Delhi District Court
25. In Judgment Titled As Mohd. Ibrahim vs . State Of Bihar on 24 November, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
Digitally signed
State by POOJA
POOJA TALWAR
Vs.
TALWAR Date:
2018.11.27
M.L. Sharma 16:18:20 +0530
FIR No. 566/2006
P.S Hauz Khas (EOW)
JUDGMENT
1. Sr. No. of case 2033517/2016 2. Date of institution 15.04.2009 3. Name of the complainant SI Rakesh Kumar
4. Date of commission of offence On or before 15.02.2004
5. Name of accused M.L. Sharma
S/o Late Amar Dass
R/o Flat No. 5507/3, Modern
Complex, Mani Majra,
Chandigarh.
FIR No. 566/2006 PS Hauz Khas (EOW) Page- 1 of 35
6. Offence complained of U/s 420/468/471/511 IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 17.11.2018
9. Final order Acquitted
10 Date of such judgment 24.11.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that a complaint was received from one M.L. Sharma on 15.02.2004 stating that his locks put up in the property No. C-131, Mayapuri Phase-II, Second Floor, had been changed by someone. He supplied the documents of the property including letter of possession to the SHO for registration of FIR. He put another lock over the lock put by someone. On 04.03.2004 he came to know that the locks put by him on his premises have been broken and the possession has been taken by someone. Investigation on his complaint was taken up by Investigating Officer. He obtained documents from Sub Registrar, DDA Office and also tried to FIR No. 566/2006 PS Hauz Khas (EOW) Page- 2 of 35 contact Dr. Chanderkant Sharma from whom the property was allegedly purchased by M.L. Sharma. During further investigation, certified copies of GPA executed by Dr. Chanderkant Sharma in favour of M.L. Sharma with respect to 1/7th share in the aforesaid premises were obtained. It was found that the documents were silent about any specific portion in the building instead only 1/7th share in the undivided property was mentioned. Further investigation revealed that the aforeasaid property was allotted on perpetual lease by the DDA in favour of M/s. Youngman's Corporation in the year 1968. There were seven shares in the property which was distributed among five partners. Smt. Sudha Sharma owned two shares initially and later Smt. Shanti Devi also sold her share to Smt. Sudha Sharma. Smt. Laxmi Devi also sold her share to Smt. Sudha Sharma. Dr. Chanderkant Sharma was also examined who in his statement has statement that premises no. C-131, Mayapuri Phase-II, New Delhi was divided through family settlement and he received three rooms on the ground floor. He sold his 1/7th share to M.L. Sharma for consideration. He never sold two rooms on the second floor to M.L. Sharma as these rooms belong to some other partner. He produced affidavit FIR No. 566/2006 PS Hauz Khas (EOW) Page- 3 of 35 dated 20.07.1994 on which a line especially two rooms located on top floor and 1/3rd share on back side of the building inserted/added by M.L. Sharma without his knowledge and consent. This line was never typed at the time of execution. From the statements of witnesses, it was revealed that M.L Sharma inserted the aforesaid lines in the affidavit to cause wrongful gain to himself and wrongful loss to the owners of the said portion. Accordingly, FIR was registered against M.L. Sharma and chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence under section 468/471/420/511 IPC was framed against accused.
3. In order to prove its case, the prosecution examined 14 witnesses in all.
4. Sh. Diwakar Sharma was examined as PW1. He deposed that her wife namely Smt. Sudha Sharma was the original partner of M/s. Youngman's Corporation at C-131, Mayapuri, Delhi. His wife had two shares. Smt. Laxmi Devi who was also one of the partners and had one share sold her share to his wife.
FIR No. 566/2006 PS Hauz Khas (EOW) Page- 4 of 35 The documents i.e Power of Attorney and Special Power of Attorney were registered at Registrar Office. The share of Smt. Laxmi Devi was the top floor of the front portion of the building consisting of two rooms and Toilet. The payment regarding the property was made of Rs.1 lac by way of pay order drawn on Corporation Bank, Bhikaji Cama Place. Accused attempted to occupy his portion at 2 nd Floor, front side on the basis of forged documents. He further deposed that Dr. Chanderkant Sharma had no right in respect of their portion and accused tried to get his portion for which he is not legally authorized. Witness correctly identified the accused before the Court.
5. Smt. Sudha Sharma was examined as PW2. She deposed that she was the initial original partner of M/s. Youngman's Corporation C-131, Mayapuri Phase-II, Delhi. Initially there were total seven portions in M/s. Youngman's Corporation. Initially she owned two portion, Dr. Chanderkant on one portion, Sh. Ashawati also on another portion, two portions were owned by Smt. Shanti Devi and one portion was owned by Smt. Laxmi Devi. Later on Smt. Laxmi Devi sold the portion in M/s. Youngman's Corporation to her. She produced FIR No. 566/2006 PS Hauz Khas (EOW) Page- 5 of 35 original documents regarding her ownership of property bearing no. C-131, Mayapuri Phase-II, New Delhi and photocopies of total 8 pages of layout of areas/plan of division of areas. The photocopies of these documents i.e Agreement to Sell between Smt. Laxmi Devi and Smt. Sudha Sharma, General Power of Attorney, two affidavits of Smt. Laxmi Devi, indemnity bond, three Special Power of Attorneys, possession letter, Will, Receipt are Ex.PW2/A. The photocopies of abovesaid 8 pages of layout of areas/plan of division of areas are marked as Mark PW2A.
6. Sh. Rajesh Kahol was examined as PW3. He deposed that M/s Youngman's Corporation, C-131, Mayapuri Industrial Area, Phase-II, New Delhi had 7 shares i.e 2 shares in the name of his mother Smt. Shanti Devi, 2 shares in the name of Smt. Sudha Sharma and 1 share each in the name of Sh. Chanderkant Sharma, Smt. Asha Wati Sharma and Smt. Laxmi Devi. The top floor was sold to Smt. Sudha Sharma later on by Smt. Laxmi Devi. In the present case, accused M.L. Sharma put locks on the locks of the portion of Smt. Sudha Sharma on the top floor and started claiming illegal rights over there with a view to grab their property also. The matter was reported to police and police FIR No. 566/2006 PS Hauz Khas (EOW) Page- 6 of 35 made certain enquiries about the issue and filed FIR against M.L. Sharma for the forgery of documents and his intention to grab the property of Smt. Sudha Sharma of top floor. The documents given to Smt. Sudha Sharma by Smt. Laxmi Devi were general documents on which the share was transferred through Power of Attorney, payment receipt etc. He further deposed that he did not have any idea what total amount was exchanged between them.
7. Sh. Rajneesh Kahol was examined as PW4. He deposed that he is the son of Late Shanti Devi who was one of the partners in M/s. Youngman's Corporation, C-131, Mayapuri Phase-II, New Delhi. His mother was holding two shares of M/s. Youngman's Corporation. Originally M/s. Youngman's Corporation had seven shares comprising of two shares in favour of his mother Smt. Shanti Devi, two shares in favour of Smt. Sudha Sharma, one share in favour of Late Dr. Chanderkant Sharma, one share in favour of Smt. Asha Devi, one share in favour of Late Laxmi Devi. One more share was created in 1984 by the mutual consent of the partners which was given to Late Brahm Dass Kahol. In 1984, the built up area of C-131 was divided among the partners by way of draws in which five shares were created FIR No. 566/2006 PS Hauz Khas (EOW) Page- 7 of 35 in hall and three shares were created in first, second and third floor of built up area of the office. As per draw, two shares in the hall i.e back side of the hall were given to Smt. Sudha Sharma, one share of the hall adjoining Smt. Sudha Sharma's share was given to Late Brahm Dass Kahol, next to that hall two shares were given to Late Shanti Devi, and one share of ground floor, first floor, second floor were given to Dr. Chanderkant, Smt. Ashawati, Smt. Laxmi Devi each respectively. Later on somewhere around 2001, accused M.L. Sharma purchased the portion of Dr. Chanderkant i.e Ground Floor of the said premises and second floor i.e the share of Smt. Laxmi Devi was purchased by Smt. Sudha Sharma but accused M.L. Sharma forged the papers and claimed that Dr. Chanderkant Sharma had given him second floor of the built up premises, which was totally false. Witness correctly identified the accused before the Court.
8. Inspector Rakesh Kumar was examined as PW5. He deposed that in the month of November, 2005, he was posted as Sub Inspector at EOW. He received one complaint of M.L. Sharma from Inspector S.S. Gill alleging that two rooms of the top floor of property bearing no. C-131, Mayapuri Phase-II, FIR No. 566/2006 PS Hauz Khas (EOW) Page- 8 of 35 New Delhi was illegally possessed by one Sh. Diwakar Sharma by illegally placing iron grills. Alongwith the complaint, accused M.L. Sharma also gave some original documents i.e affidavit dated 20.07.1994, Agreement to Sell, GPA, Receipt, Will duly executed by Seller Dr. Chanderkant Sharma in favour of accused M.L. Sharma. During the course of enquiry, he examined the seller Dr. Chanderkant Sharma who informed that he sold 1/7th share i.e three rooms on the ground floor to accused M.L. Sharma. He never sold the property in question to accused i.e two rooms on the top floor of the abovesaid property. He showed Chanderkant the documents filed by accused alongwith his complaint and after going through those documents, Chanderkant told him that in affidavit dated 20.07.1994 his signatures were there but few lines were added in affidavit and the same were not there at the time of execution. He also produced the photocopies of the same and on comparing, it was found that those lines did not appear in the photocopy. In the meantime, Sh. Diwakar Sharma also claimed the two rooms on the top floor as he stated that his wife Smt. Laxmi had purchased the said two rooms from one Smt. Sudha who was one of the partners in M/s. Youngman's Corporation. FIR No. 566/2006 PS Hauz Khas (EOW) Page- 9 of 35 Thereafter, original affidavit dated 20.07.1994 produced by accused and the copy of same affidavit produced by seller Chanderkant and the copy of declaration produced by seller Chanderkant were sent to FSL through Inspector S.S. Gill. Opinion from FSL was taken as per which it was opined that there was some addition in the affidavit produced by accused. On 16.03.2006, he received a reply from DDA regarding perpetual lease of the abovesaid property alongwith some photocopies sent by DDA. He also collected the written statement of Chanderkant which is Ex.PW5/A from Chanderkant. During investigation, he also returned back the other documents to accused on 19.02.2005 vide receipt memo Ex.PW5/B. He filed the complaint in this regard which is Ex.PW5/C on the basis of which, the present case was registered. Witness correctly identified the accused before the Court.
9. Ms. Deepa Verma, Director, FSL, Rohini, Delhi was examined as PW6. She deposed that on 28.11.2005, the documents pertaining to present case of accused were received in the laboratory from EOW, Crime Branch for examination and opinion in the laboratory. The same were marked to her for FIR No. 566/2006 PS Hauz Khas (EOW) Page- 10 of 35 examination. The documents which were forwarded had type writings /signatures and stamp impression Mark Q1, Q2, Q2/1, Q3, Q3/1 and Q4. The standard signatures which were supplied for comparison were marked as A1 and A2 of accused M.L. Sharma. After examination, she prepared her report which is Ex.PW6/A. The questioned documents examined by her are Ex.PW6/B and the admitted signatures on documents are Ex.PW6/C bearing admitted signature at point X and Y.
10. Sh. Shiv Kumar Sharma was examined as PW7. He deposed that his father was Manager as well as partner in M/s. Youngman's Corporation at C-131, Mayapuri, Phase-II, Delhi. As per the understanding, out of seven shares of M/s. Youngman's Corporation, two shares were of Smt. Sudha Sharma, two shares of Smt. Shanti Devi, one share of Smt. Laxmi Devi. There might be one share for Dr. Chanderkant and Ashawati as well. Later on, one share was also given to his father. He deposed that he was not aware if Smt. Laxmi Devi sold her share to Smt. Sudha Sharma or not which was at the top floor. His father was given a hall. He further deposed that he was small at that time and not aware about anything else. He is 10th passed. He was not aware neither he could admit nor FIR No. 566/2006 PS Hauz Khas (EOW) Page- 11 of 35 deny that if Smt. Laxmi Devi sold her share to Smt. Sudha Sharma on 15.10.2001 comprising of two rooms, latrine and bathroom at C-131, Mayapuri Phase-II, New Delhi by executing indemnity bond in favour of Smt. Sudha Sharma, GPA in favour of Sh. Diwakar Sharma, SPA in favour of Sh. Diwakar Sharma and Agreement to Sell in favour of Smt. Sudha Sharma. He was not aware neither he could admit or deny that if an amount of Rs. 1 lac was paid to Smt. Laxmi Devi by Smt. Sudha Sharma and Sh. Diwakar Sharma. Ms. Shanti Devi expired on 29.01.1984. His father's share was in his possession and he expired in October, 1997.
11. Sh. Ashish Singla, Senior Manager, Credit, Corporation Bank, Bhikaji Cama Place, New Delhi was examined as PW8. He deposed that he has been working in the abovesaid bank. He was shown one letter dated 27.08.2007 on the letter head of Corporation Bank signed by the then Assistant General Manager. After seeing the same, he deposed that the same was signed at point A by Sh. S. Madhukar Malya who was the then Assistant General Manager in the Corporation Bank. The letter is Ex.PW8/A. The documents annexed with this letter were certified by their bank. The documents are Ex.PW8/B. He was FIR No. 566/2006 PS Hauz Khas (EOW) Page- 12 of 35 also shown one letter dated 04.06.2007 on the letter head of Corporation Bank signed by the then Chief Manager. After seeing the same, he deposed that the same was signed at point A by Sh. P.N. Shriraman who was the then Chief Manager in the Corporation Bank. The letter is Ex.PW8/C. The documents and statement annexed with this letter are marked as Mark Z.
12. Smt. Kamlesh Sharma was examined as PW9. She deposed that she is retired from Government of Delhi. Late Laxmi Devi was her mother-in-law and she was one of the partner of M/s Youngman's Corporation at Mayapuri, Delhi. The name of other partnership of the firm were Smt. Shanti Devi, Smt. Sudha, Sh. Diwakar Sharma, Dr. Chanderkant Sharma, Smt. Asha and they were total 7 shares. Her mother-in-law was having share at the building at first floor consisting of two rooms; bathroom and toilet situated at Mayapuri. Her mother-in-law sold the said share to Smt. Sudha Sharma and Sh. Diwakar Sharma in the year 2001 and some documents were executed. She deposed that she was one of the witnesses to the said documents i.e. indemnity bond, GPA, SPA etc. Smt. Sudha Sharma and Sh. Diwakar Sharma paid rupees around 1,00,000/- to her mother- in-law through pay order. Police officers made enquiries from FIR No. 566/2006 PS Hauz Khas (EOW) Page- 13 of 35 her. She identified her signatures at points B on registered GPA, Agreement to Sell, registered Indemnity Bond, registered Special Power of Attorney, registered Will, possession letter and receipt as she was the witness to the said document.
13. Sh. Ajay, Data Entry Officer, Revenue Department, S Shyamnath Marg, New Delhi was examined as PW10. He deposed that the summoned record had been destroyed as per section 32 (III) of Delhi Province Stamp Rules of 1934. A letter issued by SDM-II(HQ)/Link Officers in this regard is Ex.P1.
14. Inspector Harish Chander was examined as PW11. He deposed that on 15.04.2007, the investigation of present case was marked to him. During the investigation, he examined the witnesses namely Smt. Sudha Sharma, Smt. S.D. Sharma, Sh. Chanderkant, Sh. Rajesh Kahol, Sh. Rajneesh Kahol, Sh. Dharambir and recorded their statement under section 161 Cr.PC. During enquiry, IO had collected certified copies of documents executed by Chanderkant in favour of accused with regard to sale of part of property bearing no. C-131, Mayapuri. He collected perpetual lease executed between DDA and M/s. Youngman's Corporation which is marked as Mark A. He also collected, copy of order under section 145 Cr.PC of the Court of FIR No. 566/2006 PS Hauz Khas (EOW) Page- 14 of 35 Sh. S.N. Bhardwaj, SDM, Delhi Cantt. The certified copy of same is Ex.PW13/A. He also collected photocopy of register for the sale of Court fee stamp paper which is marked as Mark B. He also collected documents pertaining to account no.OD-I of M/s D.S. Distributors vide letter already Ex.PW8/A, documents Ex.PW8/B (colly), Ex.PW8/C and Mark 2. He also interrogated the accused. He prepared the chargesheet and filed before the Court. Witness correctly identified the accused before the Court.
15. ACP Virender Kadyan was examined as PW12. He deposed that on 05.09.2006, the present case was handed over to him for further investigation through Ct. Bijender Singh. SI Rakesh Kumar was the main Enquiry Officer who conducted the enquiry of the matter and made endorsement for the registration of this case at PS Hauz Khas and the investigation of this case was marked to him as per the directions of seniors. During investigation, he visited the DDA office and Sub Registrar office but did not seize any document. On 24.03.2007, the investigation of this case was marked to Inspector Harish.
16. Sh. Uday Bhan Shokeen, ASO, LSB (I), A Block, 1 st Floor, DDA, Vikas Sadan, INA, New Delhi was examined as PW13. FIR No. 566/2006 PS Hauz Khas (EOW) Page- 15 of 35 He produced the certified copy of letter written by Sh. O.P. Mishra, OSD/Lands dated 10.08.2006 and another certified copy of letter written by the then Deputy Director, LSB/Indl/DDA dated 09.03.2006. The certified copies vide Ex.PW13/A and Ex.PW13/B. He also produced the original document annexed with letter Ex.PW13/B i.e perpetual lease. The perpetual lease is Ex.PW13/C.
17. Sh. Vivek Yadav, Record Keeper, Sub Registrar-II, Basai Darapur, New Delhi was inadvertently examined as PW13. He produced the original registered GPA vide registration no.8040 in additional book no. 4, volume no. 3170 on page 120 to 122 on dated 20.07.1994. The same is Ex.PW13/A. He also produced the original registered SPA vide registration no.8041 in additional book no. 4, volume no.3170 on page 123 to 124 on dated 20.07.1994. The same is Ex.PW13/B. He also produced the original registered indemnity bond vide registration no.38545 in additional book no. 4, volume no. 8007 on page 47 to 48 on dated 17.10.2001. The same is Ex.PW13/C. He produced the original registered GPA vide registration no.38582 in additional book no. 4, volume no. 8007 on page 141 to 143 on dated 17.10.2001. The same is Ex.PW13/D. He produced the FIR No. 566/2006 PS Hauz Khas (EOW) Page- 16 of 35 original registered SPA vide registration no. 38544 in additional book no. 4, volume no. 8007 on page 46 on dated 17.10.2001. The same is Ex.PW13/E. He produced the original registered SPA vide registration no. 38542 in additional book no. 4, volume no. 8007 on page 42 to 43 on dated 17.10.2001. The same is Ex.PW13/F. He produced the original registered SPA vide registration no. 38543 in additional book no. 4, volume no. 8007 on page 44 to 45 on dated 17.10.2001. The same vide Ex.PW13/G. He produced the original registered Will vide registration no. 32545 in additional book no.3, volume no.5451 on page 100 on dated 17.10.2001. The same is Ex.PW13/H.
18. Retired ACP Sh. S.S. Gill was examined as PW14. He deposed that in the year 2005, he received the complaint of accused M.L. Sharma. He recorded the statement of accused M.L. Sharma which is already Ex.PW6/C. Accused M.L. Sharma produced papers of Power of Attorney, Agreement to Sell, Receipts etc which were seized by him vide seizure memo already Ex.PW5/D. Further, he requested Sub-Registrar, Janakpuri for certified copy of General Power of Attorney and Special Power of Attorney which was received from the office of Sub-Registrar-II, Janakpuri through letter no. 342 dated FIR No. 566/2006 PS Hauz Khas (EOW) Page- 17 of 35 03.11.2005. The letter is marked as Mark X. The General Power of Attorney and Special Power of Attorney are already Ex.PW13/A and Ex.PW13/B. In July, 2006, he was transferred to PS Model Town as SHO and he handed over all the documents in the concerned branch on the direction of ACP.
19. The entire incriminating evidence brought on record against the accused were put to him and his statement under section 313 Cr.PC was recorded separately. It is stated by accused that he is innocent. He has been falsely implicated in the present case by police officials. He has not forged any documents. Affidavit dated 20.07.1994 is about possession and not about rights.
20. Accused stepped into the witness box as DW1 and deposed that he is successor in interest of Dr. Chanderkant in property no. C-131, Phase-II, Mayapuri Industrial Area. On 15.02.2004 Smt. Sudha Sharma, Sh. Diwakar Sharma, Sh. Rajesh Kahol, Sh. Rajneesh Kahol, Sh. Alok Sharma and Sh. Anuj Sharma broke open the locks of two rooms of the second floor of the building which were in his possession. When he came to know about the same, he filed the complaint with the police. DD was recorded and IO took his documents including possession letter. FIR No. 566/2006 PS Hauz Khas (EOW) Page- 18 of 35 He came to know that police has registered the FIR on 02.03.2004 against him and on 03.03.2004 Sudha Sharma and others put in possession. On 07.03.2004 Sudhar Sharma and her relatives started construction and when he complained he was arrested under section 107/151 Cr.PC. On 08.03.2004 he again complained to Police Commissioner and the property was attached on 09.03.2004 by Kalandra. On 16.03.2004 he approached SDM, SDM dropped his attachment and ordered to status quo order in respect to of two rooms of the said building. He was discharged in FIR No. 59/2004 which was registered on 02.03.2004 under section 341 IPC. He again complained that local police took his possession letter and handed over the possession of two disputed rooms on the second floor to the opposite party. His complaint was marked to Inspector S.S. Gill. He called him to the office of EOW alongwith the documents. Inspector S.S. Gill took all the original documents of the property from him but refused to return the same. His documents were forcibly taken by the police and no possession letter of the accused persons were taken by the police on the basis of which they took possession of the property. Despite direction of DCP, documents of opposite party were not taken. FIR No. 566/2006 PS Hauz Khas (EOW) Page- 19 of 35 SHO PS Hauz Khas registered FIR against him for forging documents dated 20.07.1994. The IO got xerox copy of the original affidavit dated 20.07.1994 forged in connivance with Rajesh Kahol and Diwakar Sharma. IO also obtained undated statement of Dr. Chanderkant Sharma which was fabricated because Dr. Chanderkant Sharma had already expired. The SDM passed order in kalandra dated 25.05.2011 by virtue of which he was treated in possession of two disputed rooms of the property. He had not forged any documents. He was falsely implicated by IO in connivance with the opposite party.
21. I have heard Ld. APP for the State and Ld. counsel for the accused and have also perused the judicial file carefully.
22. Accused has been charged with the offeence under section 468/471/420/511 IPC.
23. The essential ingredients of section 468 IPC are as under:-
(i) That the accused committed forgery;
(ii) That he did so intending that the document or electronic record forged shall be used for the purpose of cheating.
24. The essential ingredient is that the person should have FIR No. 566/2006 PS Hauz Khas (EOW) Page- 20 of 35 committed forgery and the same should have been done for the purpose of cheating. The prosecution is first required to prove that forgery is committed by the accused and that the same was done with an intent to cheat. Forgery is defined under section 463 IPC and making a false documents under section 464 IPC.
Section 463:- Whoever makes any false document [or false electronic record] or part of a document [or electronic record], with intent to cause damage or injury, to the public or to any person, or to support any claim of title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464:- A person is said to make a false document or false electronic record:-
First-Who dishonestly or fraudulently_
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
FIR No. 566/2006 PS Hauz Khas (EOW) Page- 21 of 35
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], With the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a FIR No. 566/2006 PS Hauz Khas (EOW) Page- 22 of 35 document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document of electronic record or the nature of the alteration.
25. In judgment titled as Mohd. Ibrahim Vs. State of Bihar (2009) 8 SCC 751 wherein it was held by the Court:-
11. In short, a person is said to have made a 'false document;, if (I) he made or executed a document claiming to be someone else or FIR No. 653/2000, PS Moti Nagar Page 8/14 authorized by someone else; or
(ii) he altered or tampered a document; or (iii) he obtained a document be practising deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents;. It therefore remains to be seen whether FIR No. 566/2006 PS Hauz Khas (EOW) Page- 23 of 35 the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of documents with the intention of taking possession of complainant's land (and that accused no. 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he believes that the property actually belongs to him. 13.
The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall FIR No. 566/2006 PS Hauz Khas (EOW) Page- 24 of 35 under first category of 'false document', it is not sufficient that a document has been made or executed dishonestly or fraudulently.
There is a FIR No. 653/2000, PS Moti Nagar Page 9/14 further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Thereafter, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the code. If there is no forgery, then neither section 467 IPC nor section 471 IPC of the code are attracted.
"In short, a person is said to have made a 'false document', if (I) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; FIR No. 566/2006 PS Hauz Khas (EOW) Page- 25 of 35 or (iii) he obtained a document by practising deception, or from a person not in control of his senses"
26. As discussed above in Mohd Ibrahim (supra) judgment, a person is said to have made a false document if he alters or tampers a document.
27. In the instant case, it is alleged against the accused that he added a line "Especially for two rooms located on the top floor and 1/3rd share on back side of the building" in the affidavit executed by Dr. Chanderkant Sharma in favour of the accused.
28. Prosecution has relied upon photocopy of the alleged original document Ex.PW6/B. The said copy is stated to have been handed over by Dr. Chanderkant Sharma to IO. Sale of property in favour of the accused by Dr. Chanderkant Sharma is undisputed. It is the case of the prosecution that 1/7th undivided share was sold to the accused and that the possession of two rooms on the top floor were not handed over to the accused.
29. It is the prosecution version that the said rooms were in possession of PW2 Smt. Sudha Sharma who had purchased the same from Smt. Laxmi Devi. Her testimony is corroborated FIR No. 566/2006 PS Hauz Khas (EOW) Page- 26 of 35 with the testimony of her husband PW1 Sh. Diwakar Sharma, PW3 Sh. Rajesh Kahol, PW4 Sh. Rajneesh Kahol, PW9 Smt. Kamlesh Sharma. All these witnesses have deposed that the two rooms on the top floor were sold by Smt. Laxmi Devi to Smt. Sudhar Sharma.
30. Admittedly, the property C-131, Mayapuri Industrial Area, Phase-II was jointly owned by the partners of M/s Youngman's Corporation. The property was as per prosecution witnesses divided and each partner was assigned specific portion vide agreement Mark PW11/X1. The original of the said document has not been brought on record. Moreover, the said document is not signed by the partners among whom the said agreement was entered into.
31. It is the case of the prosecution that the possession of the two rooms on the top floor was with Smt. Sudha Sharma which devolved in the share of Smt. Laxmi Devi from whom the same was purchased by Smt. Sudha Sharma. In order to prove the same, the prosecution was required to first establish that a partition of a property was effected and each partner was assigned a specific portion. Except this agreement Mark PW11/X1 there is no other document to prove that the specific FIR No. 566/2006 PS Hauz Khas (EOW) Page- 27 of 35 portion was assigned to particular partner.
32. Numerous litigations between the parties is undisputed. The parties have been at loggerheads since late 80s. There is no order of the Court wherein the specific shares of all the partners have been depicted. Ld. SDM vide order dated 06.03.2000 returned a finding that the possession of two rooms on the second floor of the disputed property is in possession of Sudha Sharma. The said order was assailed and vide order dated 26.03.2009 Ld. ASJ remanded back the case to SDM to decide afresh. Vide order dated 25.05.2011 SDM returned a finding that accused herein is in possession of two rooms on the second floor of the property. Revision petition was filed by Sh. Anuj Sharma son of Smt. Sudha Sharma impugning the order dated 25.05.2011 before the Court of Ld. ASJ, Tis Hazari. The said revision petition wad dismissed and the order of Ld. SDM was upheld. The order of Ld. ASJ has been challenged before the Hon'ble High Court of Delhi and the same is still pending.
33. It is alleged against the accused that the accused by inserting two lines "especially for two rooms........................." attempted to cheat Dr. Chanderkant Sharma and committed offence under section 468 IPC.
FIR No. 566/2006 PS Hauz Khas (EOW) Page- 28 of 35
34. Dr. Chanderkant Sharma has not stepped into the witness box to prove the said fact. It is the case of the prosecution that photocopy of document Ex.PW6/B was handed over to the IO by Dr. Chanderkant Sharma. Cheating if any has been committed with Dr. Chanderkant Sharma. It is not denied that the share of Dr. Chanderkant Sharma was sold to the accused. The only question which needs deliberation is whether the lines were inserted by the accused in document Ex.PW6/B.
35. The document Ex.PW6/B alongwith its photocopy were sent for forensic examination and PW6 Ms. Deepa Verma was examined to prove report Ex.PW6/A. It is stated in the report that document Q3 and Q3/A which is alleged photocopy of Ex.PW6/B is slightly reduced xerox copy of Ex.PW6/B. She also opined that portion "especially for two rooms..............." appears to have been inserted subsequently. She further opined that no definite opinion regarding typewritings in the two documents could be given. In her cross examination, she stated that she cannot say if any tampering was done with Q3 and Q3/1 since it was never sent to the lab for examination of the documents being photocopy for the purpose of tampering.
36. From the evidence so adduced by the prosecution no FIR No. 566/2006 PS Hauz Khas (EOW) Page- 29 of 35 definite opinion has been given by expert witness and on perusal of the document in the Court, it is revealed that the font size of both the documents is different and the lines "especially for two rooms..............." definitely appears to have been inserted after making of the document.
37. It is a cardinal principle of criminal jurisprudence that the offence has to be proved against accused beyond reasonable doubt and not on probabilities. It cannot be ruled out that the said line was inserted with the consent of the executant i.e Dr. Chanderkant Sharma.
38. It is stated by accused in his statement recorded by the police Ex.PW6/C that he had requested Dr. Chanderkant Sharma to specify on the spot as to which portion belongs to him and of which he was handed over the possession to him. Then he came to the spot alongwith his two son-in-laws and indicated front portion rooms of the top floor and stated that he was handing over the possession of the same. The said statement is relied upon by the prosecution.
39. Even in his statement under section 313 Cr.PC, he has explained that the affidavit Ex.PW6/B related to the possession FIR No. 566/2006 PS Hauz Khas (EOW) Page- 30 of 35 and not the rights. It has been held in judgment titled as Reena Hazarika Vs. State of Assam, Crl. No. 1330/2018 decided on 31.10.2018 that "Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same.
The mere use of the word 'may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the FIR No. 566/2006 PS Hauz Khas (EOW) Page- 31 of 35 evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing."
40. The prosecution has failed to prove that the line "especially for two rooms..............." was added by accused since the witnesses examined by it failed to prove their possession over the said portion and also the fact that the property was partitioned and specific portions were assigned to each of the partners. In absence of any clinching evidence, the accused cannot be said to have committed forgery.
41. It is alleged against the accused that he had attempted to cheat Dr. Chanderkant Sharma by laying false claim on the top floor of the property in question.
42. Cheating has been defined under section 415 IPC which is as follows:
FIR No. 566/2006 PS Hauz Khas (EOW) Page- 32 of 35 a. The accused must have induced fraudulently of dishonestly a person, b. The deceived should be induced to deliver any property to any person or to consent that any person shall retain any property.
c. If the person deceived, must be intentionally induced by the wrong doer to do or omit to do anything he would not do or omit if such deceived person was not so deceived.
d. The deceived should suffer any damage or harm in body, mind, reputation or property by the deceitful act of the wrong doer. e. A dishonest concealment of facts is also treated as a cheating. Section 420 is an aggravated form of cheating. Indian Penal Code defines offence under section 420 IPC that whoever cheats and thereby dishonestly induces the person deceived 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 covered into a valuable security, shall be punished FIR No. 566/2006 PS Hauz Khas (EOW) Page- 33 of 35 with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
43. Admittedly, Dr. Chanderkant Sharma sold his share in the property in question to the accused. The same is not disputed by the co-sharers. It is not alleged against the accused that he induced Dr. Chanderkant Sharma at the time of sale of property. The intention to cheat has to be from the inception. Once the property was sold to the accused by Dr. Chanderkant for consideration and without any inducement, it cannot be said that an attempt was made to cheat him.
44. Once the prosecution has failed to establish that the property was divided hence, none of the co-shares could have claimed right over any specific portion. Even otherwise the document Ex.PW6/B was never produced before Dr. Chanderkant Sharma by the accused hence, it cannot be said that he attempted to cheat Dr. Chanderkant Sharma through that document.
45. The essential ingredients to charge a person with the offence of cheating are absolutely missing hence, the accused cannot be charged under section 420 IPC read with section 511 IPC. FIR No. 566/2006 PS Hauz Khas (EOW) Page- 34 of 35
46. Accused has also been charged with the offence under section 471 IPC for using document Ex.PW6/B which is alleged to be a forged document.
47. Once the prosecution has failed to prove that document Ex.PW6/B was forged as has already been discussed in the preceding paragraphs hence, the offence under section 471 IPC for using a forged document as genuine cannot be said to have been committed.
48. From the aforesaid discussion, it is hereby concluded that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Accordingly, accused M.L. Sharma is acquitted for the offence under section 468/471/420/511 IPC.
Announced in the open
Court on 24.11.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 35 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 566/2006 PS Hauz Khas (EOW) Page- 35 of 35