Delhi District Court
State vs . Rajiv Gupta And Anr. on 11 September, 2019
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE:EAST
KARKARDOOMA COURT: DELHI
FIR No. : 503/04
PS : Preet Vihar (Crime Branch)
u/S : 420/471/473/474/34 IPC
STATE Vs. RAJIV GUPTA AND ANR.
JUDGMENT
A Unique ID No. of the case 3653/16
B Name of the complainant SI Ashok Sharma No.D3144, PIS No.16910039, (EOW)
Crime Branch, Delhi.
C Name of the accused & his 1. Rajiv Gupta s/o Late Sh. Om Prakash Gupta r/o S116, parentage and address School Block, Durga Mandir Wali Gali, Shakarpur, Delhi.
2. Lalit Bansal s/o Sh. U.C. Bansal r/o B7/47, Safdarjung Enclave, New Delhi.
3. Krishan Kumar s/o Sh. Daulat Singh r/o 244/74, School Block, Mandawali, Fazalpur, Delhi.
4.Narender Pal Singh s/o Sh. Girdhari Lal r/o B113, 5080, Sant Nagar, Burari, Delhi.
5. Amit Arya s/o Sh. D R Arya r/o J30, Pandav Nagar Opp. Mother Dairy, Delhi. (Discharged vide order dated 12.06.2007.)
6. Ravi Sharma s/o Sh. K.D. Sharma r/o S139, Shakarpur, Delhi. (already expired and proceedings against him have already been abated.) D Offence Complained of 420/471/473/474/34 IPC E Date of commission of offence. Between 27.9.04 to 30.9.04, F Date of Institution 15.02.2006 G Offence Charged 420/468/471/473/474/34 IPC H Plea of the accused Pleaded not guilty.
I Order Reserved on 09.09.2019 J Date of Pronouncement 11.09.2019 K Final Order All the accused persons namely Rajiv Gupta, Lalit Bansal,
Krishan Kumar and Narender Pal Singh are acquitted for offence u/s 420/471/473/474/34 IPC.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 1 of 34 PROSECUTION'S CASE 1 The case of the prosecution is that between 27.9.04 to 30.9.04, accused Rajiv Gupta and Lalit Bansal at their office at 311, Jagdamba Tower, Preet Vihar, in furtherance of their common intention with other co accused persons dishonestly induced and cheated one Mahipal Singh by stating that they would make available forged bank statement and IT returns for two years in the name of Mahipal Singh for obtaining housing Loan from HDFC Bank and took Rs.4800/ from him. Pursuant to the said inducement on 30.9.04, the accused persons are alleged to have handed over the documents i.e. bank statements sand IT Returns to Mahipal Singh stating them to be genuine which they knew or had reason to believe the same to be false and fabricated bearing the stamps of IT Department and Bank with an intention that the same shall, fraudulently or dishonestly be used as genuine. Thereby they are alleged to have committed offences u/s 420/471/474/34 IPC.
2 There are also allegations against accused Lalit Bansal that on 30.9.04 from his Indica Car bearing no.HR 01 3330, at his instance blank IT Challan forms and some forms bearing the stamps of bank and income tax office were recovered which he had prepared for making an impression intending that the same shall be used for the purposes of committing forgery. He is accordingly, alleged to have committed offence u/s 473 IPC.
State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 2 of 343 The allegations against accused Krishan Kumar are that on 30.9.04 at 244/74, School Block Mandawali, Fazalpur, Delhi he was found in possession of 17 rubber/ steel stamps of different wards of income tax officers of different sizes, loose papers including filled ITR Forms, Saral in the name of different persons, both signed and unsigned, blank ITR Forms bearing stamp of different wards of income tax officers knowing the same to be counterfeit which he intended to be used for committing forgery and fraudulent and dishonestly be used as genuine. Thereby he is alleged to have committed an offences u/s 473/474 IPC.
4 Similarly, from the possession of accused Narender Pal and at his instance on 30.9.04 at B 113/5080, Sant Nagar Burari, 24 Rubber Stamps and 19 leads of different numbers relating to income tax office, oath commissioner, notary etc were recovered which he knew to be counterfeit and intended the same to be used for the purposes of forgery and as genuine. Thereby, he is alleged to have committed offence u/s 473/474 IPC.
5 The allegations against accused Ravi Sharma (since deceased) are that on 30.09.04 at H 66, Laxmi Nagar, one computer make Microtek, monitor, Key Board, Mouse and Docmatrix Printer were recovered from his possession which he used for making forged/ fake documents in the name of Mahipal Singh and blank State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 3 of 34 bank statements, forms of Bank of India, SBI, PNB, Vijaya Bank etc. Accordingly, he is alleged to have committed offences u/s 468/474 IPC.
6 On the basis of these allegations and the complaint made by complainant SI Ashok Kumar (Ex.PW12/A), present FIR was registered on 30.09.2004.
CHARGE 7 After investigation, chargesheet under section 173 Cr. P.C was filed on 15.02.2006 against 6 accused persons namely Rajiv Gupta, Lalit Bansal, Krishan Kumar, Narender Pal Singh, Amit Arya and Ravi Sharma.
8 On the basis of the chargesheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable u/s 420/471/474/34 IPC (accused Rajiv Gupta ) 420/471/474/473/34 IPC (accused Lalit Bansal), 473/474 IPC [accused Krishan Kumar and Narender Pal Singh) and u/ s468/474 IPC [accused Ravi Sharma (since deceased)] were framed against the accused persons and was read out to them to which they pleaded not guilty and claimed trial on 24.8.07. 9 Vide order dated 12.06.2007, accused Amit Arya was discharged in the present case as no prima facie case was found against him.
10 During trial, accused Ravi Sharma expired and proceedings qua him were abated vide order dated 08.05.2019.
State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 4 of 34PROSECUTION EVIDENCE 11 To bring home the guilt against the accused prosecution has examined 13 witnesses in all:
12 PW9 Mahipal Singh is the prime witness of the prosecution case on whose reporting the entire investigating was started. He deposed that in the year 2004 he was working in HDFC Bank Vasant Kunj branch in the department of recovery. Approximately 15 days prior to 30.9.04 one person namely Amit cameto the branch of HDFC Bank and told him that he can arrange a loan for him but he would take some commission. On 24.9.04 Amit introduced him to his boss namely Rajiv Gupta at the office of Rajiv Gupta where 45 persons were also present. On 27.9.04 he against visited the office of Rajiv Gupta alongwith Amit where Rajiv Gupta demanded Rs.6000/ from him for preparing fake documents i.e. his ITR, bank statement and identification proof so that loan can be sanctioned in his favour. He expressed his inability to pay the amount of Rs.6000/. After negotiations deal was finalised at Rs.4800/ and he gave an advance payment of Rs.500/ to Rajiv Gupta. He was called after 3 days for receiving the documents. He was sent to the office of Rajiv Gupta by the officials of HDFC Bank in order to catch the accused persons as they used to prepare forged documents and obtain loan from the bank. The officials of State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 5 of 34 HDFC Bank also contacted the police for the said purpose. 13 On 30.9.04, in the evening, he alongwith police officials went near the office of Rajiv Gupta at Preet Vihar. He was directed by the police officials to go to the office of Rajiv Gupta and was also given amount of R.4300/ (8 currency notes in denomination of Rs.500/ and 3 notes of Rs.100/ each) by the officials of HDFC Bank. He was asked to hand over the same to to accused Rajiv Gupta and his associates as payment for preparing the documents. Thereafter, he went to the office of Rajiv Gupta where 45 other persons were present including Amit. He handed over the amount of Rs.4300/ to accused Rajiv Gupta. Immediately, he was stopped by the police and was asked to stand aside. Police officials made enquiry from him. Bank officials were also present alongwith the police officials. He informed the police about the entire transaction and also informed that he had made the payment to accused Rajiv Gupta. Accused Rajiv Gupta had also handed over to him one ITR and bank statement in the name of one Kapil Motwani and ID of Kapil Motwani bearing his photo which was prepared by accused Rajiv Gupta. He handed over the documents given to him by accused Rajiv Gupta to the IO. Certain stamps were also recovered by the police from the office of Rajiv Gupta and 67 persons were apprehended by police and taken to PS. 14 This witness could not identify accused Rajiv Gupta and in hi s State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 6 of 34 place identified accused Ravi Sharma (since deceased) as accused Rajiv Gupta.
15 This witness was cross examined on behalf of State after seeking permission from the court. He denied the suggestion that his personal search was taken by the police before handing over Rs.4300/ to him. However, he admitted his signatures on the memo of his personal search which is Ex. PW 10/A. He also admitted that police had noted down the numbers of the currency notes before handing over the same to him and admitted his signatures on handing over memo Ex. PW 10/B. He also admitted that the same notes were recovered from accused Rajiv Gupta and same were seized vide memo Ex. PW 10/C. The numbari note i.e. 8 notes of Rs.500/ and 3 notes of Rs.100/ kept in an envelope and sealed with the seal of VL were produced and shown to the witness who identified the same as Ex. P1. He also admitted his signatures on seizure memo Ex. PW 10/D vide which certain documents were seized in his presence but he failed to identify the said documents. 16 PW 12 Inspector Ashok Kumar is the first IO/ complainant in the present case. He deposed that on 27.9.04 while posted at (EOW) Crime Branch, he had received a secret information that some unscrupulous persons were involved in preparing forged Identity Documents for obtaining credit cards and loan from the State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 7 of 34 banks. The information was reduced into writing and submitted to senior officials and got verified by him. On verification he found that one Lalit Bansal was running an office in the name of Fortune Credits at Jagdamba Tower, Preet Vihar in connivance with his associates Amit Arya and Rajiv Gupta. On the same day one decoy customer Mahipal Singh/ PW 9 was sent to the office to obtain the documents from the accused persons for obtaining loan. Mahipal Singh visited the said office and met accused Lalit Bansal who agreed to arrange the documents for a consideration of Rs.4800/. An advance of Rs.500/ was also given to accused Lalit Bansal by Mahipal Singh/ PW 9. PW 9 was asked to collect the documents in the afternoon on 30.9.04. 17 Accordingly, a raiding team was prepared consisting of PW 12, Ct. Omkar Singh /PW 3, Ct. Ram Kanwar/ PW 6, Ct. Kabool Singh under the supervision of Inspector S.R. Yadav/ PW 10. They alongwith decoy customer Mahipal Singh/ PW 9 left the office of Crime Branch on 30.9.04 at about 3.15 pm and reached near ABN Amro Bank, Preet Vihar at about 4.20 pm. The raiding party was briefed and 34 passers by were requested to join raiding party but none agreed. Thereafter decoy customer Mahipal Singh/ PW 9 was directed to collect the documents from accused persons. Personal search of PW 9 was conducted vide memo Ex. PW 10/A and he was handed over 8 currency notes of Rs.500/ and 3 currency notes of Rs.100 State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 8 of 34 (total amounting to Rs.4300/) vide handing over memo Ex. PW 10/B. All the notes were initialed by him. Ct. Omkar/ PW 3 was made a shadow witness with a direction to overhear the conversation between the decoy customer/ PW 9 and accused persons and to give a signal by waiving his hand after the deal was struck. Both of them left the spot at around 4.50 pm and after about 5 minutes PW 9 came out after taking the forged documents from accused Rajiv Gupta. Designated signal was given to the raiding party. Immediately the raiding party conducted the raid and apprehended accused persons namely Lalit Bansal, Amit Arya and Rajiv Gupta. PW 9 stated that accused Rajiv Gupta had handed over the forged documents i.e. forged bank statement and income tax return to him and received Rs.4300/ from him in lieu of the same. 18 Personal search of accused Rajiv Gupta was conducted and numbari notes of Rs.4300/ were recoveref from the right pocket of his wearing pant. Same were sealed with the seal of VN and seized vide memo Ex. PW 10/C. The decoy customer produced the forged documents i.e. bogus bank statement of bank of Baroda, Bhaillore branch in the name of Mahipal Singh for the period 1.4.04 to 30.9.04 (Ex. PW 12/A1), form no.2/D Saral in the name of Mahipal Singh for the financial year 200203 (Ex. PW 8/A), IT challan no. ITNS270 (Ex. PW 8/B), form no.2/D Saral in the name of Mahipal Singh for the financial year 2003 State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 9 of 34 04 (Ex. PW 8/C) alongwith challan Ex. PW 8/D. These documents were seized vide memo Ex. PW 10/D. He prepared rukka Ex. PW 12/A and handed over the same to Ct. Ram Kanwar/ PW 6 for registration of FIR. After registration of FIR IO Keshav Mathur/ PW 13 reached at the spot and the accused persons alongwith seized case property was handed over to him for further investigation. He identified accused Lalit Bansal and Rajiv Gupta with numbari notes which are Ex. P1. 19 PW 3 HC Omkar Singh is the shadow witness. His testimony is in consonance with that of PW 12. However, he stated that currency notes in the denomination of Rs.500/ were handed over to Mahipal Singh. He also stated that on search of office of Rajiv Gupta, certain computers and other documents were seized in his presence by the IO. He also submitted that one Indica car was seized vide memo Ex. PW 10/J. Computer of Kishan Kumar was seized vide memo Ex. PW 3/A and that of accused Ravi Sharma (since deceased) was seized vide memo Ex. PW 3/B. Recovered documents were seized vide memo Ex. PW 3/C. Seizure memo of rubber stamp and documents is Ex. PW 3/D and stamps of Narender Pal Singh were seized vide memo Ex. PW 3/E. Disclosure statement of accused Rajiv Gupta, Amit Arya and Lalit Bansal, Ravi Sharma (since deceased) Krishan Kumar and Narender Pal which are Ex. PW State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 10 of 34 3/F to K were recorded in his pesence. He identified the accused persons. However, his testimony is silent on the aspect that he had accompanied the decoy customer Mahipal Singh / PW 9 as a shadow witness.
20 PW 6 HC Ram Kanwar is another member of raiding team. His testimony regarding the raid conducted on 30.4.04 is in consonance with that of PW 9. He did not depose specifically about the various articles which were recovered and seized at the spot. He deposed that the FIR was got registered through him. He did not identify the accused persons. 21 PW10 Retd ACP SR Yadav is the Inspector under whose supervision the raid was conducted. He also deposed about the factum of raid conducted on 30.9.04 in the office of Fortune Credit Preet Vihar in consonance with that of PW 9. He identified the accused persons namely Lalit Bansal and Rajiv Gupta and also stated that Indica car of accused Rajiv Gupta which was parked in the parking was also checked and from its dashboard some stamps were recovered which were seized by PW 9.
22 PW 1 Vivek Ghera is a witness from HDFC Bank who deposed that in September 2004 he was working as Area Risk Manager in HDFC Bank and was enquired by the police regarding their DSA namely Fortune Credit, if it was working with HDFC Bank or not. He had confirmed that Fortune Credit was DSA of HDFC State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 11 of 34 Bank. This witness was declared hostile and cross examined on behalf of State but he showed his inability to recollect if any enquiry was made from him regarding accused Lalit Bansal and if he was running the firm in the name of Fortune Credits. 23 PW 2 Ram Singh is a witness from SBI who proved a letter dated 4.2.05 (Ex. PW 2/A) by identifying the signatures of Sh. S P Mendiratta, the then Manager, Personal Banking Division. 24 PW 4 HC Mahesh Chand is a formal witness being duty officer who proved the registration of present FIR as Ex. PW 4/A and endorsement made on the rukka as Ex. PW 4/B. 25 PW 5 Murlidhan Palani is a witness from Income Tax Department. He deposed that in the year 2005 as Inspector, IT Department he had joined the investigation in the case of one Anil Kumar Srivastav who was later arrested by crime branch. The IO of the said case had shown him ceretain stamp impressions taken on certain sheets. After observing the seal impressions he found discrepancies in the same like non mentioning of ward number etc . He was also shown one Saral Form ITS 2D in which particulars were not filled up. In the said form also no ward no. was mentioned prefixed to the no.7576. After observing the said seals and the form (Ex. P1 to P5) he opined that apparently the stamps whose impressions had been shown to him as well as the form were not genuine and were bogus. He was cross examined on behalf of the State and State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 12 of 34 during cross examination he was shown certain sheets of paper which are Ex. P5 to P10 and was suggested that these papers were shown by the IO on which he had given the opinion that the stamps were bogus. However, he failed to identify the said documents and stated that he did not remember what documents were shown to him by the IO.
26 PW 7 AB Prasad is a witness from Canara Bank who deposed that in the year 2005 he was working at SSI Branch, Canara Bank, Wazirpur Delhi as a Sr. Manager. His branch had received a letter from the office of Crime branch. In reference to the said letter he had given his reply Ex. PW 7/A to the effect that the name of their branch was SSI Branch whereas on the stamp Ex. PA, only S Branch was mentioned. He also stated that stamp of their branch was fixed on incometax challan no.11021 Ex. PB but their branch was not authorised to collect tax. The size and shape of the stamp on Ex PA and PB did not resemble the stamp used by them in their branch and accordingly the stamp seals on these documents were not of their branch.
27 PW8 Dr. Ravinder Sharma is the Dy. Government Examiner of questioned documents/ CFSL Shimla. He stated that the documents of the present case were received in the laboratory through ACP EOW vide letter dated 2.11.04 alongwith the State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 13 of 34 questioned documents Ex. PW 8/A to D (Q1 to Q6) and specimen writings/impressions Ex. PW 8/E to H (mark S1 to S4). He examined the said documents and gave his opinion dated 10.12.04 which is Ex. PW 8/I as per which the writing in the enclosed portion stamps and marked Q1 , Q3, Q4, Q6 and S1 to S3 were all written by one and the same person. However, he could not express any opinion on stamp impression mark Q2 and Q5 in comparison with the stamp impression mark S4. He proved the detailed reasons given by him in support of his opinion as Ex. PW 8/J. 28 PW 11 HC Manoj is a formal witness being MHCM PS Preet Vihar. He produced the register no.19 vide which the case properties of the present case were deposited at Madh No.1992 /04 (Ex. PW 11/A). He also produced one road certificate bearing no.23/21/17 vide which the case property of the present case was handed over to Distt Nazir which is Ex. PW 11/B and a letter regarding disposal of the case property of the present case which was issued by Ld. ACMM which is Mark X1.
29 PW 13 is the IO of the case Inspector Keshav Mathur. He deposed that on 30.9.04 he was instructed by Sr. Officer to go to Preet Vihar Commercial Complex where a team of police officials had conducted a raid and 3 persons had been State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 14 of 34 apprehended. He was also informed that SI Ashok had already sent rukka for registration of FIR. He went to the spot where SI Ashok handed over to him certain documents with seizure memos, complainant Mahipal Singh and apprehended persons namely Lalit Bansal, Rajiv Gupta and Amit Arya (since discharged). In the mean while Ct. returned back after registration of FIR and handed over copy of FIR and original rukka to him. He took up the investigation, one Indica car of white color bearing registration no.HR 01 K0333 of accused Lalit was found parked outside the commercial complex. He searched the said car on which certain rubber stamps and certain incriminating dcuments were recovered from the dashboard of the said car. The car was seized vide memo Ex. PW 10/J. The recovered stamps and documents (Ex. A1 to A11) were seized vide memo Ex. PW 13/A. Thereafter he recorded the disclosure statement of apprehended accused persons which are Ex. PW 3/H (Accused Lalit Bansal) and Ex. PW 3/F (Accused Rajiv Gupta).
30 Accused Rajiv Gupta disclosed the name of Rajiv Sharma from whom he used to get documents prepared. Pursuant to his disclosure, accused Rajiv Gupta led the police party to the house of accused Ravi (since deceased) in Laxmi Nagar from where accused Ravi was apprehended and interrogated. From the computer found in his house, print outs of certain documents State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 15 of 34 (Ex.B1 Colly) were taken out and were seized vide memo Ex. PW 13/B. Certain blank bank statement formats of Bank of India, SBI, PNB, Vijaya Bank, Allahabad Bank, Punab and Sind Bank and OBC (Ex B2 Colly) were also recovered from the house of accused Ravi Sharma (since deceased) which are Ex. PW 13/B. Thereafter, he recorded the disclosure statement of accused Ravi Sharma who disclosed about involvement of accused Krishan Kumar.
31 Pursuant to the said disclosure statement they went to the house of accused Krishan Kumar where accused Krishan Kumar met them and was interrogated and cursory search of his room was taken. One computer was found lying on a table which, when checked, was found to contain certain material. The said computer was seized vide memo Ex. PW 3/A. On checking the drawer of the computer table it was found containing rubber stamps belongings to various bank and income tax branches and a bunch of papers partially filled with some stamps. The same were also taken into police possession. He took specimen impression of rubber seals / stamps which are Ex. P1 to P5 and seized the stamp sand documents vide memo Ex. PW 3/D. The recovered loose sheets paginated 1 to 46 Ex. P9 (colly) were also seized. He recorded the disclosure statement of accused Krishan Kumar State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 16 of 34 which is Ex. PW 3/J who disclosed the name of Narender Pal Singh as his associate who was providing the stamps. 32 Thereafter he alongwith the staff and accused persons went to the residence of accused Narender Pal Singh at Sant Nagar Burari where he was apprehended and interrogated and from the table in his room 24 rubber stamps of bank and income tax offices and 19 leads (the number which is used in the stamp) were recovered. He took their stamp impression on 6 sheets which are Ex. PW 13/C and seized them vide memo Ex. PW 3/E. He recorded the disclosure statement of accused Narender Pal Singh (Ex. PW 3/K). Thereafter, they returned back to the office of EOW.
33 He arrested and personally searched the accused persons vide memo Ex. PW 13/D to N. He obtained specimen hand writing of accused Ravi Sharma (since deceased) which is Ex. PW 8/E to G. He sent letters to various banks for verification of documents recovered and received their replies. He also sent documents to GEQD Chandigarh alongwith specimen hand writing of accused Ravi Sharma (since deceased). He recorded statement of witnesses and after completion of investigation he filed the charge sheet.
STATEMENT OF ACCUSED 34 Statement of all the accused persons U/s 313 Cr. PC has been recorded on 04.06.2019 wherein the entire incriminating State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 17 of 34 evidence produced on record was put to them. They denied all the allegations and stated that they had been falsely implicated in this case.
35 Accused Lalit Kumar stated that the police officials had falsely implicated him in this case in order to solve their case. On 30.9.04, he was sitting at his office when some police officials had come to him and asked him to accompany him to EOW Cell where he was interrogated by the police and was implicated in this case without any evidence against him.
36 Accused Rajiv stated that he was called at EOW office by police officials where he was forced to sign some blank papers and some written papers and was falsely implicated in this case without any evidence. The entire case was false and was prepared at EOW Cell.
37 Accused Krishan Kumar stated that he was falsely implicated in this case by the police officials in order to solve their case. He was lifted from his house and taken to EOW Cell where he was forced to sign some written and some blank papers and was falsely implicated in this case without any evidence against them.
38 Accused Narinder Pal stated that he was falsely implicated in this case by the police in order to solve their case. DEFENCE EVIDENCE OF ACCUSED 39 Accused persons did not examine any witness in support of State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 18 of 34 their defence.
40 Final argument have been heard. Record carefully perused. Judicial Resolutions 41 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
42 In the present case accused persons have been charged with the offence u/s 420 IPC. The offence of cheating is defined u/s 415 IPC. The following ingredients are required to be proved for convicting a person for the offence of cheating. i. Deception of any person.
ii. (a) Fradulently or dishonestly inducing that person:
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property, or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 19 of 34 deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
43 In Mohd. Ibrahim vs. State of Bihar 2009 (8) SCC 751, it has been held that the Penal Code defines 'fradulently', an adjective form of the word "fraud", in section 25, as follows : "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
44 The term "fraudulently" is mostly used with the term "dishonestly" which is defined in section 24 as follows: "Whoever does anything with the intention of causing wronglful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences.
45 In Devender Kumar Singla v. Baldev Krishan Singla, (SC) 2004 (2) J.T.539 : 2004 Cri.L.J. 1774, it has been observed that, " Section 420 deals with the cases whereby the deceived person is dishonestly induced 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. Section 415 defines "cheating". The said provision requires, (i) State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 20 of 34 deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the secoond and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to atract Section 420 are : (i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420, (also in Bashirbhai Mohamedbhai vs. State of Bombay (AIR 1960 SC 979)."
46 It was also observed in Shivanaryan Kabra vs. State of State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 21 of 34 Madras (AIR 1967 SC 986) that it is necessary that a false pretence should be made in express words by the accused. It may be inferred from all the cirucmstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn. 47 In another judgment G.V.Rao vs. L.H.V. Prasad and Others, 2000 (2) RCR (Crl.) 290, the Hon'ble Supreme Court of India held as follows: " As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575, a guilty intention is an essentila ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad vs. State of W.B., AIR 1954 SC 724, that in order to consitute the offence of cheating, the intention to State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 22 of 34 deceive should be in existence at the time when the inducement was offered".
48 In addition the accused persons have been charge sheeted for offences u/s 468/471/473/474 IPC all of which are concerning offence of forgery. The term forgery is defined in Section 463 IPC as per which the essential ingredients for the offence of forgery are:
(1) the document or part of the document must be false; (2) it must have been made dishonestly or fraudulenty in one of the three modes specified in Section 464 IPC; and (3) it must have been made with intent :
(a) to cause damage of injury to the public or any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property: or
(d) to cause any person to enter into an express or implied contract; or
(e) to committ or that fraud may be committed.
49 Section 464 IPC provides that a person makes a false document if he Clasue 1 (1) dishonestly or fraudulent makes, signs, seals or executes a document, or part of a document, or makes any mark denoting gthe execution of a document; and (2) does as above with the intention of causing it to believe that State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 23 of 34 such document or part of a document made signed, sealed or executed,
(a) by or by the authority of a person by whom or by whose aurthority it was not so made, signed, sealed or executed, or
(b) at a time at which he knows that it was not made, signed, sealed or executed Clause 2 This clause reqquires dishonest or fraudulent cancelation or alteration of a document in any material part without lawful authroity after it had been made or executed by a person who may be living or dead.
Clause 3 This clause requires that a person must fraudulently or dishonestly cause any person to sign, seal, exeucted or alter a document knowing that such persons could not by reason of unsoundness of mind or intoxication or deception knows the contents of the document or the nature of alteration. 50 Section 468 IPC provides punishment when forgery is committed intending that the document or electronic record forged shall be used for the purposes of cheating. 51 Section 471 IPC punishes the use of a forged document or electronic record as genuine when a person knows or believes it to be a forged document.
52 Section 473 IPC provides punishment for a person who makes State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 24 of 34 or counterfeits any seal, plate or other instrument for making an impression intending that the same shall be used for the purposes of committing any forgery punishable under this Act. It also provides punishment for possession of any such seal, plate or other instrument knowing the same to be counterfeit with such an intent i.e. for committing any forgery. 53 Section 474 IPC provides punishment for possession of any document or any electronic record, knowing the same to be forged and intending to use the same fraudulently or dishonestly as genuine.
54 In the light of the above mentioned provisions of law and decisions of the superior courts regarding the offences / description of offences, for which accused persons have been charged, let us now examine the evidence that has come on record qua the accused persons.
55 In the present case, accused Rajiv Gupta and Lalit Bansal have been charged for offence u/s 420/34 IPC with the allegations that they, in furtherance of their common intention, had dishonestly cheated Mahipal Singh/ PW 9 by stating that they would make available forged bank statement and IT Returns of two years in the name of Mahipal Singh for obtaining housing loan from HDFC Bank and took a sum of Rs.4800/ from him. The testimony of Mahipal Singh who has been examined as PW 9 on these allegations is most relevant. As State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 25 of 34 per the case of the prosecution it is PW 9 Mahipal Singh who has been deceived by these two accused persons by fraudulent and dishonest inducement given to him. As per the testimony of PW 9 on 24.9.2004, one Amit had introduced him to accused Rajiv Gupta in his office at Preet Vihar. Earlier Amit had informed him that he can arrange loan for him on some percentage basis. On 27.9.04, he again visited the office of Rajiv Gupta alongwith Amit where accused Rajiv Gupta demanded Rs.6000/ from him for preparing fake documents i.e. his ITR and bank statement and identification proof so that loan can be sanctioned in his favour. Deal was finally struck at Rs.4800/. This testimony of PW 9 clearly brings on record the fact that the deal between him and accused Rajiv Gupta was for arranging fake documents including his ITR Bank Statement and ID Card. This statement does not reflect any kind of inducement being offered by accused Rajiv Gupta to the complainant . Rather, it gives an impression that complainant was very well aware that he was getting prepared forged/ fake documents for the purposes of obtaining loan from HDFC Bank. In these circumstances, the question of his having been cheated by the accused persons does not arise. PW 9 had himself agreed to enter into a contract with the accused persons for arranging fake documents and there does not appear to be any dishonest or fraudulent inducement flowing from the accused to State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 26 of 34 him. It is not the case of PW 9 that the accused persons had induced him to get the fake documents prepared in any manner. Rather, his deposition is to the effect that he negotiated with the accused persons for arranging the fake documents for the purposes of obtaining loan. The inducement offered to PW 9 that loan can be arranged in his favour, has also not flowed from either of these two accused persons. Rather, the allegations qua this inducement is against one accused Amit who is already discharged vide order dated 12.06.2007. Accordingly, accused Rajiv Gupta and Lalit Bansal cannot be convicted for offence u/s 420 IPC when the only transaction evident from evidence of PW 9 is an illegal transaction of arranging fake documents by them for PW 9. The essential ingredients of offence of cheating as defined in Section 415 IPC are clearly missing in the transaction. Accordingly, accused Rajiv Gupta and Lalit Bansal are entitled to acquittal for offence u/s 420/34 IPC. 56 Accused Lalit Bansal and Rajiv Gupta have also been charged for offence u/s 471 IPC with the allegations that on 30.9.04 they had handed over certain documents i.e. Bank Statement and IT Returns to Mahipal Singh stating them to be genuine which they knew or had reasons to believe that the same were false and fabricated bearing stamps of Income Tax Department and Bank. From the deposition of PW 9 it is clear that he had not made any allegations to the effect that he was handed over Bank State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 27 of 34 Statement and ITR by the accused persons stating them to be genuine. Rather, from his testimony it is absolutely clear that he had contracted with the accused persons for arranging fake documents for obtaining loan and had received fake documents from them. Infact, as per his testimony, he was handed over documents i.e. one ITR and bank statement in the name of one Kapil Motwani and one ID Card of Kapil Motwani bearing his photo which was allegedly prepared by accused Rajiv Gupta. Such documents, even if handed over to PW 9 stating that they are genuine, cannot be accepted as genuine by him as they were bearing his name but some one else's photograph. In the absence of any such deposition regarding the documents having been handed over to PW 9 alleging them to be genuine documents, the essential ingredients of offence u/s 471 IPC cannot be said to have been proved on record beyond any reasonable doubt. Both the accused persons namely Rajiv Gupta and Lalit Bansal, thus, cannot be convicted for offence u/s 471/34 IPC as charged against them.
57 The other charges against the accused persons are regarding possession of certain forged documents including IT Returns and bank statements as well as certain counterfeit stamps. Before convicting the accused persons for said offences u/s 468/473/474 IPC and before examining whether the recovered articles/ stamps/ documents were fake/fabricated or not, the State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 28 of 34 prosecution was required to prove beyond any reasonable doubt the recovery of such articles from the possession/ at the instance of the accused persons. Let us now examine the evidence of recovery brought on record by the prosecution. There are five witnesses to the alleged recoveries who have been examined by the prosecution i.e. PW 3 HC Omkar Singh (who was a shadow witness as per the case of the prosecution), PW 6 HC Ram Kumar (a member of the raiding team), PW 9 Mahipal Singh (who was a decoy customer as per the case of the prosecution), PW 12 Inspector Ashok Kumar (who is the first IO/ complainant in the present case) and PW 10 Retd ACP SR Yadav (under whose supervision the raid was conducted). In addition, certain recoveries which have been effected from other accused persons, other than Rajiv Gupta and Lalit Bansal, PW 13/ second IO Inspector Keshav Mathur is a witness to the said recoveries. Let us now examine the testimony of these witnesses regarding the recoveries effected. 58 PW 3 is a member of initial raiding team. This witness has not deposed about the manner in which the recoveries were effected and the sequence in which the accused persons have been apprehended. He has also not deposed about the places from where and the things of which recoveries were effected from various accused persons. He has simply identified his signatures on various seizure memos but could not depose State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 29 of 34 about the recoveries and the seizures made. As per the case of the prosecution PW 3 was also a shadow witness who was sent alongwith PW 9 to the office of the accused Rajiv Gupta on 30.9.04 but he did not depose about his role as a shadow witness. In these circumstances, his deposition as PW 3 is of little use to the prosecution in order to prove the recoveries effected at the instance of various accused persons. 59 PW 6 HC Ram Kanwar is another police witness who had joined the raiding party on 30.9.04. He deposed about the manner in which the raid was conducted in the office of accused Rajiv Gupta but merely deposed about the recoveries of numbari notes from the possession of accused Rajiv Gupta. His deposition regarding any other recoveries made from any of the accused persons of any documents, computer or stamps is absolutely silent. Accordingly, deposition of even, this witness is of no use to the prosecution for proving the recoveries of forged documents and fake rubber stamps at the instance or from the possession of any of the accused persons.
60 PW 9 Mahipal Singh is the decoy customer. This witness has deposed about the incident of handing over of forged documents to him by accused Rajiv Gupta and about him giving Rs.4300/ to accused Rajiv Gupta for procuring the said documents. However, this witness was not able to identify accused Rajiv Gupta. He also deposed that the documents State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 30 of 34 handed over to him were in the name of one Kapil Motwani and even the I Card was in the name of Kapil Motwani having his photograph affixed on it. However, none of these documents have been identified on record. Rather, the testimony of first IO/ PW 12 on this aspect is contradictory to the testimony of PW 9 as according to PW 12 fake bank account statements and ITRs in the name of Mahipal Singh (and not Kapil Motwani) were actually handed over to PW 9 by accused Rajiv Gupta. These fake statements / ITR have been identified by PW 12 as Ex. PW 12/A1, Ex. PW 8/A, Ex. PW 8/B, Ex. PW 8/C and Ex. PW 8/D which were seized vide memo Ex. PW 10/D. Accordingly, these contradictions and non availability on record of the documents which were allegedly handed over to PW 9 by accused Rajiv Gupta as per his testimony is sufficient to create a doubt on the entire testimony of PW 9. In addition, testimony of PW 9 is silent about recoveries effected from other accused persons. He has not deposed being a part of any further investigation with the police party after the raid of 30.9.04. He is also not a witness to any further recoveries as per his testimony. Accordingly, even his testimony is of no use for proving the recoveries effected from other accused persons. 61 The first IO/ complainant Inspector Ashok Kumar who is examined as PW 12 is again only a witness to the raid conducted at the office of Rajiv Gupta on 30.9.04. He has State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 31 of 34 deposed about the seizure of documents produced before him by the decoy customer / PW 9 as the fake documents which were handed over to him by accused Rajiv Gupta vide seizure memo Ex. PW 10/D. Interestingly, as discussed above, even this testimony is in contradiction to that of PW 9 regarding the documents allegedly handed over by accused Rajiv Gupta to PW 9. This witness was not a part of further investigation conducted by second IO Inspector Keshav Mathur/ PW 13 pursuant to which the alleged recoveries have been effected from other accused persons.
62 In these circumstances, the only witness who talks about recoveries of various forged documents/ fake stamps / computer printouts, recovered at the instance of various accused persons is the second IO Inspector Keshav Mathur/ PW 13. His testimony is not corroborated by the deposition of any other witness as discussed above. He is a single witness to the alleged recoveries effected from various accused persons. He is a police witness and the IO of the case. Accordingly, it is not safe to rely on his uncorroborated testimony regarding the alleged recoveries. Moreover, the recovered articles have not been duly identified on record. Certain blank stationery of various banks have been shown to have been recovered from the house of accused Ravi Sharma (since deceased) but during evidence, these documents were not available on judicial file or State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 32 of 34 police file. They were produced separately without any marking of the present case. Even the seizure memo or list of documents filed alongwith the charge sheet did not mention the number of pages of the said documents. Similarly, computers seized have not been sent to FSL, the alleged print outs taken have not been matched with any seized computer. The deposition of PW 13 is also not very clear as regards the dates and timings on which the recoveries have been effected. There is no evidence on record to show that the accused persons were actually in possession of the premises from which the recoveries have been allegedly effected. There are no independent public witnesses or neighbour deposing about the alleged recoveries. With these contradictions on record, it is difficult to convict the accused persons on the basis of recoveries effected which are solely deposed about by PW 13. The contradictions discussed above coupled with uncorroborated sole testimony of PW 13 as regards the alleged recovery is sufficient to create a doubt on the entire recovery proceedings. When the recoveries itself are doubtful, the accused persons cannot be convicted for offences charged even if the alleged recovered stamps, documents are proved to be false/ fabricated.
63 In view of the reasons given above and considering the over all evidence on record, I have no hesitation holding that evidence on record is highly insufficient for convicting the accused State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 33 of 34 persons for offence charged against them. Accordingly, all the accused persons namely Rajiv Gupta, Lalit Bansal, Krishan Kumar and Narender Pal Singh are acquitted for offences u/s 420/468/471/473/474/34 IPC as charged against them. 64 File be consigned to record room.
ANNOUNCED IN THE OPEN COURT Digitally signed by
SHIVALI SHARMA
ON 11.09.2019 SHIVALI Location: East District
Karkardooma Courts
SHARMA Delhi
Date: 2019.09.11
16:47:26 +0530
(SHIVALI SHARMA)
CMM (EAST)/KKD/ 11.09.2019
Certified that this judgment contains 34 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/ 11.09. 2019 State vs. Rajiv Gupta and Anr. FIR No. 503/04 Page 34 of 34