on them independently. He further deposed that the documents of this case have been examined by him in the capacity of Senior Scientific officer at Forensic Science Laboratory, Govt. of N.C.T. on deputation. He further stated that the document of this case was submitted for laboratory examination and opinion by Inspector Section Forgery Crime and Railways, Delhi police vide its letter no. 19D/Sec. Forgery dt. 30.01.1996. The detail of the document relevant to this challan is as below :
18. "Questioned signature mark Q1 on Ex. PW3/A for Scientific comparison and examination of the said questioned signatures specimen signature of the person namely Sh. A. K. Sharma were also supplied to him which are marked as Mark X16 to X19 on Ex. PW2/A1 to PW2/A4. Further stated that after careful and thorough scientific examination of the aforesaid questioned and specimen signatures, he expressed his conclusion which is contained in typed form in his report no. FSL96/D123 dated. 04/02/1997 which is on two sheets and each sheets bears his signatures which is on Ex. PW9/A. This PW9/A contains his detailed report as well as basis of his opinion. In this FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.9 of 23 Date of Decision:17.08.2020 Ex.PW9/A, he had mentioned standards pertaining to other cases but belonging to the same person namely Sh. A. K. Sharma for the convenience and the supplied specien in this case mark X16 to X19 were even also suitable and sufficient for effective comparison with Q1 and arriving at the aforesaid conclusion contained in Ex. PW9/A". Further, the document of this case was also photographed by Govt. Photographer under his direct supervision for record purpose only and at no stage requirement of photograph was felt as original document was available with him for effective scientific comparison and analysis. Witness not crossexamined by all accused persons despite opportunity.
19. Witness Pratap Singh was examined as PW10. He deposed that in the month of November 1993, he contacted Prakash property dealer having its office in AD Pitampura, for purchase of DDA flat. The owner of the Prakash Property dealer of such Mr. Sharma. Witness further stated that he told him that one Mr. Subhash Bata and one more person had a flat for sale purpose. The number of the flat was 100B, AD Block, Pitampura. Subhash Bata told that the said flat was in the name of Mrs. Usha, who was the original allottee and fresh allotment had been made by the DDA in the name of Mrs. Usha Rani and she was the wife of Pyare Lal. Subhash Bata further told him that he will get all the documents executed from the allottee. He (this witness) agreed to purchase the above flat for a sum of Rs. 3,50,000/. He told Subhash Bata and Prakash property dealer to verify from DDA about the genuineness of the allotment of the flat in question. Subhash Bata and one Mr. Grover took him to DDA office and showed him the dispatch register of DDA in which an entry in the name of Mrs. Usha Rani was made, in whose name the flat FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.10 of 23 Date of Decision:17.08.2020 was allotted and possession letter was dispatched to the junior engineer of DDA and the allottee, to get physical possession of said allotted flat from junior engineer. The flat was allotted on the basis hire/purchase.
20. The witness further stated that on 04.01.94, all the documents were prepared by Subhash Bata and got executed in his name, in Subregistrar office and the Will and SPA was registered in SR office (Janakpuri) by Smt. Usha Rani. As per the witness, Subhash Bata and one Mr. Grover were present at that time and then he brought all these persons in the office of Prakash property dealer, in AD Block. Mr. Sharma of Prakash property dealer, Usha Rani Subhash Bata and Mr. Grover were present at that time and got the possession letter from the JE, on the same day i.e. 04.01.94. They handed over the vacant possession of the said flat to him on the same day. The witness further stated that he had made payment of the said flat to accused Subhash Bata, in the presence of above persons. He further stated that he did not know the name of dealing clerk of the DDA office, who showed him the dispatch register. After that he deposited a sum of Rs. 2244/ in the name of Mrs. Usha Rani, in the DDA records, towards installment of the said flat. One day in the month of April 1996, he received two letters from the DDA in the name of one Sushila Nanda and the other in the name of Inderjeet Sharma, showing outstanding amount of about 2 lacs, which stood in the name of abovesaid persons. He further stated that he approached DDA office due to doubt about the genuine allotment of the flat and came to know that the flat stands in the name of Sushila Nanda and Inderjeet Sharma and Usha Rani. Thereafter, he filed a suit for specific performance in the Civil Court, Delhi and later on, the flat was transferred in his name. He correctly FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.11 of 23 Date of Decision:17.08.2020 identified the accused Subhash Bata.
21. The witness was crossexamined by Ld. APP on the limited point of identity of accused. During crossexamination, Ld. APP specifically pointed out towards accused Kamal Vashisht with the assertion that he was the accused in the DDA office, the witness stated that he cannot say that Kamal Vashisht was the same accused. The witness replied that he was not sure since many persons were present there. The witness was duly crossexamined.
22. PW10 was recalled u/s 311 Cr. P.C., later on. He stated that he was the owner of flat no.100 B, PocketAD, Pitampura, Delhi. He brought the certified copy of the order of Hon'ble High Court vide which Hon'ble Delhi High Court directed DDA to transfer the flat in his favour vide Ex. PW10/A. Thereafter, he deposited the cost of the flat with DDA, which executed a Conveyance deed in his favour, the photocopy of which is Mark A.
23. Witness Inspector Ram Kumar was examined as PW11. He deposed that on 16.06.1995, he was posted as inspector at EOW (Crime Branch) and on that day, the investigation of the present case was marked to him. He recorded the statement of witnesses and collected the relevant documents and the same were seized vide memo Ex. PW 3/C. He further deposed that he obtained the specimen signature of accused A.K Sharma vide documents Ex.PW 2/A1 to 2/A4. The said specimen signatures were sent to FSL with questioned documents. He further stated that he arrested other coaccused Subhash Bata, Kamal Kishore and A.K Sharma, vide memos Ex.PW11/A to PW11/C. Further, he collected the result from FSL and after completion of investigation, he prepared the charge sheet.
FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.12 of 23 Date of Decision:17.08.2020
24. Witness Sh. Ranbir Singh, Dealing Assistant, MIG Housing, DDA, Delhi was examined as PW12 upon application u/s 311 Cr.P.C., moved by Ld. APP. He bought the original chain of ownership proof of the property i.e. Flat no. 62, Sector18, A1, Rohini, Delhi. As per the record, the original allottee of the above mentioned property was Bharat Bhushan Mahajan vide Ex. PW12/A. The ownership in favour of Bharat Bhushan Mahajan was cancelled due to nonpayment of cost of the flat vide Ex. PW12/B. Thereafter, in the year 2004, the flat was allotted in the name of Sh. Om Prakash Gera and the physical possession of the above said property was handed over to him vide Ex. PW12/C and Ex. PW12/D respectively. On 09.03.2005, the Sale deed was executed in favour of Sh Om Prakash Gera and a Conveyance deed in this regard was executed in his favour vide Ex. PW12/E. He was crossexamined.
25. No other witness was examined by the prosecution. It is pertinent to mention that during PE, Ld. APP for the State moved an application u/s 311 Cr.P.C., for examination of Inderjeet Sharma, the actual allottee of flat no. 100B, AD, Pitampura, as well as Superintendent (Housing) MIG, DDA, alongwith original records pertaining to the above flat as well as flat no. 62, Block A1, Sector18, Rohini, Delhi. The said application was allowed by the Ld. Predecessor but witness Inderjeet Sharma could not be examined as he was untraceable for want of complete particulars. PW12 Ranbir Singh was examined in this regard but he did not produce the record pertaining to flat no.100B, Pitampura and only that of Flat no.62, A1, Sector 18, Rohini. Hence another application u/s 311 Cr.P.C., was moved by Ld. APP for recalling PW7 Umed Singh alongwith entire record of the above flat FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.13 of 23 Date of Decision:17.08.2020 no.100B, Pitampura. The said application was also allowed on 27.11.2010. However the summons to this witness was returned back with report that the witness had expired. Then at the request of Ld. APP, PW12 Ranbir Singh was recalled vide order dated 04.01.2011 to produce the above record. However this witness upon recall submitted that the concerned record pertained to another branch i.e. LAB(H) Branch of DDA and he was unable to produce the same. Request of Ld. APP to be granted another opportunity to summon the said record was declined and PE was closed vide order dated 07.02.2011.
26. The statement of accused persons u/s 313 Cr.P.C. was recorded on 04.06.2009, wherein all the accused claimed to be innocent and falsely implicated in this case. In view of another witness examined u/s 311 Cr.PC., the accused persons were again examined u/s 313 Cr.PC., on 30.01.2020. Accused A.K. Sharma further stated that being Asst. Director, he used to receive documents regularly and process them as per law. No DE was led by the accused persons.
27. Final arguments were addressed from both sides. Written arguments were also filed on behalf of accused persons.
28. I have now perused the evidence on record and also considered the rival arguments from both sides.
29. The accused persons are charged for offences u/s 420/468/471/120B IPC which read as under : Section 420. Cheating and dishonestly inducing delivery of property FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.14 of 23 Date of Decision:17.08.2020
--Whoever cheats and thereby dishonestly induces the person de ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 468. Forgery for purpose of cheating--Whoever commits forgery, intending that the document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 471. Using as genuine a forged document or electronic record--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
Section 120B. Punishment of criminal conspiracy--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
30. In Rabindra Kumar Dey vs State Of Orissa 1977 AIR 170, it was held by Hon'ble Supreme Court that the onus lies affirmatively on the prosecution to FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.15 of 23 Date of Decision:17.08.2020 prove its case beyond reasonable doubt and in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty and this onus of the prosecution never shifts. Now I shall proceed with appreciation of evidence in the light of ratio of the aforesaid judgment.
31. Having appreciated the evidence on record, in my considered opinion, the case of prosecution is not proved. First and foremost, there is no evidence on record against accused Kamal Kishore, the dealing clerk in DDA. His name as being involved in the alleged cheating and forgery has not been taken by any witness and only a reference has been made about involvements of some DDA officials but the same has remained mere allegations. The prosecution fails to prove as what was the exact role of accused Kamal Kishore in the alleged offences and how this accused was connected with other coaccused persons. Admittedly there is no document placed on record which is in the handwriting or signatures of accused Kamal Kishore. The prosecution also fails to lead any evidence whether direct or circumstantial to prove the existence of criminal conspiracy of other accused persons with the present accused or even as to how he was beneficiary in the whole transaction. Hence there is no credible evidence against him on record.
32. As regards accused Subhash Bata is concerned, he is alleged to be the main conspirator in this case. He is the one who contacted PW4 Usha Rani for sale of her flat and he was the one who got all the alleged forged documents of flat no.100B, AD, Pitampura, prepared in the name of Usha Rani. Further he was the one who got it sold to PW10 Pratap Singh through another property dealer PW5 Om Prakash Sharma. Accused Subhash also received the payment of flat from PW10 and this accused was also present at the time FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.16 of 23 Date of Decision:17.08.2020 when the possession of the flat was handed over to PW10. The evidence of the above witnesses is categorical in this regard and corroborates each other's testimony and the role of accused in the sale of above flat, is proved beyond any doubt.
33. As far as the role of accused A.K. Sharma is concerned, the allegations against him is that of issuing fake Possession letter Ex.PW3/A in favour of Usha Rani, under his signatures. The accused has taken the defence that in the course of his normal duty, he used to receive the documents and dispose it as per law. He also alleged that his specimen signatures were obtained illegally by the IO, when he was in custody and denies his signatures on disputed document.
34. I shall now deal with the evidence produced against the accused persons.
35. As per the prosecution, the flat bearing no. 100B, AD, Pitampura, was never allotted by DDA in favour of Usha Rani. The flat was allotted to one Inderjeet Sharma. PW3 states that allotment letter Ex. PW3/A was a forged document but he did not produce any document in proof of the same. The most important witness on behalf of prosecution to prove this fact is PW7 Umed Singh, Superintendent, Vigilance. This witness similarly alleged that letter Ex. PW3/A was forged letter however, he also produced Property Register of DDA having relevant entry at Ex. PW7/A and contended that the flat was allotted to Inderjeet Sharma. However perusal of Ex. PW7/A shows that the same not only bears the name of Inderjeet Sharma but also that of Usha Rani, as the persons to whom the above flat was allotted. During Crossexamination of this witness, he admitted that: "I have never dealt FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.17 of 23 Date of Decision:17.08.2020 with the file, of the allotment in question. It is correct that as per my record, both names i.e. Inderjeet Sharma and Usha Rani are mentioned. The flat in question was allotment in the new pattern scheme and I was working in the general housing scheme."
36. Hence if the sole document Ex. PW7/A produced on behalf of prosecution to prove that the flat no.100B, Pitampura, was not allotted in the name of Usha Rani, bears the name of both Inderjeet Sharma and Usha Rani, it is not possible for this court to conclude that the flat was not allotted to Usha Rani but to Inderjeet Sharma only. Obviously, it is not possible that the flat was jointly allotted to both of them unless it was applied in that manner. Hence, it is evident that some manipulation has been made in the records of DDA by its own officials by inserting either the name of Usha Rani or Inderjeet Sharma, as allottee. Had the entire record pertaining to flat no.100B was produced in court, it would have shed light on this issue. The testimony of Inderjeet Sharma would have been crucial in this regard but despite application u/s 311 Cr.P.C. being allowed, he could not be examined as his complete address was not on record. Infact the documents also could not be brought on record from the office of DDA.
37. The prosecution had also relied upon one reply Ex. PW8/A of PW8 Arvind Kumar Sharma, the then Deputy Director, DDA, in response to letter of Ex. PW6/A of PW6 Insp. Bhim Singh, regarding enquiry about genuineness of documents of flat no. 100B. The reply Ex. PW8/A was written by PW8 to PW6 in his capacity as Deputy Director, MIG in DDA. As per this reply Ex. PW8/A, the document of Possession in favour of Usha Rani was forged FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.18 of 23 Date of Decision:17.08.2020 however, the basis on which the said reply was issued, has not been brought on record. The supporting documents of DDA have not been filed nor appears to have been made available to PW6 by PW8 alongwith this reply, as no such document has been filed. Even PW8 stated in his cross examination by Ld. APP that even though the said reply was issued by him but without going through the record, he was not able to say in which context the said letter was written by him. He denied giving any statement to the IO and also denied to identify accused A.K. Sharma. This considerably weakens the prosecution case.
38. Further there is no victim in this case, of the alleged cheating and forgery by accused persons. Presuming that as per the records of DDA, the flat no.100B, Pitampura, was allotted in the name of Inderjeet Sharma, then he should have been the victim of this cheating and forgery, as his flat was illegally shown to have allotted to PW4 Usha Rani and then possessed by PW10 Pratap Singh. However he did not make any complaint regarding the same nor there is any document that he pursued the matter with DDA or that he surrendered the possession of his flat or that his allotment was cancelled. Infact he was not even cited as a witness in this case for reasons best known to the IO.
39. Now, if one presumes that DDA was also cheated then it is an admitted fact that no complaint was made even by DDA to either police or any other authority regarding the said illegal acts of its officials in collusion with property dealers. Infact no person had made any complaint regarding the alleged forged and fake documents of above flat before any authority. The present FIR was got registered on the rukka sent by PW6 without making FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.19 of 23 Date of Decision:17.08.2020 any enquiry from the victim of the alleged cheating and forgery and on his own, which is also surprising.
40. Furthermore, from the facts on record, if forged Possession letter and slips Ex. PW3/A and Ex. PW3/B of flat no.100B, AD, Pitampura, were issued in favour of PW4 Usha Rani and that she admits having signed documents and also of having received Rs.8,000/ from accused Subhash Bata towards the sale of the above flat, then the said PW4 Usha Rani ought to have been arrayed as an accused in this case since she was one of the beneficiary of the alleged scam and without her connivance and consent, it was not possible for other accused persons to carry out the cheating and forgery. However instead of arraying her as an accused, she was added in the list of witnesses which is strange and inexplicable.
41. Lastly at this stage, I also deem it fit to express my opinion with regards to signatures of accused A.K. Sharma on disputed documents Ex. PW3/A. The evidence on record suggests that he was Assistant Director in DDA and the above document in favour of Usha Rani bears his signatures. It was argued on behalf of accused that the signatures on the said document was not that of accused. However the said argument is not sustainable. It is undisputed that the accused A.K. Sharma was authorised to sign allotment/possession letter of DDA as Assistant Director (Housing) of DDA. PW3 (Junior Engineer, Northern Division of DDA) in his testimony, has correctly identified the signatures of accused A.K. Sharma on documents Ex. PW3/A, which was issued in favour of Usha Rani and this witness has not even been cross examined and so his testimony is unrebutted. Even PW7, the Assistant Director, Vigilance, DDA, has also correctly identified the signatures of FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.20 of 23 Date of Decision:17.08.2020 accused A.K. Sharma on Possession letter Ex. PW3/A and there is no cross examination of this witness on behalf of accused A.K. Sharma. Hence, it is not now open to accused A.K. Sharma to contend that the disputed signatures were not scribed by him.
42. Furthermore even as per report of PW9, who was the forensic expert, the disputed signatures were that of accused himself. During the course of arguments, it was also argued on behalf of accused that his alleged specimen signatures were taken while he was in custody and so the said signatures cannot be used against him. However, it has to be said that the accused was himself the authorised signatory and secondly, when PW1 was examined before the court, he expressly stated that the signatures were given by accused voluntarily and with his free will and he was not even cross examined by the accused. So, the testimony of this witness remained unrebutted. I would hasten that the manner in which the IO obtained his signatures was not as per law and IO should have sought permission from the court for obtaining the signatures of accused and should not have proceeded to take signatures of accused on his own. However in view of my findings at Para 41, it stands substantially proved that the signatures on Possession letter Ex. Pw3/A is that of accused A.K. Sharma himself.
43. My above appreciation of evidence shows that the prosecution fails to prove that the flat no.100B, AD, Pitampura, was either allotted to Inderjeet Sharma or not allotted to Usha Rani and hence, the entire case of prosecution collapses and accused persons cannot be convicted for either committing Cheating or Forgery. At this stage it would also be worthwhile to refer to the judgement of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.21 of 23 Date of Decision:17.08.2020 AIR 1957 SC 637 regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that : "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted."
44. Again in Jagdish Prasad vs State (Govt Of Nct Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."
45. To conclude, it has to be said that the present case clearly suffers from a very shoddy investigation done by the IO. The facts of this case clearly points out that some illegal acts may have been committed in DDA qua the flats meant for allotment and that too by its own officials in connivance with property dealers. However the investigation has been done in a very halfhearted manner (probably due to extraneous considerations), leaving vital loopholes enabling the accused persons herein, to take benefit of the same. It also appears that some other officials of DDA may also be involved but no investigation was done qua their role. Considering the fact that 25 years have FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.22 of 23 Date of Decision:17.08.2020 since lapsed, no purpose would be served in recommending any departmental action against the IO.
46. In my considered opinion and in view of the aforesaid findings, the evidence on record is not sufficient to convict the accused persons. Accordingly, accused Subhash Bata, Kamal Kishore Vashishtha and A. K. Sharma are given benefit of doubt and are hereby acquitted from offences punishable u/s 420/468/471/34/120B IPC.
Ordered Accordingly. File be consigned to Record Room.
Announced on VC hearing Via Cisco Webex Meeting App (ATUL KRISHNA AGRAWAL) ACMM/NORTHWEST/ROHINI COURTS 17.08.2020 FIR No. 233/1995 PS Shalimar Bagh State Vs Subhash Bata Etc. Page No.23 of 23 Date of Decision:17.08.2020