Delhi District Court
State vs Hardwari Lal & Anr. on 30 August, 2016
State v. Hardwari Lal & Anr.
IN THE COURT OF SH. SUSHANT CHANGOTRA ,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Hardwari Lal & Anr.
FIR No. 562/99
PS Mehrauli
U/s 420/34 IPC
JUDGMENT
1 Serial No. of the case : 54/2M/09
2 Date of commission : 07.07.1998
3 Date of institution of the case : 20.01.2001
4 Name of complainant : Sh. Jai Ganga
5 Name of accused : (i) Hardwari Lal S/o Sh.
Laxmi Narain R/o Village
Rajpur Khurd, Mehrauli,
New Delhi (Abated).
(ii) Satbir Yadav S/o sh.
Laxmi Narain R/o Village
Rajpur Khurd, Mehrauli,
New Delhi.
6 Offence complained of : U/s 420/34 IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 30.08.2016
9 Final order : Convicted
10 Date of judgment : 30.08.2016
FIR No. 562/99 PS: Mehrauli 1 of 18
State v. Hardwari Lal & Anr.
BRIEF FACTS AND REASONS FOR DECISION
1. The brief facts of the case of the prosecution are that on 07.07.1998 at Khasra No. 102, Maindangarhi, Mehrauli, New Delhi accused cheated complainant Jai Ganga of Rs. 4.50 lacs by dishonestly inducing him to purchase property measuring 10 Sq. yards situated in Khasra No. 101 and 102, Maidangarhi, Mehrauli, whereas, the accused were not the owners of the said property. Accordingly, the FIR u/s 420/34 IPC was registered.
2. After completion of investigation, the chargesheet was filed. Copies of challan were supplied to both the accused persons in compliance of section 207 of CrPC.
3. Prima facie case of commission of offence under Section 420/34 IPC was made out against both the accused. Charge u/s 420/34 IPC was framed upon both the accused on 06.05.2002.
4. In order to establish the guilt of accused prosecution has examined ten witnesses. PW1 HC Abbas Raza proved the copy of FIR Ex. PW1/A.
5. PW2 Sh. Jai Ganga deposed about the allegations in his complaint. He proved the agreement to sell Ex. PW1/A consisting of four pages, power of attorney i.e. GPA Ex. PW1/B and receipt FIR No. 562/99 PS: Mehrauli 2 of 18 State v. Hardwari Lal & Anr.
Ex. PW1/C for consideration of Rs.4.50 lacs. He also proved a complaint Ex. PW1/D to the SHO Mehrauli. He gave all the papers consisting of GPA agreement to sell and receipt to police which were seized by the police vide memo Ex. PW1/E. He also handed over copy of account no. 872 Dena Bank Chattarpur which was seized by IO vide memo Ex. PW1/F.
6. PW3 Ramesh Chand was the attesting witness of documents executed between complainant and accused Hardwari Lal. He deposed that in the first week of July 1998, a deal regarding purchase of property measuring 120 Sq. yards situated in khasra no. 101 & 102, Maidangarhi took place between complainant Jai Ganga, Satbir Singh and Hardwari Lal. The property was in the name of Hardwari Lal. Accused Hardwari lal and Satbir Singh demanded Rs. 5 lacs as they were in need of money. The deal was finalized for sum of Rs. 4.5 lacs. On 07.07.1998 between 9 to 10 AM, both accused brought the typed papers of GPA, agreement to sell and receipt. The complainant gave cash of Rs. 3.5 lacs and a cheque of Rs. 1 lac to accused Hardwari Lal. The signed as an attesting witness on all documents i.e. Ex. PW1/B, PW1/C and PW1/D. He also stated that one Azizuddin had also put his thumb impression on all the papers as a witness. Accused Hardwari Lal had also signed in his presence. On 16.07.1998 the complainant & both the witnesses as well as both accused went to INA and there all FIR No. 562/99 PS: Mehrauli 3 of 18 State v. Hardwari Lal & Anr.
of them identified their signatures and the documents were attested by notary.
7. PW4 Sh. Mohan Lal i.e. Halka Patwari brought the original record of khasra no. 101 & 102 of village Maidangarhi and proved the copy of khatoni of land in question Ex. PW4/A. As per revenue record the land in question belonged to one Smt. Katori Devi and same was transferred to her vide file no. 86/0001 dated 16.06.2000 by order of Tehsildar/ Naib Tehsildar dated 16.08.2000. Before that the land in question belonged to Ram Singh, Gyan Singh and Bhagat Singh etc.
8. PW5 Sh. Pardeep Kumar i.e. Patwari deposed that on 03.08.1999, he prepared a copy of khatoni of khasra no. 101/102 of land measuring 4 Bigha & 18 Biswas which belonged to Ram Singh, Gyan Singh and Bhagwati Singh etc. On 03.08.1999, he gave copy of khatoni Ex. PW5/A to the IO.
9. PW6 SI Satender Sangwan deposed that on 06.11.1999 investigation of the case was handed over to him. Since all the investigation had already been completed, therefore, he filed the challan.
10. PW7 Insp. J. S. June deposed that on 23.08.1999, Sh.
Jai Ganga gave a complaint. After obtaining legal opinion from prosecution branch the present FIR was registered. After registration of FIR, he seized the documents from complainant Jai FIR No. 562/99 PS: Mehrauli 4 of 18 State v. Hardwari Lal & Anr.
Ganga which are placed on the file as Q1 to Q10. He proved seizure memos Ex. PW1/E and PW1/F, arrest memos of both accused Ex. PW7/A and PW7/B and their personal search memos Ex. PW7/C and PW7/D.
11. PW8 Dr. S Ahmad i.e. Assistant Govt. Examiner of questioned documents proved his detailed report Ex. PW8/A.
12. PW9 Sh. Chattarpal Singh produced the O4 register regarding sanctioning of mutation. The record of Khatta khatoni no. 114, khasra no. 101 measuring (215), khasra no. 102 measuring (2
3), khasra no. 154 min measuring (55) total 10 Bighas 3 Biswas was at serial no. 205 of the 04 register. The said property was sold by Sh. Arvind Kumar of village Maidangarhi to Smt. Katori Devi w/o Sh. Jai Ganga on 08.06.2000. Mutation in her favour was sanctioned on 16.08.2000 by the order of CO (Consolidation Officer) vide no. 86/200001. The entry was signed by Kanoongo and Patwari. He proved the copy of the same as Ex. PW9/A.
13. PW10 Euginekujur produced the original record of case titled as "Katori Devi v. Arvind Kumar" misal no. 86/200001 of village Maidangarhi which contained the record of mutation pertaining to khasra no. 101 measuring 2 bigha and 15 biswas, khasra no. 102 measuring 2 Bighas and 3 Biswas and khasra no. 154 'Min' measuring 5 Bigha and 5 Biswas. As per record, Katori Devi applied for mutation of land and filed copy of registered sale FIR No. 562/99 PS: Mehrauli 5 of 18 State v. Hardwari Lal & Anr.
deed of the abovesaid land. He tendered the said application Ex. PW10/A and the certified copy of sale deed dated 08.06.2000 as Ex. PW10/B. The said record also contained the original report of Patwari w.r.t. said land & he proved the copy of the same Ex. PW10/C. The said record also contained the original order of consolidation officer qua mutation dated 16.08.2000 i.e. Ex. PW10/D. He also produced the original copy of khatoni showing the mutation of the abovesaid land & the copy of said khatoni Ex.PW10/E.
14. PE was closed on 30.07.2014. Statements of both the accused u/s 313 Cr.PC were recorded on 14.01.2011. Both accused opted not to lead defence evidence. Statements of both accused u/s 313 Cr.PC were again recorded on 18.12.2014. Again both accused opted not to lead defence evidence.
15. Proceedings qua accused Hardwari Lal were abated vide order dated 31.07.2015.
16. The Ld. APP for the State assisted by the Ld. counsel for the complainant has argued that case of the prosecution has been proved beyond reasonable doubt. The testimony of complainant could not be impeached in his cross examination. PW3 Sh. Ramesh i.e. attesting witness also supported the case of the prosecution.
17. On the other hand, ld. defence counsel has argued that:
(i) There is no explanation for delay in registration of FIR No. 562/99 PS: Mehrauli 6 of 18 State v. Hardwari Lal & Anr.
FIR.
(ii) The complainant never demanded original documents & no reason for not demanding the original documents prior to execution of documents has been brought out.
(iii) The original documents show that they were typed subsequently just to cover up the alleged signatures of accused Hardwari Lal.
(iv) The specimen signatures were obtained by police without permission of Hon'ble Court. He relied on law laid down in Rakesh Kumar v. State 2004 (2) Criminal Law Journal 452.
(v) He also argued that it is the case of prosecution that cheque of Rs. 1 lac was credited in the account of Sh. Laxmi Narayan i.e. father of accused persons but no witness from bank was examined nor any investigation was conducted w.r.t. handwriting of receipt Ex. PW1/C.
(vi) The notary public has not been examined for ascertaining the true facts. The role of the complainant also shows that accused has been falsely implicated.
(vii) The accused Satbir Singh being the brother of Hardwari Lal has been falsely implicated. He did not sign any document and money was not handed over to him.
(viii) The accused Hardwari Lal was partner of complainant in sale and purchase of agricultural land. The cheque FIR No. 562/99 PS: Mehrauli 7 of 18 State v. Hardwari Lal & Anr.
in the name of Sh. Laxmi Naryana was issued to settle his accounts with accused Hardwari Lal. No document was executed by Hardwari Lal in favour of complainant and money was also not given to him.
(ix) The complainant has prepared forged documents in connivance with PW3 SI Ramesh Chand who was serving as SI in Delhi Police. He also placed reliance on law laid down "Rakesh Kumar v. State" 2004 (2) CrLJ and "Sukhwinder Singh v. State of Punjab".
18. In rebuttal the counsel for the complainant also submitted written arguments. It is argued that:
(i) The short delay has been explained. There was no covering up of the signature of accused Hardwari Lal.
(ii) The IO committed a bona fide mistake of taking specimen signatures of accused. It has no bearing on merits of the case as evidence of handwriting expert is only corroborative in nature. The allegations have been proved as per evidence of PW2 and PW3.
(iii) Since it has been proved that cheque of Rs. 1 lac was credited in the account of Sh. Laxmi Narayan, therefore, there was no necessity to examine the bank witness.
(iv) The receipt has been admitted by defence. In cross FIR No. 562/99 PS: Mehrauli 8 of 18 State v. Hardwari Lal & Anr.
examination of complainant following suggestions were put:
, "It is correct that documents were signed by Hardwari Lal only."
"It is incorrect that I handed over cheque of Rs. 1 lac to Hardwari Lal to settle my acount with him being a partner in agricultural land deal."
(v) There was no necessity to examine notary public as there was direct evidence in the form of PW2 & PW3.
(vi) The signature of complainant on documents Ex. PW1/C are irrelevant as it has no bearing on the case.
(vii) The complainant moved an application dated 31.05.2011 for correction of typographical errors apparent in evidence. The said mistakes were rectified vide order dated 22.01.2013.
(viii) As far as role of Satbir Singh is concerned, he acted with his brother Hardwari Lal and gave false assurance to the complainant. He also stated that original documents were misplaced and at last threatened the complainant. Even PW3 in his cross examination stated that both the accused counted money in his presence. Accused has not brought any evidence on record that the cheque was given by PW3 to settle the account with complainant.
19. I have considered the submissions made by way of FIR No. 562/99 PS: Mehrauli 9 of 18 State v. Hardwari Lal & Anr.
written arguments and oral arguments. I have also gone through the evidence on record very carefully.
20. The gist of allegations is that both the accused approached the complainant and proposed to sell land situated in Khasra no. 101 & 102 of village Maidangarhi asserting that it belongs to accused no. 1 Hardwari Lal. On the basis of said assurance a deal was struck between them for purchasing land for total sale consideration of Rs.4.5 lacs. The documents i.e. GPA Ex. PW1/A, agreement to sell Ex. PW1/B and the receipt Ex. PW1/C were executed by accused Hardwari Lal. Sum of Rs. 1 lac was paid by way of cheque in favour of Sh. Laxmi Narayan i.e. father of accused and remaining Rs. 3.5 lacs was paid in cash. Later on the complainant came to know that said land did not belong to accused Hardwari Lal and both accused in furtherance of their common intention had cheated him.
21. The prosecution has examined the complainant i.e. PW2 Sh. Jai Ganga. He categorically supported the case of prosecution by deposing about all the allegations and also proved the documents as mentioned above. He was cross examined at length by ld. defence counsel but nothing material came out therein which could corrode his credibility.
22. There were certain facts in cross examination of PW2 Sh. Jai Ganga which were rectified vide order dated 22.01.2013 FIR No. 562/99 PS: Mehrauli 10 of 18 State v. Hardwari Lal & Anr.
passed by Ld. Predecessor of this court. The relevant excerpts of the order are reproduced as below:
"Accordingly the application is allowed. The figure of Rs. 3,05,000/ shall be read as Rs. 3,50,000/ on page no. 1 of the testimony of PW2 Jai Ganga. Similarly, on page no. 2 of the said testimony, the eighth line shall be read as 'and came to know that the accused Hardwari Lal is not the owner' instead of "and came to know that the accused Hardwari Lal is the owner". On page 5, in third para, second line shall be read as 'of my wife and I have purchased the same in the year 2000 from' instead of "of my wife and I have purchased the same in the year 1995 from".
23. PW3 SI Ramesh Chand i.e. attesting witness also deposed that documents Ex.PW1/A to PW1/C were signed by the accused and other witness in his presence. He further deposed that both accused demanded Rs. 5 lacs from complainant in his presence. They brought the drafted documents at the house of complainant. Then both accused counted Rs. 3.5 lacs. Thus, the said witness also supported the case of prosecution and specified roles played by accused Hardwari Lal & Satbir Singh.
24. In his cross examination PW2 Jai Ganga stated that accused persons handed over notarized documents of property to him. PW3 SI Ramesh Chand stated that documents were not attested on 07.07.1998. It is necessary to observe that PW2 Jai FIR No. 562/99 PS: Mehrauli 11 of 18 State v. Hardwari Lal & Anr.
Ganga was examined after gap of almost 5 years and PW3 SI Ramesh Chand was examined after 7 years. Therefore, minor contradictions were bound to creep in due to lapse of time. Minor contradictions are bound to creep in the testimonies of PW's due to lapse of time.
25. In Prakash Kumar @ Pakka versus State CRL.A. 1433/2010, Hon'ble High Court reiterated principles laid down in Gore Lal vs. State 2010 III AD (Delhi) 34, and observed that principles are to be followed while evaluating evidence of eye witnesses: "While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a FIR No. 562/99 PS: Mehrauli 12 of 18 State v. Hardwari Lal & Anr.
witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentence torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigation officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole".
26. It is further necessary to mention that in the cross examination of PW2 Jai Ganga a suggestion was put to him that the documents were executed by accused Hardwari Lal. The said suggestion is again reproduced below:
"It is correct that documents of this present case were signed by accused Hardwari lal".
27. The aforementioned suggestion is an admission that accused Hardwari Lal had signed the documents. Thus, the said admission corroborates the depositions of complainant and attesting witness. The said evidence has established beyond reasonable doubt that the documents Ex.PW1/A to PW1/C were executed by accused Hardwari Lal.
28. In this case, the specimen signatures of accused Hardwari Lal were taken by the IO during course of investigation. The said signatures on the documents Ex.PW1/A to PW1/C FIR No. 562/99 PS: Mehrauli 13 of 18 State v. Hardwari Lal & Anr.
alongwith signatures were sent to FSL. The FSL gave a report Ex. PW8/A & found that:
"The person who wrote the red enclosed signatures stamped and marked S1 to S48 also wrote the red enclosed signatures similarly stamped and marked Q1 to Q12".
29. However, in Sapan Haldar & Anr. v. State 2012
(viii) AD 533 it has been held that, "Handwriting and signature are not measurement as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence".
30. Thus, the report of handwriting expert Ex. PW8/A is of no aid to the case of prosecution. However, the lack of admissibility of the said report does not corrode the testimonies of complainant and attesting witness. It also does not dilute the due weightage required to be given to them. It is a settled proposition of law that report of expert qua handwriting is only for corroboration. Therefore, even if the corroborating evidence is inadmissiable, it will not diminish the value of depositions of PW2 and PW3 respectively.
FIR No. 562/99 PS: Mehrauli 14 of 18 State v. Hardwari Lal & Anr.
31. I also do not find force in the argument of ld. defence counsel that non examination of notary public is fatal to case of prosecution. In this case, prosecution has examined complainant and attesting witness, therefore, non examination of notary public is of no value. The argument of ld. defence counsel that the documents have been typed to adjust the alleged signatures of Hardwari Lal is again without merits. The bare perusal of documents Ex. PW1/A to PW1/C do not reveal any such fact. Moreover, the said documents have been proved as per law. I also do not find force in argument of ld. defence counsel that non examination of bank witness is fatal. The prosecution has proved that sum of Rs. 1 lac was credited to the account of Sh. Laxmi Narayan i.e. father of the accused persons. Moreover, in the cross examination of PW2 Jai Ganga, the defence had put the following suggestions:
"It is incorrect to suggest that I handed over the cheque of Rs.1 lac to Hardwari Lal to settle my account with him being the partner in agricultural land deal".
This suggestion shows that cheque of Rs. 1 lac was encashed in the bank account of father of accused. The accused has not brought any evidence to show regarding which account the said alleged settlement was effected. Further the prosecution has proved receipt Ex. PW1/C vide which payment of Rs. 4.5 lacs was received FIR No. 562/99 PS: Mehrauli 15 of 18 State v. Hardwari Lal & Anr.
by accused Hardwari Lal. The complainant has also explained the source of amount of cash of Rs. 3.50 lacs in his cross examination.
32. The argument of defence that there is unexplained delay is once again without merits. It is settled proposition of law that the delay in all the cases is not fatal. If the circumstances reveal that delay in registration of FIR was used for false implication, only for then it assumes importance. Moreover in this case PW Insp. J. S. June stated that complaint was sent for legal opinion & on the basis of said opinion the FIR was registered. The complaint was given in PS on 31.07.1999 and FIR was registered on 23.08.1999. Thus, the short delay has been properly explained.
33. Thus, it has to be concluded that prosecution has successfully established that accused Hardwari Lal had executed GPA, Agreement to sell and Receipt w.r.t. sale of land measuring 2 Bigas & 15 biswas out of khasra 101 & 2 bigas and 3 Biswas out of Khasra no. 102 to the complainant & received Rs. 4.50 lacs from him.
34. The prosecution has examined PW4 Sh. Mohan Lal i.e. Halka Patwari. The said witness has proved the record pertaining to khasra no. 101 & 102 of village Maidangarhi Ex. PW4/A. As per revenue record, the said land belonged to Sh. Ram Singh, Gyan Singh & Bhagwat Singh etc. The same was transferred to Smt. Katori Devi W/o Sh. Jai Ganga vide file no. 86/0001 dated FIR No. 562/99 PS: Mehrauli 16 of 18 State v. Hardwari Lal & Anr.
16.08.2000. The said evidence shows that accused Hardwari Lal was never the owner of said land and still he executed documents for sale of land to complainant, which actually belonged to someone else by assuring that he was the owner thereof.
35. The argument of the ld. defence counsel that complainant ought to have been aware about the ownership of land to him is without force. The complainant has deposed that he was known to both accused and they used their prior acquaintance with him to dupe him. It is quite normal for a person to believe the persons who are already known to him before hand. It is not unnatural that the complainant would have come under false belief generated by both accused which led to his wrongful loss.
36. The fact that accused Hardwari Lal executed documents i.e. GPA, Agreement to sell and Receipt without having title to the land sought to be transferred speaks volumes about his mala fide intention to deceive the complainant & dupe him of Rs. 4.5 lacs.
37. Although in this case proceedings qua accused Hardwari Lal were abated but the complainant i.e. PW2 Jai Ganga categorically deposed that both the accused had cheated him by assuring that accused Hardwari Lal was owner of the property. Though accused Satbir Singh did not sign any document but he was continuously present with Hardwari Lal right from the time when FIR No. 562/99 PS: Mehrauli 17 of 18 State v. Hardwari Lal & Anr.
the promises were made till the payment was taken. As per unimpeached evidence, the complainant requested both of them to return his money but both of them refused. Testimony of complainant. Even in this regard is supported by PW3 SI Ramesh Chand brought even PW3 stated that both accused told complainant that they were in need of money and both of them had brought documents & later both accused had counted cash of Rs. 3.50 lacs.
38. The aforesaid testimonies clearly reveal that accused Satbir Singh had committed the offence of cheating as both accused shared common intention to cheat the complainant.
39. Thus, in view of aforesaid discussion, it has to be concluded that prosecution has established its case beyond reasonable doubt that accused Satbir Singh & Hardwari Lal in furtherance of their common intention had cheated the complainant. Hence, accused Satbir Singh is convicted for committing offence u/s 420 r/w section 34 IPC.
40. Let accused Satbir Singh be heard on quantum of sentence.
Announced in the open (SUSHANT CHANGOTRA)
court on 30.08.2016 MM5 (South), Saket Courts
New Delhi
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