Delhi District Court
State vs . AtaUrRehman Etc. on 21 February, 2009
IN THE COURT OF SH. DIG VINAY SINGH, LD. ACMM03 (EOW) ROHINI
COURTS, DELHI
STATE VS. ATAurREHMAN etc.
FIR no. 442/05
U/S: 440/120B IPC
PS : New Friends Colony (EOW)
21/02/2009
ORDER ON CHARGE
1.Brief facts of this case are that complainant Noor Bano lodged a complaint specifically naming accused AtaurRehman allegeing that she came in contact with AtaurRehma through one Feroz and she wanted to purchase a flat therefore AtaurRehman initially had shown flat no. 10A, Ground Floor, DDA Flats, Jafrabad and a total consideration of Rs. 4,48,007/ as cost of the flat along with a sum of Rs. 75,000/ as commission of AtaurRehman was agreed. The complainant made payment by way of bank draft to the tune of Rs. 4,48,007/ and also gave Rs. 75,000/ to AtaurRehman as commission. Demand Draft of Rs. 4,48,007/ was allegedly deposited with DDA. It is claimed that amount of Rs. 75,000/ was paid to AtaurRehman by way of withdrawal by two cheques. The complainant alleged that complainant had been pursuing with AtaurRehman for transfer of flat but it was avoided on one pretext or the other.
Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 1 of 13 dtd. 210209
2. After registration of the case during investigation, it was learnt by Investigating Agency that in this transaction certain documents regarding sale of property were executed by the accused Mohini Devi in favour of complainant i.e. Special Power of Attorney for taking physical possession and SPA dated 01112004. But the accused Mohini Devi very cleverly mentioned flat no. as 14D, First Floor, PocketA, Zafrabad, Delhi instead of flat no. 14B, First Floor, PocketA, Zafrabad, Delhi. It is claimed that Prem Nath is the husband of Mohini Devi and he stood as witness on these documents. The case of the prosecution thus, in nutshell, is that complainant was shown one flat number 10A, Ground Floor, DDA Flats, Jafrabad, Delhi and deal was fixed for Rs. 4,48,007/ as consideration of the property and Rs. 75,000/ as commission of accused AtaurRehman but subsequently the complainant was given documents of flat no. 14D, First Floor, PocketA, Zafrabad, Delhi. It has also come in investigation that in favour of Mohini Devi flat no. 14B, First Floor, PocketA, Zafrabad, Delhi was allotted by DDA and all three accused in order to cheat the complainant deliberately mentioned wrong flat number as 14D on the documents executed in favour of complainant. It is also the case of Investigating Agency that complainant deposited a total sum of Rs. 3,59,257/ by way of 8 Demand Drafts on various dates which were directly deposited with DDA towards installments of cost of flat no. 14B. This payment was made by the complainant through DD directly in the DDA. The Investigating Agency/Prosecution say that dishonest intention of all the three accused is clear from the fact that despite receipt of payment no property was Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 2 of 13 dtd. 210209 transferred nor money was refunded and deliberately the wrong plot number was mentioned on the documents.
3. Counsel Sh. Naresh Gupta for accused AtaurRehman conceded to framing of charge against him and counsel Sh. Munish Chokkar for the remaining accused has advanced arguments stating that against accused Mohini Devi and Prem Nath no offence is made out and no charge can be framed. It is argued that at the most while executing the documents of sale of property, these two last mentioned accused by mistake put the property as 14D instead of 14B and this is nothing more than a typographical error and there is no dishonest intention. He also argues that challan vide which payment has been deposited in the DDA mentioned the correct number of the plot 14B therefore both Mohini Devi and Prem Nath be discharged.
4. Dishonest intention of an accused is a mental element and the prosecution cannot be expected to come up with direct positive evidence regarding dishonest intention of an offender. Prosecution would quite often rely on circumstantial evidence in such cases. Similarly, conspiracy are hatched in secrecy and direct evidence of conspiracy seldom comes and the factum of conspiracy has to be gathered from all relevant circumstances that may be during the transaction or even in some cases after the transaction is over. Conspiracy can be proved by direct evidence also and by circumstantial evidence also.
5. Law regarding considerations at the stage of charge is wellsettled now. The court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 3 of 13 dtd. 210209 has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a provable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame a charge , though for conviction the conclusion is required to be that the accused has committed the offence. At the stage of framing of a charge probative value of the materials on record cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S. 227 or S. 228 of the code. At that stage the Court is not to see whether there is Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 4 of 13 dtd. 210209 sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage if their is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the investigating agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. Reliance placed on the cases of Union of India vs. Prafulla Kumar AI R 1979 Supreme Court 366 :
State of Maharashtra and others vs. Som State of Bihar v.
Nath Thapa and others JT 1996 (4) SC 615 ;
Ramesh Singh, AI R 1977 S C. 2018: (1 977 CRI LJ 1606) ; Umar
Abdula Sakoor Sorathia vs. Intelligence officer narcotic control bureau JT 1999 (5) SC 394 ; Kallu Mal Gupta vs. State 2000 I AD Delhi
107.
3. In Bhagwan Swarup v. State of Maharashtra, (1964) 2 SCR 368 : AIR 1965 SC 682; it was observed as follows;
Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 5 of 13 dtd. 210209 "The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence; it can be established by direct evidence or by circumstantial evidence."
4. In Baburao Bajirao Patil v. State of Maharashtra, (1971) 3 SCC 432, apex Court observed that there is seldom, if ever, that direct evidence of conspiracy is forthcoming. Conspiracy from its very nature is conceived and hatched in complete secrecy, for otherwise the whole purpose would be frustrated.
5. In Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609 : AIR 1988 SC 1883 , it was observed that Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same object and/or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is, however, Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 6 of 13 dtd. 210209 essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
6. In Nazir Khan v. State of Delhi, (2003) 8 SCC 461 : AIR 2003 SC 4427 : JT 2003 (Supp) 1 SC 200, it is observed : that it is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
7. In State through Superintendent of Police, CBI/SIT v. Nalini and Ors. JT 1999 (4) SC 106 it is observed by hon'ble apex court as follows;
"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 7 of 13 dtd. 210209 drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
8. In K. R. Purushothaman v. State of Kerala AIR 2006 SUPREME COURT 35 = 2005 AIR SCW 5437 it is observed that "To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 8 of 13 dtd. 210209 objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the wellknown rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement."
9. It is held in Noor Mohd. v. State of Maharashtra, AIR 1971 SC 885 that:
"...in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors constitute relevant material."
10. Ram Narain Poply v. Central Bureau of Investigation AIR 2003 SUPREME COURT 2748 = 2003 AIR SCW 3119 Per Majority (Arijit Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 9 of 13 dtd. 210209 Pasayat, J. (for himself and on behalf of B. N. Agarwal, J.)) it was observed that , In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in S. 120B read with the proviso to subsection (2) of S. 120A, then in that event more proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under S. 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in S. 120B. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 10 of 13 dtd. 210209 series of acts he would be held guilty under S. 120B of the I.P.C.
11. In Ajay Agarwal v. Union of India and others, (JT 1993 (3) SC
203)= AIR 1993 SC 1637 : 1993 AIR SCW 1866 : 1993 Cri LJ 2516 It was held "3 . . . . . . . . . . . .It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements : (1) agreement; (2) between two or more persons by whom the agreement is effected: and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects."
12. In Yash Pal Mittal v. State of Punjab, ((1977) 4 SCC 540) the rule was laid as follows (SCC p. 543 para 9) : AIR 1977 SC 2433 : 1978 Cri LJ 189 at p. 2436 of AIR para 9 "The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 11 of 13 dtd. 210209 in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators."
6. In the present case, the very fact that a wrong plot number was mentioned on the documents executed in favour of complainant reveals dishonest intentions of the three accused. Dishonest intention is also clear from the fact that till date neither property has been transferred nor payment has been paid back. The contention of Ld. Counsel for accused Mohini Devi and Prem Nath that mentioning of wrong plot number on the documents was a typographical error does not find favour from simple fact that had it been a typographical error, the accused persons would have taken necessary steps to rectify the same as soon as it came to their knowledge but till date neither any rectification of that error has been made nor money is returned and even the flat is not transferred. These facts prima facie reveal sufficient material of conspiracy and dishonest intention of all the three accused which is prima facie sufficient to frame charges against the Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 12 of 13 dtd. 210209 three accused. Let charges u/s 420/120B IPC be framed against all the three accused.
(DIG VINAY SINGH) ACMM03(EOW) ROHINI / DELHI / 21/02/2009 Order on Charge /State Vs. AtaurRehman/ FIR no. 442/05 PS: New Friends Colony ( EOW) page 13 of 13 dtd. 210209