Delhi District Court
Ashok Kumar vs The State Of Nct Of Delhi on 16 March, 2024
DLST010048762023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL No. 136/2023
IN THE MATTER OF:
Preeti Sharma (Daughter of the Complainant)
D/o Late Sh. Ashok Sani and Smt. Anita Saini,
W/o Rakesh Sharma
R/o H.No. 15/205, 3rd Floor,
Malviya Nagar,
New Delhi-110017.
..............Appellant
Versus
(1) State
(2) Ashok Kumar
S/o Late Sh. Raghubar Dayal
R/o 15A, Left Side Ground Floor,
Ashoka Enclave, Main Faridabad,
Haryana.
(3) Sanjay Kumar
S/o Late Sh. Rajbir Singh
R/o 109, Begumpur,
Malviya Nagar,
New Delhi-110017.
..............Respondents
Instituted on :24.05.2023
Reserved on : 17.02.2024
Pronounced on :16.03.2024
CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 1 / 22
CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi)
Digitally signed
by SUNIL
SUNIL GUPTA
Date:
GUPTA 2024.03.21
17:30:49
+0530
And
CRIMINAL APPEAL No. 314/2023
IN THE MATTER OF:
Ashok Kumar
Flat No. 15, Left Side,
Ground Floor, Ashoka Enclave,
Main Faridabad,
Haryana.
..............Appellant
Versus
State (NCT of Delhi)
...........Respondent
Instituted on : 01.11.2023
Reserved on : 17.02.2024
Pronounced on : 16.03.2024
JUDGMENT
1. Vide this common judgment, I shall dispose of instant two appeals preferred by Smt. Preeti Sharma and Mr. Ashok Kumar respectively against the judgment dated 24.03.2023 passed by Ld. ACMM (South) in Cr. Case No. 2035196/2016 titled as State Vs. Ashok Kumar & Anr. pertaining to FIR No. 233/2010, U/s 420/168/34 IPC, PS Malviya Nagar whereby Mr. Ashok Kumar was convicted for the offence 168 IPC however, he alongwith Mr. Sanjay Kumar was acquitted for the offence U/s 420/34 IPC. Mr. Ashok Kumar is additionally challenging the order on sentence dated CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 2 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2024.03.21 17:30:57 +0530 03.10.2023 of Ld. ACMM (South) whereby he was released on probation of good conduct for three months on furnishing a bond with one surety for a sum of Rs.10,000/-. He was also directed to deposite with Rs.5000/- in lieu of expenses incurred by prosecution in pursuing this case. For the sake of convenience, parties shall be referred to by their status before Ld. Trial Court.
2. Brief facts as per record are as under:-
FIR No. 233 was lodged for the offence u/s 420/34 IPC on 06.06.2010 against accused Ashok Sharma (who was stated to be working as ASI in Delhi Police) and Sanjay Kumar on the basis of written complaint of Smt. Anita Saini (she is stated to have expired last year). It was alleged therein that she alongwith her husband and one unmarried daughter was residing at 307, Hari Nagar, Ashram, New Delhi. It was alleged that she was willing to purchase an immovable property and for that, she had managed to collect some funds after pooling in her entire life savings including cash, jewelery and other assets. She allegedly borrowed a sum of Rs. 2 lacs from a private financer who was charging a sum of Rs.8,000/-
per month as interest. After collecting a sum of Rs. 8.5 lacs in total, she purchased a one room flat on first floor from accused Ashok Kumar (he has been referred to as Ashok Sharma at several places in the complaint as well as during trial, however he is being referred to as Ashok Kumar through out this appeal to avoid confusion) in a building at Khirki Extension, Malviya Nagar which he was constructing in the year 2009. It was alleged that her son-in-law Mr. Rakesh Sharma (husband of Ms. Preeti Sharma who is CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 3 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:31:06 +0530 representing her in the appeal as an advocate) was well known to accused Ashok Kumar. It was alleged that accused was introduced to her by Mr. Rakesh Sharma and on his faith, she made the payment of Rs. 8.5 lacs to him as an advance for the flat on 28.02.2009 at his residence at PTS, Malviya Nagar. At the time of signing the agreement, Mr. Ashok Kumar told that as he was working in Delhi Police so, he was not authorized to sign the agreement as a builder. Hence, his assistant Mr. Sanjay Kumar was made to sign the contract. The total consideration was Rs.10.5 lacs and balance consideration was to be given at the time of possession which was scheduled on 31.05.2009. The agreement was signed by the complainant as well as accused Sanjay Kumar which was allegedly witnessed by Mr. Prakash Singh Negi and accused Ashok Kumar. It was alleged that even after lapse of around one year, neither she was handed over the possession of the flat nor her amount was returned. It was alleged that accused Ashok Kumar was continuously threatening her and her son-in-law that he will either involve him in a false case or use his contacts to ruin their life in case he was again contacted for money. Accused Ashok Kumar was allegedly taking advantage of being a Delhi Police official. On receiving this complaint, an inquiry was conducted by ACP Hauz Khas wherein he came to the conclusion that the allegations against accused Ashok Kumar had been substantiated. His report in this regard was put up before DCP (South) for permission to register a case against accused Ashok Kumar and Sanjay Kumar which was granted. After registration of FIR, investigation was conducted and charge-sheet was filed on 06.05.2011 against accused Ashok Kumar for the offences u/s 420/168/34 IPC. Accused Sanjay Kumar was charge-sheeted for the offence U/s 420/34 IPC. After taking cognizance, CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 4 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2024.03.21 17:31:13 +0530 Ld. Magistrate summoned both of them on the same day for 14.09.2011. After considering the material on record and submissions from both the sides, charge for the offences U/s 168/420/34 IPC was framed against Ashok Kumar whereas charge for the offence U/s 420/34 IPC was framed against accused Sanjay Kumar to which they pleaded not guilty and claimed trial. The prosecution examined following 14 witnesses in all to support its case:-
S. Name of Witness Documents proved Role No. Witness to the PW-1 Sh. Prakash
1. - transaction in Singh Negi question Her complaint to police as Ex.PW2/A, Agreement to Sell as Ex.PW2/B, seizure memo thereof as Ex.
2. PW-2 Smt. Anita Saini Complainant PW2/C, photocopy of mortgage agreement dated 31.08.2010 as Ex.PW2/D-
1(OSR) Son-in-law of complainant/ PW-3 Sh. Rakesh
3. - witness to Sharma transaction in question Accompanied Investigating
4. PW-4 HC Bhupender -
Officer Specimen signature of Accompanied accused Sanjay Kumar as Investigating
5. PW-5 HC Guddu Ex.PW5/A (Colly) Officer
6. PW- 6 Ct. Bhagwan Arrest memo of accused Accompanied CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 5 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:31:20 +0530 Sanjay Kumar as Investigating Sahay Ex.PW6/A Officer Arrest memo of accused Ashok Kumar as Ex.PW7/A, his personal search memo as Accompanied
7. PW-7 ASI Rambal Ex.PW7/B, specimen Investigating handwriting/signature Officer sheets of accused Ashok Kumar as Ex.PW7/C (Colly 12 pages) Rukka as Ex.PW8/A PW-8 ASI Pawan
8. (OSR), endorsement on Duty Officer Kumar rukka as Ex.PW8/B Record i.e., register no. 21 pertaining to the year 2011 PW-9 HC Surender
9. containing relevant entry -
Kumar dated 24.01.2011 as Ex.PW9/A(OSR) Had deposited the documents
10. PW-10 HC Manoj - on 24.01.2011 with FSL, Rohini Rukka as Ex.PW11/A, arrest memo of accused Sanjay Kumar as PW-11 Insp. Dheeraj Investigating
11. Ex.PW11/B and Narang Officer disclosure statement of accused Ashok Kumar as Ex.PW11/C Prepared supplement-
ary charge-
12. PW-12 SI Deep Chand -
sheet
containing
FSL result
CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 6 / 22
CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi)
Digitally signed
by SUNIL
SUNIL GUPTA
GUPTA Date:
2024.03.21
17:31:28 +0530
Detailed report no. F.S.L. Assistant
2011/D-0283 as Director
PW-13 Sh. Vijender
13. Ex.PW13/A, Detailed (Documents),
Singh
report no. F.S.L. 2015/D- FSL, Rohini,
1212 as Ex.PW13/B Delhi.
Prepared
supplement-
ary charge-
14. SI Deepak Kumar -
sheet
containing
FSL result.
3. During the course of trial, accused persons admitted the genuineness of proceedings dated 07.12.2010 and 15.01.2011 before Ld. Magistrate qua obtaining their specimen handwritings vide their joint statement dated 29.10.2018.
4. After recording of testimonies of prosecution witnesses, statement of accused persons U/s 313/281 Cr.P.C. was recorded to which accused Ashok Kumar stated that he was roped with oblique motive unnecessarily without even having any relevance with their interse disputes. He stated that he had deposited a sum of Rs. 8.5 lacs for getting bail under fear. He also stated that it was the connivance of complainant and others and even some police officials who involved him falsely in the present case after abusing the process of law. He also stated that he was innocent. He further stated that he should be discharged/acquitted and complainant and others including police officials be prosecuted under appropriate provisions of law without fail. Accused Sanjay Kumar stated that co-accused Ashok Kumar had offered to sell his flat of property no. S-14, Khirki Extension, in lieu of fixed commission as he was a govt. employee, working with Delhi Police.
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He also stated that one day Mr. Ashok Kumar came to his office with Mr. Rakesh Sharma who was introduced to him as his friend. He also stated that Mr. Rakesh Sharma was interested in buying a flat in his property and it was assured that he will pay the full contractual amount within 5 months. He stated that at his behest, he signed the agreement to sell cum receipt on 21.02.2009 and that time, no payment was made to him. He also stated that in good faith and believing Ashok Kumar, he had signed the above stated document. He also stated that para 1 of the agreement pertaining to the receipt of the payment was blank and that same was agreed to be filled as and when remaining payment was made. He stated that handwriting in para 1 pertaining to the receipt of the payment was not his and that he was not paid any amount by the complainant. He further stated that he had been falsely implicated in this case. No witness was examined by accused persons in their defence despite opportunity.
5. After considering the the material on record and rival submissions from both the sides, Ld. ACMM was of the view that prosecution has failed to prove its case U/s 420/34 IPC against accused persons accordingly, they both were acquitted for the same. Accused Ashok Kumar was held guilty for the offence U/s 168 IPC. He was released on probation of good conduct for a period of 3 months. He was also directed to deposit Rs. 5,000/- in lieu of expenses incurred in the prosecution. The judgment dated 24.03.2023 is being assailed by both the parties. Accused Ashok Kumar is additionally assailing the Order on Sentence dated 03.10.2023.
CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 8 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date: 2024.03.21 17:31:42 +0530 6. Arguments heard.
7. It has been argued by Ld. Counsel for appellant Ms. Preeti Sharma that present appeal has been filed by her as the complainant Ms. Anita Saini has expired and Ms. Preeti Sharma is one of her daughters. It has been submitted that definition of victim as provided in Section 2 (wa) Cr.P.C. includes guardian/legal heirs of a person who had suffered any loss or injury, so she was competent to file present appeal U/s 372 Cr.P.C. It has been submitted that inadvertently he has mentioned the provision as Section 378(4) Cr.P.C. and same was considered under Section 372 Cr.P.C. vide order dated 13.07.2023. On merit, it has been submitted that this is a classic case where a police official has cheated an old lady and still he did not get punished for the offence committed by him. It has been submitted that accused Ashok Kumar was throughout living in PTS Colony still investigating agency deliberately did not make any serious attempt to arrest him and proper opportunity was granted him to get anticipatory bail which he failed to obtain from Ld. Sessions Court as well as from Hon'ble High Court. It has been submitted that as soon as investigating agency was left with no other option but to arrest the accused as proceeding U/s 82 Cr.P.C. was already executed against him, he was produced before Ld. Magistrate after arrest. The accused due to fear of being jailed, agreed to handover a sum of Rs. 8.5 lacs to the complainant. It has been submitted that the act of accused in paying that amount to the complainant at the stage itself was sufficient to show that he was the main person behind the entire conspiracy. It has been submitted that accused Sanjay Kumar was merely acting on his instructions and he cannot be blamed for any wrong doing. It has been CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 9 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:31:49 +0530 submitted that the complainant had fought the case before Ld. Trial Court for around 13 years still she could not get justice in her life time as accused Ashok Kumar was wrongly acquitted on the ground that prosecution has failed to prove its case beyond reasonable doubt. It has been submitted that payment was made to him and that he did sign on the agreement to sell as owner because he was not legally allowed to do so due to his govt. service as a Delhi Police official. It has been submitted that complainant has been left high and dry because she was merely paid Rs. 8.5 lacs at the initial stage by the accused Ashok Kumar and that she neither got the flat nor the interest for the period during which money had remained with the accused. It has been submitted that the conclusion drawn by Ld. Trial Court was bad in law. He has prayed for setting-aside the impugned judgment as far as same pertains to acquittal of accused Ashok Kumar and Sanjay Kumar for the offence U/s 420/34 IPC.
8. Ld. Addl. PP for State has submitted that the appeals may be disposed of as per law.
9. On the other hand, Ld. Counsel for accused Ashok Kumar has vehemently opposed the appeal filed by Ms. Preeti Sharma. It has been submitted by him that the present appeal was defective as Mr. Rakesh Sharma who is husband of Ms. Preeti Sharma and son-in-law of complainant Ms. Anita Saini was examined as a witness during trial still he was representing the complainant in the present appeal as an advocate. It has been submitted that this act of Mr. Rakesh Sharma was against the rules CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 10 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:31:56 +0530 of Bar Council. It has been further submitted that Ms. Preeti Sharma could not have filed present appeal as she was not having any locus standi. On merits, it has been submitted that the impugned judgment was correct in acquitting him for the offence U/s 420 IPC as the prosecution has miserably failed to prove its case against him. It has been submitted that there was no material on record showing that accused Ashok Kumar had in any way cheated the complainant. It has been submitted that it is not clear from the testimony of the witnesses as to what was the exact amount agreed between the parties as consideration for alleged transaction, what amount was actually so paid and where the payment was so made. It has been submitted that it was not clear as to who all were present at the time of making alleged payments. It has been submitted that the FSL opinion on record is also inconclusive and is not sufficient to show the involvement of accused Ashok Kumar in the alleged incident. It has been submitted that the payment of Rs. 8.5 lacs made by him at the time of his production before Ld. Trial Court cannot be taken against him as same was paid under fear of being sent to jail which would have entailed drastic consequences for him being a govt. servant. On his appeal, it has been submitted that Ld. Trial Court wrongly convicted him for the ofence U/s 168 IPC on filmsy grounds. It has been submitted that there was nothing on record at all to show that he was involved in any trade. He has prayed that the appeal filed by Ms. Preeti Sharma be dismissed and his appeal be allowed by acquitting him for the offence U/s 168 IPC.
10. Ld. Counsel for accused Sanjay Kumar has also prayed for dismissal of appeal filed by Ms. Preeti Sharma on similar grounds.
CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 11 / 22CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2024.03.21 17:32:04 +0530
11. I have considered the submissions from both the sides alongwith record.
12. At the outset, this Court will first decide the issue of maintainability/any defect in filing the present appeal. Admittedly, FIR in question was registered at the instance of Ms. Anita Saini who is stated to have expired. Ms. Preeti Sharma is stated to be one of her daughters. Although, it has been mentioned in the appeal filed by Ms. Preeti Shrma that same is being filed U/s 378(4) Cr.P.C. however, it was submitted by Ld. Counsel for appellant that same be considered U/s 372 Cr.P.C. which was accordingly so considered by this Court vide order dated 03.07.2023. It is settled law that procedure is hand maid of justice and merely because the correct provision of law was not so mentioned in appeal, same would not be a ground to discard the appeal altogether. Moving further, Section 372 Cr.P.C. provides as under:-
372. No appeal to lie unless otherwise provided.
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
The definition of victim has been provided U/s 2 (wa) Cr.P.C. as under:-
"2(wa)- 'victim' means a person who has suffered any loss or injury caused by reason of the act of omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir"CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 12 / 22
CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA Date:
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+0530
13. It is clear from above that the term 'victim' as used in Section 372 Cr.P.C. also includes guardian/legal heirs of a person who has suffered loss/injury from the act/omission of an accused. Ms. Preeti Sharma is stated to be one of the daughters of Ms. Anita Saini and this fact has not been disputed by defence. In these circumstances, this Court is of the view that Ms. Preeti Sharma was covered by the definition of 'victim' as provided in Section 2(wa) Cr.P.C. and present appeal was maintainable. As far as objection taken by Ld. Defence Counsel to the effect that Mr. Rakesh Sharma, being husband of appellant Ms. Preeti Sharma and also a witness examined by prosecution, could not have appeared as a counsel in this matter is concerned, this Court is unable to see any bar in law to that effect. Ld. Defence Counsel has brought to the notice of this Court following rule as contained in Bar Council of India Rules:-
"An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engage in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardizing his client's interests."
14. Record shows that Mr. Rakesh Sharma who is representing Ms. Preeti Sharma as a counsel in the present appeal, was son in law of complainant of Ms. Anita Saini and had been examined as PW-3 before Ld. Trial Court. His interest in representing Ms. Preeti Sharma as counsel is not in any manner adverse to the interest of appellant. No prejudice was being caused to the accused persons by his appearance as an advocate in present appeal. In these circumstances, this Court is of the view that the objection CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 13 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:32:20 +0530 taken by Ld. Defence Counsel for accused Ashok Kumar was not of such a nature so as to dismiss this appeal without considering the same on merit.
15. On merit, record shows that the accused persons were charge- sheeted for the offence U/s 420/34 IPC and that accused Ashok Kumar was additionally charge-sheeted for the offence U/s 168 IPC. The case of prosecution in brief is that an agreement to sell cum receipt was executed between the parties on 28.02.2009 regarding property i.e., First Floor, (back portion) measuring 55 sq. yards approx. consisting of one bed room, one drawing/dining room, kitchen and one toilet/bath of S-14, comprised in Khasra No. 16, situated at Khirki Extension, Malviya Nagar, Tehsil Hauz Khas, New Delhi-110017. The consideration amount was fixed as Rs. 10.5 lacs. Substantial amount thereof was paid to accused Ashok Kumar (there is some contradiction as to what was the exact amount so paid as well as manner in which it was paid) but despite that accused persons neither handed over the property to the complainant nor returned her amount even after repeated requests.
16. There are three material witnesses examined by prosecution in support of its case. PW-1 Mr. Prakash Singh Negi in his testimony before Ld. Trial Court has stated that he was a friend of Mr. Rakesh Sharma (counsel representing the appellant in this appeal) who informed him that his mother-in-law was willing to purchase a flat. He further stated that he knew accused Ashok Kumar as he was constructing a new building at Khirki Extension so a meeting between Rakesh Sharma and Ashok Kumar CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 14 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:32:27 +0530 was fixed. He also stated that his friend had paid some amount to Ashok Kumar first time at his house and documents were also prepared wherein he had put his signature as a witness however he was not sure about the exact amount so paid. He also stated that as per his knowledge, his friend had paid about Rs. 8.5 lacs to accused Ashok Kumar as consideration. He also deposed that accused Sanjay Kumar was working with Ashok Kumar but he was unable to recollect as to whether he was present at the time of first payment made by Mr. Rakesh Sharma. He also stated that the payment was made in 2-3 times and he was present with Mr. Rakesh Sharma at the time of each and every payment. In his cross-examination, he stated that accused Ashok Kumar had received payment however he was unable to recollect as to whether he had made endorsement regarding payment on any document or not. He did not state anything regarding presence of Ms. Anita Saini at the time of execution of agreement/payment in his examination-in-chief. In his cross-examination, he stated that he did not meet accused Ashok Kumar in his presence.
17. PW-2 Ms. Anita Saini in her testimony before Ld. Trial Court stated that she alongwith her son-in-law Mr. Rakesh Sharma went to the house of Ashok Kumar and made payment of Rs. 8 lacs and that Ashok Kumar had agreed to receive balance amount of Rs. 2 lacs after 2-3 months. Said payment was made at the house of Ashok Kumar and agreement papers were signed by accused Sanjay. She was told by accused Ashok Kumar that he cannot sign as he was in govt. job. She further stated that when she insisted a lot, he wrote 2-3 lines on page no.2 by confirming the receipt of sum of Rs. 8 lacs from her. She further stated when she visited the flat CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 15 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:32:34 +0530 again, they came to know that same had been sold to some other person by the accused. When she demanded her money back or the possession of the flat, accused Ashok Kumar instead of saying anything to her, threatened her son-in-law to implicate him in a false case. In her cross-examination, she stated that she had never met accused Ashok Kumar before the day when the payment of Rs. 8 lacs was made and that she had visited his house only once. She denied the suggestion that she had not visited his house ever. She further stated that she did not see any document pertaining to flat in question favouring accused Ashok Kumar and that he had verbally informed about his title. She also stated that her son-in-law had informed that both the accused persons were partners who were jointly working in the name of accused Sanjay Kumar as accused Ashok Kumar was in govt. job. She also stated that she was unable to recollect as to when she had visited the property in question for the purpose of purchasing. She further stated that her son-in-law Mr. Rakesh Sharma was not practicing advocate at the time of filing of present complaint. In the cross-examination done by Ld. Defence Counsel for accused Sanjay Kumar, she stated that she had made payment of Rs. 8.50 lacs.
18. PW-3 Mr. Rakesh Sharma in his testimony before Ld. Trial Court has submitted that in the year 2009, his mother-in-law namely Smt. Anita Saini was searching a flat which would be nearer to his home and that he was told by his friend Mr. Prakash Singh Negi that accused Ashok Kumar was working with Delhi Police and was also doing the business of builder. He also stated that Ashok Kumar was constructing a building in Khirki Extension accordingly, he alongwith his mother-in-law met him and CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 16 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:32:41 +0530 finalized/agreed to purchase the said property in a sum of Rs. 10.5 lacs. He further stated that on 28.10.2009, he alongwith his mother-in-law went to his house at 410, PTS Malviya Nagar, New Delhi and gave him Rs. 8.5 lacs and remaining amount was agreed to be paid within 90 days. He also stated that in the meanwhile accused Sanjay Kumar also came to his house and on instructions of Ashok Kumar, he signed on the agreement. He also stated that when he objected to the same, Ashok Kumar told them that he was working with Delhi Police and that is why he could not sign the agreement as seller of the flat. He also stated that after around 3-4 months, when they requested to hand over the possession of said flat, same was not handed over and when they demanded their money, that also was not returned. He further stated that during hearing of bail application of accused Ashok Kumar, he handed over a sum of Rs. 8.5 lacs to his mother-in-law whereupon he was granted bail. In his cross-examination, he stated that he had met Ashok Kumar 2-3 times and that his friend Mr. Prakash Negi was always with him. He further stated that no payment was made in the absence of Mr. Prakash Negi.
19. Perusal of the original document i.e., agreement to sell dated 28.02.2009 shows that a consideration amount of Rs. 10.5 lacs was fixed between the parties (accused Sanjay Kumar and complainant Ms. Anita Saini). It has been mentioned in the second page thereof as under:-
"That in pursuance to this Agreement to sell and the consideration Rs. 10,50,000/- (Rupees Ten Lacs Fifty Thousand Only) out of which the first party have received a sum of Rs. 5,50,000/- (Five Lacs & Fifty Thousand only) as advance/earnest CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 17 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:32:50 +0530 money in the following manners:- Rs. 1,50,000/- given on 20-3-09 and Rs. Three lacs given at the time of finishing & possession. Received one lac & fifty thousand only on 12-5- 09 & balance amount.
2. And the balance and final payment of Rs. 5 lacs only shall be paid by the second party to the first party on or before five months from the date of this agreement."
Apart from that, it has also been mentioned in the right side bottom of that page as under:-
"as on Rs. 1.50/- (one lac & fifty thousand only)"
20. It is not clear from above as to how much amount was actually so paid by the complainant for transaction in question. Even if it is assumed that a payment of Rs.8.5 lacs was made by her as advance still this Court is unable to comprehend as to how offence U/s 420 IPC is made out in the given facts. In Vijay Kumar Ghai vs The State of West Bengal & Ors. Criminal Appeal No. 463/2022, Hon'ble Apex Court mentioned the ingredients of offence U/s 420 IPC as under:-
"30. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 18 / 22
CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2024.03.21 17:32:58 +0530
31. To establish the offence of Cheating in inducing the delivery of property, the following ingredients need to be proved:-
1. The representation made by the person was false
2. The accused had prior knowledge that the representation he made was false.
3. The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
4. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed."
Following observations of Hon'ble Apex Court in aforementioned judgment are also relevant in this matter:-
"34. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr.26, the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants."CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 19 / 22
CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.03.21 17:33:07 +0530
21. As per agreement to sell (Ex. PW2/B), after payment of Rs. 5.5 lacs, complainant was required to pay balance of Rs. 5 lacs within 5 months thereof. As mentioned earlier, it is not clear as to what amount was actually so paid to the accused due to poor drafting of the agreement. The dates on which those payments were made are also not clear. The case of prosecution is that the accused persons had failed to hand over the possession of property in question to the complainant despite agreement to sell and payment of advance money and that they also did not return the advance money paid by her however it is not clear as to whether the complainant had approached them with balance payment and if she had so approached them, what was the date thereof. Complainant in her testimony stated that property in question was sold to another person however, it has not come on record as to when the property was so sold meaning thereby as to whether same was sold even before the execution of agreement dated 28.02.2009 or it was done afterwards. It has also not come on record as to when complainant came to know about this fact. In the absence of these material particulars, it cannot be held that accused persons were having dishonest intention since beginning and that complainant was made to part with cash (advance) in pursuance to that dishonest intention. Present case appears to be one pertaining to civil dispute between the parties. Mere failure of accused to honor the agreement dated 28.02.2009 was not sufficient to prove commission of offence u/s 420 IPC on the part of accused persons. Accordingly, this Court is of the view that the prosecution has failed to prove the ingredients of Section 420 IPC and that Ld. Trial Court has rightly acquitted both the accused for the said offence. Hence, appeal filed by Ms. Preeti Sharma stands dismissed.
CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 20 / 22CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) SUNIL Digitally signed by SUNIL GUPTA GUPTA Date: 2024.03.21 17:33:15 +0530
22. Coming to the appeal filed by Mr. Ashok Kumar against his conviction for offence U/s 168 IPC, it is to be noted that Section 168 IPC provides as under:-
"168. Public servant unlawfully engaging in trade.
-- Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
23. Record shows that vide FSL report bearing No. F.S.L.2011/D-0283 dated 31.07.2014, the hand written portion on second page of Ex. PW-2/B has been opined to be in the handwriting of accused Ashok Kumar. Ld. Defence Counsel has stated that FSL result was inconclusive however, that submission is contrary to record. Accused Ashok Kumar has failed to explain as to how said agreement was containing his handwriting on the second page in case, he had nothing to do with transaction in question. The burden to show the same was on him as per Section 106, Indian Evidence Act, 1872. PW-1 Prakash Singh Negi has stated before Ld. Trial Court that he knew accused Ashok Kumar who was constructing a new building at Khirki Extension and that he fixed the meeting between Mr. Rakesh Sharma and accused Ashok Kumar at the house of accused where the documents were prepared and he had also signed on the same as a witness. Admittedly, his signature on Ex.PW2/B are not visible because there is a big stain on fourth page of the agreement covering the signature of witnesses. His testimony on this particular aspect has remained unrebutted. It is also to be noted here that admittedly, accused Ashok Kumar had paid a sum of Rs.8.5 lacs to the complainant on 07.12.2010 before Ld. Magistrate CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 21 / 22 CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi) Digitally signed SUNIL by SUNIL GUPTA GUPTA Date: 2024.03.21 17:33:23 +0530 when he was produced there after arrest. Ld. Defence Counsel has submitted that said payment was made due to fear of being sent to jail and same cannot be taken in any manner against him. This Court is unable to see as to why that payment cannot be taken against the accused as far as offence u/s 168 IPC is concerned. It is to be noted here that it has not come on record in any manner as to why the complainant would have filed a false case against him. No previous enmity between the parties has been alleged. Though the material on record was not sufficient to show commission of offence u/s 420 IPC, however same was sufficient to show that accused Ashok Kumar was in fact involved in construction of a building/sale- purchase thereof. Accordingly, this Court is of the view that he was rightly convicted for the offence u/s 168 IPC. No interference with said finding of Ld. Trial Court was required in the present appeal.
Resultantly, both the appeals stand dismissed.
Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
2024.03.21
17:33:33 +0530
Announced in the open (SUNIL GUPTA)
court on 16th March, 2024 Additional Sessions Judge-06
South, Saket Courts, New Delhi
CA No. 136/2023 Preeti Sharma Vs. State and Others Page No. 22 / 22
CA No.314/2023 Ashok Kumar Vs. The State (NCT of Delhi)