Delhi District Court
State vs Mahinder Kumar .Ors on 17 September, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF JUDICIAL MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 2031829/2016
STATE Vs. MAHINDER KUMAR AND ORS.
State vs. Mahinder Kumar and others
FIR No. 425/2000
Police Station : Kotla Mubarakpur
Under Section : 120B/419/420/467/468/471 IPC
Date of institution : 26.02.2001
Date of reserving : 01.07.2024
Date of pronouncement : 17.09.2024
JUDGMENT
a) Serial number of the case : 2031829/2016
b) Date of commission of : 15.03.1994 (On or about)
offence
c) Name of the complainant : Sh. Amar Chatterjee, the then
Director (Housing-I), DDA,
Vikas Sadan, INA, New Delhi.
d) Name, parentage and : i) Mahinder Kumar S/o Sh.
address of the accused Devi Dayal R/o H. No. BG-
persons 5/75B, Paschim Vihar, New
Delhi.
ii) Hakikat Rai Sharma (H.R.
Sharma) S/o Late Sh. Ram
Swaroop Sharma R/o C-4/G,
133-A, Janakpuri, Delhi.
State vs. Mahinder Kumar and others
FIR No. 425/2000, PS: Kotla Mubarakpur Page 1 of 54
iii) Subhash Chander Chugh
(S.C. Chugh) S/o Sh. Dhan
Pal Rai R/o H. No. L-1/101A,
DDA Flats, Kalkaji, New
Delhi.
iv) M. Ganapathy Shenoy
(M.G. Shenoy) S/o Late Sh.
Vasudev Shenoy R/o Flat No.
403, Unnathi Apartments,
Pinto's Lane, Jail Road,
Mangalore (Karnataka).
v) Hari Prakash Garg (H.P.
Garg) S/o Sh. O.P. Garg R/o
A-31, Kedar Building, Ghanta
Ghar, Delhi (Proceedings
stand abated).
e) Offence complained of : 120B/419/420/467/468/471
IPC
f) Plea of the accused persons : Accused persons pleaded not guilty
g) Final order : Acquittal
h) Date of final order : 17.09.2024 BRIEF STATEMENT OF FACTS FOR THE DECISION CASE OF THE PROSECUTION
1. The instant FIR was registered under Section(s) 419/420/467/468/471/120B Indian Penal Code, 1860 (hereinafter referred to as "IPC") on the complaint of complainant, namely, Sh. Amar Chatterjee, the then Director (Housing-I), DDA, Vikas State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 2 of 54 Sadan, INA, New Delhi. The complaint is reproduced below:
"On scrutiny of file bearing F. 178[7]94/SFS/JL/II/Pt. I, the following facts were detected.
Shri Sugan Chand Bajaj a registrant of MIG got converted his registration into 5th SFS having address J-4/32, Old Double Storey, Lajpat Nagar, New Delhi. He was allocated category II flat, Sector-7, Jasola vide allocation letter dated 15.3.94 having address G-248, Sarita Vihar, New Delhi without any request for change of address. The main file of the flat and registration record was reported as misplaced and new file was constructed in 1996. Flat No.7, Sector 7, CAT.II at Jasola was allotted vide 5th and Final demand letter dated 23.9.98 having address J- 4/31, Lajpat Nagar, Old Double Storey, New Delhi. On a fake request on behalf of the allottee, the cost was reduced from Rs.10.20 lacs to 8.35 lacs vide revised demand letter dated 29.12.1999 having address K-31, Kedar Building Ghantagar, Delhi. The possession of the flat was handed over to Shri Hari Prakash Garg on the basis of SPA having forged signature of the allottee. Similarly, conveyance deed was also signed by Shri Hari Prakash Garg.
A refund cheque of Rs.1,01,752/- was withdrawn by a fake Sugan Chand Baja by giving changed address with different signatures through Corporation Bank, Sarita Vihar Branch, New Delhi.
The connivance and involvement of staff of the Housing Accounts Wing, Management Wing and property dealers is very clear.
Please investigate the matter and take legal action."
2. The allegations against accused Mahinder Kumar (Accountant), H.R. Sharma (Sr. Accounts Officer) and S.C. Chugh (Assistant Director), the then DDA officials, are that they violated the existing rules, regulations and guidelines in order to extend illegal assistance and profit to the property dealer, namely, H.P. Garg.
3. The allegations against accused M.G. Shenoy is that he was State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 3 of 54 the then Sr. Branch Manager, Corporation Bank, Sarita Vihar, New Delhi, where accused H.P. Garg opened a fake bank account in the name of the original allottee i.e. Sugan Chand Bajaj by pasting his old photograph and also by forging the signatures of Sugan Chand Bajaj in the Account Opening Form and then encashed the refund cheque of Rs.1,01,752/-. It has been alleged that accused M.G. Shenoy helped accused H.P. Garg in opening the said fake account.
Allegations against accused no. 1 Mahinder Kumar (Accountant) and accused no. 2 H.R. Sharma (Senior Accounts Officer)
4. The allegations against accused no. 1 Mahinder Kumar (Accountant) and accused no. 2 H.R. Sharma (Senior Accounts Officer) as alleged in the chargesheet are as follows:
a) Firstly, on a fake request dated 21.01.1999, the accused no. 1 and 2 recommended for reduction of cost without the specific approval of competent authority i.e. Commissioner (Housing)/Vice Chairman, DDA to Rs.8.35 lakhs from Rs.10.20 lakhs in order to give undue benefit to deceased accused H.P. Garg.
b) Secondly, a sum of Rs. 1,01,752 was refunded vide cheque number 46120 dated 03.01.2000 without seeking the approval of competent authority.
c) Thirdly, the formalities and procedural steps w.r.t.
reduction in cost and refund of amount (including preparation of cheque) was completed on the same day on the connivance of the proposed accused persons causing loss State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 4 of 54 of Rs. 1,01,752 to DDA.
d) Fourthly, they did not tally the signatures of original allottee Mr. Sugan Chand Bajaj with the genuine signatures already available on the file. They also did not doubt the fact that a different address was given by the property dealer on behalf of original allottee i.e. Sugan Chand Bajaj.
e) Fifthly, they directed the refund cheque at the address of deceased accused H.P. Garg in connivance with S.C. Chugh without verifying the genuineness of the original allottee.
5. The allegations against accused no. 3 S.C. Chugh (Assistant Director, SFS) as alleged in the chargesheet are as follows:
a) Firstly, he accepted fake request dated 21.01.1999 for the reduction of cost without comparing the signatures on the request with the signatures of the original allottee as already available on DDA file. Also, he did not confirm the address of the original allottee as the address on the request was that of accused H.P. Garg (the property dealer) which shows the connivance with the property dealer.
b) Secondly, the possession letter of the flat was handed over to accused H.P. Garg on the basis of a forged receipt/affidavit etc. which was apparently forged.
c) Thirdly, the accused did not call the original allottee before handing over the possession letter to the GPA holder despite discrepancies in the documents such as addition of State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 5 of 54 flat number, name and address in different ink/typewriter on all the affidavits/undertaking/SPA etc.
d) Fourthly, the accused did not bother to verify the age of documents which were apparently old/new from the first look and appearance.
e) Fifthly, the accused did not verify the genuineness of the documents filed for issuance of possession letter as the proper notarization and the stamp were not visible. The said documents were accepted without any objection and the possession letter as well as physical possession of the flat was handed over to the SPA on the basis of the fake documents which shows the malafide intention and connivance with the property dealer.
6. The allegations against deceased accused no. 4 H.P. Garg as alleged in the chargesheet are as follows:
a) Firstly, the accused managed to procure the file regarding the original allottee and then deposited four instalments with the help of blank papers in the name of Sugan Chand Bajaj i.e. the original allottee.
b) Secondly, the accused opened a fake bank account in the name of allottee Sugan Chand Bajaj and encashed the refund cheque as an imposter.
7. It is alleged in the chargesheet that all the accused DDA officials have violated the existing rule, regulations and guidelines State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 6 of 54 in order to extend illegal assistance and profit to the property dealer accused H.P. Garg. It is averred that the officials of accounting had to check and verify the proper receipt of application for reduction in cost and genuineness of the original allottee/applicant while accepting claim for reduction or change of address. It is further stated that the permission had to be obtained from the Competent Authority for cost reduction and the officials of Management Wing had to check the genuineness of the signatures, apparent age of the documents produced in relation to the time of execution, proper notarization of documents, visibility of stamps etc. while processing applications for refund/change of address. It is stated that all of the said formalities were deliberately not done by the accused DDA officials in order to benefit the property dealer accused Hari Prakash Garg and the said accused persons entered into a criminal conspiracy and committed forgery in order to cheat the public at large.
8. With respect to accused M.G. Shenoy, a supplementary charge sheet was filed by the IO. In the said supplementary chargesheet, it was averred qua accused M.G. Shenoy that he was the Senior Branch Manager, Corporation Bank, Sarita Vihar where the accused H.P. Garg opened a fake bank account in the name of the original allottee Mr. Sugan Chand Bajaj by affixing an old photograph of Mr. Sugan Chand Bajaj and forging his signatures in the account opening form and then encashed the cheque of Rs. 1,01,752. It is stated that accused M.G. Shenoy helped accused H.P. Garg to open a fake account in the name of the original State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 7 of 54 allottee as the original allottee stated that he never visited the bank and did not open the bank account. The original allottee Sugan Chand Bajaj also denied his signatures on the account opening form. It is stated that as per RBI Instructions Manual, it is mandatory that the account holder will visit the bank physically and after verifying the identity and obtaining documents relating to identity and address, the account holder has to sign the account opening form before the officer of the bank opening the bank account. It is stated that accused M.G. Shenoy was criminally culpable as he did not comply with the said guidelines.
CHARGE
9. Vide order dated 17.07.2010, charge for the offences punishable under Sections 120B/419/420/467/468/471 IPC was framed against the accused persons, who pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
10. Prosecution has examined sixteen witnesses. Their particulars are as under:
Witness Name of the Witness Designation
No.
PW1 Ms. Ila Singh Ex. Financial Advisor
(Housing), DDA
PW2 Sh. Sugan Chand Bajaj The Allottee
State vs. Mahinder Kumar and others
FIR No. 425/2000, PS: Kotla Mubarakpur Page 8 of 54
PW3 Sh. Manoj Kumar The then Inspector, ACB
PW4 Sh. J.S. Mishra The then Inspector
PW5 Sh. Devendra Bhushan The then Commissioner
(Housing), DDA
Gupta
PW6 Sh. V.D. Arora The then DDA Official
PW7 Sh. Virender Kumar The then Inspector, EOW
PW8 Sh. Naresh Chander The then AO, DDA
PW9 Sh. Sanjeev Kumar The then SI, EOW
PW10 Sh. Amar Chatterjee The then Director
(Housing-I), DDA
PW11 Sh. Narender Kaur The then SI
PW12 Sh. Narender Pal The then Constable, EOW
PW13 Sh. Bijender The then Constable, EOW
PW14 Sh. K.P. Lakshmana Rao The then Finance
Member, DDA
PW15 Sh. D.R. Srivastava The then Legal Assistant,
DDA
PW16 Sh. Pawan Kumar Sharma The then Dealing
Assistant, DDA
11. PW1 Ms. Ila Singh deposed that during April 1996 to October 2000, she was posted as Financial Advisor (Housing), DDA, New Delhi. She further deposed that as far as she recalled, the IO from the Crime Branch asked her to give the details on the policy of 31.03.1999 and the subsequent refunds made to the SFS allottees of South Delhi. PW1 gave a detailed written reply to the IO explaining the policy as well as the procedure/practice being State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 9 of 54 followed in the DDA while processing the refund cases. PW1 further deposed that the policy dated 31.03.1999 was effective from immediate effect for the concerned allottees. Since PW1 did not support the case of the prosecution, she was cross-examined by the Ld. APP for State. Thereafter, the witness was cross-examined by the Ld. Defence Counsel(s). Finally, the witness was reexamined by the Ld. APP for State.
12. PW2 Sh. Sugan Chand Bajaj deposed that he had submitted a form for the allotment of a flat with DDA, however, no allotment was made in his name. PW2 further deposed that he had sold the booking receipt to one Chunni Lal and he might have died. PW2 denied his signatures on the documents Ex P1 to P13 and deposed that the signatures thereon were forged. The witness was duly cross-examined by the Ld. Defence Counsel(s).
13. PW3 Inspector Manoj Kumar deposed that in February 2001, the investigation of the present case was marked to him. During investigation, he recorded statements of eight DDA officials regarding handing of the file and the procedure of the same. The specimen signature card (Ex P14) of Sh. Sugan Chand Bajaj was seized from the bank vide seizure memo Ex PW3/A, which was sent to the FSL for expert opinion. The witness was duly cross- examined by the Ld. Defence Counsel(s).
14. PW4 Inspector J.S. Mishra deposed that on 12.02.2001, he was posted as SI at LBR Section, EOW. On that day, accused State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 10 of 54 M.G. Shenoy, Manager, Corporation Bank came to the office and handed over the signature card of Sh. Sugan Chand Bajaj of Account No. 1721, which was seized by IO SI Manoj Kumar. The witness was duly cross-examined by the Ld. Defence Counsel(s).
15. PW5 Sh. Devendra Bhushan Gupta, Principal Secretary, PWD, Secretariat Jaipur, Govt. of Rajasthan deposed that on 15.05.2000, he was posted as Commissioner (Housing), DDA, INA, New Delhi. He deposed that in the present case, some refunds were made. He further deposed that as per Rule 3 of DDA Regulations, 1968, only Vice-Chairman, DDA was the competent authority for restoration of cancelled flats and for making refund. However, in practice, for refunds, his powers were traditionally exercised by the Financial Advisor (Housing), DDA. The FA(H) cannot sub-delegate these powers to his subordinates. In the present case, refunds were made without proper sanctions of the FA(H). On scrutiny of that when the file came to PW5, he recommended cancellation to VC for such irregularities. Such sanction was available on the management file of the DDA along with the noting. PW5 further deposed that in this case, original allottee of MIG Flat under SFS scheme was made in Jasola to Sh. Sugan Chand Bajaj. The amount in this case was deposited by somebody else under different signatures having address of Sarita Vihar. When the fifth and final demand letter was issued to the allottee with a total cost of Rs.10,20,000/- in the draw held on 30.06.1998, the allottee requested for refund. A refund of Rs.1,01,752/- was generated in his favour without any competent sanction by the State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 11 of 54 Financial Advisor (Housing). Later on during enquiry, since no proper sanction was there and as the signatures and the address of the person who deposited the money were different from that of original allottee, after approval from the then Finance Member, DDA and Vice Chairman, DDA, the matter was handed over to the EOW, Delhi Police for necessary action. The detailed noting of PW5 in this regard was exhibited as Ex PW5/A. The witness was duly cross-examined by the Ld. Defence Counsel(s).
16. PW6 Sh. V.D Arora was shown DDA file No. F-178 (7)/94/SFS/JL/II pertaining to Accounts Branch having noting and correspondence bearing signature of DDA Officials. Since PW6 had seen signatures of Mahinder Kumar, H.R. Sharma and S.C. Chugh, the DDA officials, during course of his employment at DDA, he identified the signatures of Sh. S.C. Chug, Assistant Director, SFS Housing at point A on Ex P12, Ex PW6/1 to Ex PW6/18. Further, PW6 identified the signatures of Sh. Mahinder Kumar, Assistant Accounts Officer, SFS Housing at point B on Ex PW6/19 to Ex PW6/33, Ex PW6/4, Ex PW6/6 to Ex PW6/9. PW6 also identified the signatures of Sh. H.R. Sharma, Sr. Accounts officer, SFS Housing at point C on Ex PW6/7, Ex PW6/8, Ex PW6/9, Ex PW6/20, Ex PW6/23, Ex PW6/24, Ex PW6/25, Ex PW6/26, Ex PW6/28, Ex PW6/30, Ex PW6/31 and Ex PW6/32. PW6 further deposed that the duties expected from the Assistant Accounts Officer and Sr. Accounts Officer as per the prescribed procedure and practice were: (1) To follow the relevant provisions of General Financial Rules, Central Treasury Rules, Accounts State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 12 of 54 Codes, DDA Rules and Regulations etc. in the day-to-day working of the office; (2) To ensure that the refund application had been received from the original allottee and was in order. His signature tallied with the genuine signature available in the Housing Management File. The original allottee had furnished the documentary evidence in respect of change of address; and (3) To follow the policy and orders in a correct manner. PW6 further deposed that the policy dated 31.03.1999 with regard to charging of disposal cost of SFS Flat came into force with immediate effect and in that policy, there was no provision to reopen the past cases. Hence, in this case, cost was not to be reduced without the specific approval of Vice-Chairman. The witness was duly cross-examined by the Ld. Defence Counsel(s).
17. PW7 Sh. Virender Kumar, Retd. ACP deposed that on 11.11.2000, he was posted as an Inspector at EOW. The further investigation of the present case was assigned to PW7 as per order of the DCP (EOW). During investigation, PW7 seized the original opening form in the name of Sugan Chand Bajaj vide seizure memo Ex PW7/A. The original opening form along with Form No. 60 and signatures card was exhibited as Ex P15 (Colly), total three paper sheets. PW7 further deposed that on 29.11.2000, he arrested accused S.C. Chugh, Hari Prakash Garg, Mahinder Kumar and H.R. Sharma vide arrest memos Ex PW7/B, Ex PW7/C, Ex PW7/D and Ex PW7/E respectively. The personal search of accused Hari Prakash was conducted vide memo Ex PW7/F and his disclosure statement was recorded vide memo Ex PW7/F1. On transfer of State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 13 of 54 PW7, the present case file was handed over to Inspector N.K. Sharma for further investigation. PW7 correctly identified accused S.C. Chugh, Hari Prakash Garg and Mahinder Kumar. The witness was duly cross-examined by the Ld. Defence Counsel(s).
18. PW8 Sh. Naresh Chander, AO, DDA produced a certified copy of the policy dated 31.03.1999 (running into three pages) [Ex PW8/A (Colly)] and identified the signature of Sh. Sushil Kumar Sharma, Deputy Finance Advisor (Housing) II, DDA, Vikas Sadan, INA, New Delhi at point A, as PW8 had seen him writing and signing.
19. PW9 ACP Sanjeev Kumar deposed that on 11.11.2000, he was posted as SI in LBR Section, EOW. On that day, he endorsed the complaint filed by Sh. Amar Chatterjee, Director, Housing-I, DDA vide endorsement report Ex PW 9/A. After endorsement, PW9 handed over the complaint to the Duty Officer, PS KM Pur for registration of the FIR. During investigation, PW9 also collected the original DDA file on 13.11.2000 from the complainant i.e. Sh. Amar Chatterjee from his office. The original DDA file was seized vide seizure memo Ex PW9/B. Further investigation was handed over to SI Manoj Kumar Aggarwal. The witness was duly cross-examined by the Ld. Defence Counsel(s).
20. PW10 Sh. Amar Chatterjee (the complainant), Deputy Resident Commissioner, Bihar Bhawan, Government of Bihar deposed that in the year 2000, he was posted as Director, (Housing-
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 14 of 54 I), DDA, New Delhi. One Sugan Chand Bajaj was the original allottee under the 'V' SFS Housing Scheme and he was allocated a flat in Jasola. At the time of allotment in the year 1996, he was allotted a flat of Category-II in Jasola. As per record, his original address was at Double Storey Flat, Lajpat Nagar but it was found that his address was changed to Sarita Vihar without any request from his side. It was also found that the final demand letter of 'V' SFS Housing Scheme was sent to his address at Lajpat Nagar. Thereafter, on the basis of forged signatures of the original allottee, the demand was reduced by approximately Rs.1,10,000/- and it was also found that the refund cheque was sent to an absolutely new address of Old Delhi. He deposed that all thus indicates that at no point of time the original allottee was called by the officials of DDA to verify the genuineness of the documents or his signatures, and a connivance was found. PW10 further deposed that as the SPA holder of original allottee Sh. Sugan Chand Bajaj, who was shown as one Sh. Hari Prasad Garg, manipulated the documents with the connivance of the DDA officials to get undue benefits. PW10 made complaint in this regard to the police vide Ex PW10/A and handed over the original DDA files bearing No. F- 178(7)94/SFS-JL-II-PT5 in respect of Flat No. 7, Sector 7, SFS, Jasola, Delhi in favour of Sugan Chand Bajaj and file of HAU-IX bearing No. F-178(7)/94/SFS-JL-II to the IO, which were seized by him vide seizure memo Ex PW9/B. After seeing the management file which was handed over by PW10 to the IO, PW10 identified the signature of S.C. Chugh on Ex PW6/1 at point A, on Ex PW6/2 at point A, on Ex PW6/3 at point A, on Ex PW6/4 at point A, on Ex State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 15 of 54 PW6/5 at point A, on Ex PW6/6 at point A, Ex PW6/7 at point A, Ex PW6/8 at point A, on Ex PW6/10 at point A, on Ex PW6/11 at point A, on Ex PW6/12 at point A and B, on Ex PW6/13 at point A. PW10 identified the signatures of S.C. Chugh as he had worked with him in the regular course and received documents signed by him. PW10 could not identify the signatures of Mahinder Kumar and H.R. Sharma. PW10 further deposed that direction to file the complaint was received by him from Sh. D.B. Gupta, Commissioner Housing and the noting of PW10 in this regard was exhibited as Ex PW10/B. PW10 deposed that while accepting a SPA on record, the officials of DDA had to scrutinize the document on the point if they were old or new, the signatures of the original allottee on the documents were to be tallied with documents filed by the original allotee or SPA holder and examine the details of the Notary like entry in the register, stamp, date etc. on the document, the details of stamp vendor including the entry register, stamp, selling date etc. The DDA officials also were to check whether photograph of the original allotee and the SPA holder were affixed on the conveyance deed, as per the requirement of Indian Registration Act. He also stated that Assistant Director, SFS-I was the competent authority to hand over possession to SPA holder at that time. He concluded that as per record, he concluded that safeguards were not taken properly and there was error in the duties as well. PW10 correctly identified accused Mahinder Kumar and S.C. Chugh. The identity of accused H.R. Sharma was not disputed. The witness was duly cross-examined by the Ld. Defence Counsels.
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 16 of 54
21. PW11 Inspector Narender Kaur proved the endorsement made on the rukka vide Ex PW11/A and the carbon copy of the present FIR vide Ex PW11/B. The witness was duly cross- examined by the Ld. Defence Counsels.
22. PW12 Retired ASI Narender Pal deposed that IO Inspector Virender had arrested accused Hari Prakash Garg on 29.11.2000. He further deposed that the IO had also conducted personal search of the said accused and had recorded his disclosure statement. The identity of the said accused was not disputed by the Ld. Defence Counsel. The witness was cross-examined by the Ld. Counsel for the said accused.
23. PW13 ASI Bijender deposed that on 11.11.2000, he received rukka from SI Sanjeev, handed it over to the DO (PS Kotla Mubarakpur) and got the FIR registered. On 13.11.2000, PW13 again joined the investigation of the present case and he along with the IO went to DDA office from where the IO seized the original file through seizure memo Ex PW9/B. Further, on 04.12.2000, PW13 joined the investigation with Inspector Virender and the IO seized the original account opening form through seizure memo Ex PW7/A. The witness was cross-examined by the Ld. Counsel for accused H.P. Garg.
24. PW14 Sh. K.P. Lakshmana Rao deposed that on 22.02.2001, he was posted as Finance Member, DDA and on that day, he had State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 17 of 54 given sanction for prosecution of accused Mahinder Kumar, H.R. Sharma and S.C. Chugh. PW14 proved the written sanctions vide Ex PW14/A, Ex PW14/B and Ex PW14/C respectively. The witness was duly cross-examined by the Ld. Counsel for accused Mahinder Kumar, H.R. Sharma and S.C. Chugh.
25. PW15 Sh. D.R. Srivastava deposed that he was posted as Legal Assistant from approx. 1992 to 2001 at DDA Vikas Sadan, INA, New Delhi. He went to the office of Crime Branch where Management/Accounts Wing File No. 178(7)94/SFS/JL/II of Sugam Chand Bajaj was shown to him by the IO. After seeing the same, PW15 replied that the above mentioned file was not put up before him for legal opinion during his course of duty. During the course of his duty as Legal Assistant, whenever any file was put up before PW15, he used to check the legal documents and after examining the same, he opined on the same and used to forward the same to the Superintendent and Superintendent used to forward the same to Assistant Director. During duty, PW15 never used to check the genuineness and identity of the allottee and SPA holder. The same was checked by the Administrative Department. PW15 further deposed that he did not remember anything else as the matter was 23 years old. Statement of PW15 recorded under Section 161 (Ex PW15/A) of the Code of Criminal Procedure, 1973 (hereinafter "the Code") was shown to him and it was asked whether the same was deposed by him to the IO or not. PW15 replied that the contents from point A1 to A2 were not deposed by him to the IO. Since PW15 did not disclose the whole facts of the State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 18 of 54 case, he was cross-examined by Ld. APP for State.
26. PW16 Sh. Pawan Kumar Sharma deposed that he was working as Dealing Assistant till his superannuation i.e. March 2013. PW16 was called by the IO regarding the present case. Thereafter, he went to Crime Branch office where he met IO who showed PW16 his noting in management/accounts wing File No. 178(7)94/SFS/JL/II of Sugam Chand Bajaj. After seeing the same, PW16 replied that during his course of duty, whenever he received any letter regarding the above mentioned file, he used to put the same by marking his noting to Superintendent/Assistant Director. PW16 was shown the above mentioned original file and after seeing the same, PW16 identified his notings vide Ex PW6/2, Ex PW6/4, Ex PW6/5, Ex PW6/7, Ex PW6/8 and Ex PW6/11. PW16 also identified his noting vide Ex PW16/A. The statement of PW16 recorded under Section 161 of the Code (Ex PW16/B) was shown to him and asked whether the same was deposed by him to the IO or not, to which the witness replied that the said statement was never given by him. Since PW16 did not disclose the whole facts of the case, he was cross-examined by Ld. APP for State.
STATEMENT OF THE ACCUSED PERSONS UNDER SECTION 313 OF THE CODE
27. In their statement recorded under Section 313 of the Code, the accused persons denied the entire evidence against them. They stated that they are innocent and have been falsely implicated in this case. The accused persons/DDA officials led evidence in their State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 19 of 54 defence.
DEFENCE EVIDENCE
28. DW1 Ms. Indra, Dy. Director, SFS (Housing), DDA, Vikas Sadan, New Delhi deposed that the summoned document i.e. the terms and conditions attached with the Allocation-cum-Allotment letter in File No. 178(007)94SFS JL/II dated 10.03.1994- 15.03.1994 (5th SFS Scheme/allottee Sugan Chand Bajaj) was not traceable in the office record. The main file was not traceable and the part file did not contain the required documents. DW1 had brought the file noting in this regard vide Ex DW1/A (OSR) (two pages).
29. DW2 Ms. Sarvpreet, Accounts Officer, F&E, DDA, Vikas Sadan, New Delhi had brought the original service records and Establishment Order Book, showing the posting of Mahinder Kumar (Accountant/AAO) and JP Gupta (Accounts Officer) in DDA for the period from 1991-2000. JP Gupta was transferred from AO (Acctts.) Cash Main to FO to CE (Elect.) vide order dated 01.07.1994. The entry of service record in this regard was exhibited as Ex DW2/A (OSR) and office order dated 01.07.1994 was exhibited as Ex DW2/B (OSR). JP Gupta was transferred from CE (Elect.) to A.O. (P.E.) vide order dated 12.05.1997. The entry of service record in this regard was exhibited as Ex DW2/C (OSR) and office order dated 12.05.1997 was exhibited as Ex DW2/D (OSR). JP Gupta was transferred from A.O. (Plg. Estt.) to AO State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 20 of 54 (HAC) vide order dated 30.03.1999. The entry of service record in this regard was exhibited as Ex DW2/E (OSR) and office order dated 30.03.1999 was exhibited as Ex DW2/F (OSR). JP Gupta was transferred from AO (SFS)I to NPRS(EZ) vide order dated 04.10.1999. The entry of service record in this regard was exhibited as Ex DW2/G (OSR) and office order dated 04.10.1999 was exhibited as Ex DW2/H (OSR). Mahinder Kumar was transferred from AO (CE) to WD-7 vide order dated 07.10.1994. The entry of service record in this regard was exhibited as Ex DW2/I (OSR) and office order dated 07.10.1994 was exhibited as Ex DW2/J (OSR). Mahinder Kumar was transferred from WD-7 to HAU-9 vide order dated 16.03.1998. The said office order dated 16.03.1998 was exhibited as Ex DW2/K (OSR). The entry in the service book regarding the same was not made. The covering letter regarding the same was exhibited as Ex DW2/L.
30. DW3 Sh. Bal Mukund Tiwari, Dy. F.A. (H)II, DDA, Vikas Sadan, New Delhi had brought the original copy of letter dated 09.11.2006 issued from File No. Jt.FA(H)-I/RTI-05/3853/233 forwarding therewith the copy of reply dated 08.11.2006 issued by the office of the then Deputy Financial Advisor, (Housing) II/DDA bearing No. F/21(MISC.)06/SFS-II/RTI/3853/126 in reply to the query raised by Sh. Mohinder Kumar vide his application dated 11.10.2006 bearing No. 3853 under Right to Information Act, 2005. The said document was exhibited as Ex DW3/A (Colly) (OSR)(two pages).
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 21 of 54
31. DW4 Sh. Harish Kumar, Director (Housing-I), DDA, Vikas Sadan, INA, New Delhi had brought the copy of the reply dated 13.05.2008 from the office of the then Director, Housing-I/PIO, DDA vide letter No. 2047/PIO/D(H)-I/08/2640 along with letter No. F.22 (101) 2005 - 06 / HOUSING / A / CS / COORDINATION / 75 dated 08.04.2008 under RTI Act, 2005. The original of the same was not traceable and hence, copy of the same had been brought to the court which was marked as Mark DW4/A (Colly). DW4 had also brought the office order dated 17.11.1999 issued from the office of the then Joint Director (SFS), DDA as provided to Sh. S.C. Chugh vide reply dated 05.02.2018 issued under the RTI Act, 2005 by the office of the then Asstt. Director (SFS), DDA vide letter No. F.1(Misc.)/18/RTI/SC/SFS/82. The same was exhibited as Ex DW4/B (OSR) and copy of the office order dated 17.11.1999 was marked as Mark DW4/C.
32. DW5 Sh. Abhilash Harit, AAO (F&E), DDA, Vikas Sadan, INA, New Delhi had appeared on behalf of Chief Accounts Officer, DDA with authority letter vide Ex DW5/A. He had brought the original Service Book and Establishment Order Book w.r.t. posting orders of H.R. Sharma, Sr. Accounts Officer pertaining to 1992 to 2000 with written reply of Chief Accounts Officer vide Ex DW5/B. The photocopy of the Service Book and EO Book running into eight pages was exhibited as Ex DW5/C (Colly) (OSR).
33. DW6 Sh. Nitin Kumar Sharma, Sr. Secretariat Assistant, DDA, Vikas Sadan, INA, New Delhi had appeared on behalf of the State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 22 of 54 Commissioner, Personnel, DDA. He had brought the copy of the Establishment Order No. 792 dated 22.05.1998 which was the transfers/postings of the Asstt. Directors in which the name of accused S.C. Chugh reflected at Sl. No. 25 at point A which said that on promotion dated 15.04.1998, he was posted as Asstt. Director which was marked as Mark DW6/A (running into three pages). The original of the aforesaid document was not readily available with the records of the DDA.
34. DW7 Sh. Prahlad Narayan, Judicial Assistant, Court of ACMM (South), Saket Courts, New Delhi had brought the original judicial file of case FIR No. 422/2000, PS KM Pur, titled 'State vs. Neeru Kalra'. He had also brought the photocopy of DO No. PA/FA(H)/2001/DDA/1 dated 05.01.2001 which was written by the then Financial Advisor (Housing), namely, Sh. Atul Kumar Rai in response to letter No. 2010/ACP/LBR/EOW/Crime Branch dated 08.12.2000. The copy of the same was marked as Mark DW7/A. ANALYSIS AND FINDINGS
35. The record has been thoroughly and carefully perused. The respective submissions of Sh. Naresh Choudhary, Ld. APP for State, Sh. Soumitra Chatterjee, Ld. Counsel for accused Mahinder Kumar, S.C. Chugh and H.R. Sharma and Sh. Rajeev Katyain, Ld. Counsel for accused M.G. Shenoy have been considered.
36. The accused persons have been charged of the offences State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 23 of 54 punishable under Sections 120B/419/420/467/468/471 IPC.
Relevant Sections
37. Sections 415 (which defines cheating), 416 (which defines cheating by personation), 419 (which prescribes the punishment for commission of cheating by personation) and 420 IPC (which prescribes punishment for commission of cheating and dishonestly inducing delivery of property) are reproduced below:
"415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation - A dishonest concealment of facts is a deception within the meaning of this section.
416. Cheating by personation - A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.
Explanation - The offence is committed whether the individual personated is a real or imaginary person.
419. Punishment for cheating by personation - Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
420. Cheating and dishonestly inducing delivery of property - 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 State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 24 of 54 security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
38. The Hon'ble Supreme Court in Mohammed Ibrahim and others vs. State of Bihar and another [(2009) 8 SCC 751] has observed the following relating to the offence of cheating:
"The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any persons or to intentionally induce that persons so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind reputation or property.
To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."
39. Section 467 IPC provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 478 IPC provides that whoever commits forgery, intending that the document or electronic record shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 25 of 54 also be liable to fine. Section 471 IPC provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 IPC defines a forged document as a false document made by forgery. The condition precedent for an offence under Sections 467, 468 and 471 IPC is forgery. The condition precedent for forgery is making a false document.
40. The term "forgery" is defined in Section 463 IPC. Section 463 IPC is reproduced below:
"Section 463 - Whoever makes any false documents with in- tent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be commit- ted, commits forgery."
41. Section 464 IPC defines "making a false document" and is reproduced below:
"Section 464 - Making a false document.- 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;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 26 of 54 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 digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly. - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital 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 or electronic record or the nature of the alteration.
Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery."
42. The Hon'ble Supreme Court of India in Mohammed Ibrahim [Supra, Para 37] has held the following with respect to making of a false document:
"10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 27 of 54 in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
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 authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
43. Having discussed the Sections of the IPC applicable in deciding the instant case, the next part of the judgment discusses whether the prosecution has been able to prove the commission of the offences charged against the accused persons beyond reasonable doubt.
Re: Accused DDA Officials (Accused no. 1, 2 and 3)
44. The first allegation w.r.t. the Accused DDA Officials is that the request letter dated 21.01.1999 for reduction of cost received from the original allottee Mr. Sugan Chand Bajaj was a fake one. The FSL report has not been exhibited during the trial by way of admission by the accused persons under Section 294 of the Code or by way of examining the official who prepared the report and hence, cannot be read in evidence. In arguendo, even if the FSL report is read in evidence, it does not help the prosecution in establishing that the request was a fake one on account of the State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 28 of 54 following reasons:
a) The FSL Report Number 2001/D-0525 dated 20.06.2002 is on record. As per the report, no opinion could be expressed on the authorship of "Q1" (the signature of the original allottee Mr. Sugan Chand Bajaj in the allegedly forged application filed for reduction of cost) when compared with specimen signatures i.e. "S1" (admitted signature of original allottee Mr. Sugan Chand Bajaj in the letter sent by the original allottee to the Deputy Director, SFS, DDA w.r.t. the third copy of challan for an amount of Rs. 2,81,000) and "S2 to S8" (specimen signature of deceased accused H.P. Garg). Therefore, there is no forensic evidence on record to conclude that the request letter dated 21.01.1999 was forged.
b) PW2 Sugan Chand Bajaj has deposed in his examination in chief that documents Ex. P1 to P13 do not bear his signatures. It is pertinent to note that Ex. P1 is the request letter received by DDA for reduction of cost which is averred to be fake. The signature of PW2 in Ex. P1 which is alleged to be forged had been sent for comparison with the signature of PW2 in one front letter sent by him to DDA while submitting the third copy of the challan for Rs. 2,81,000 dated 28.07.1994. However, the said document (containing the specimen signature) has not been proved by the prosecution as the said document has not been put to PW2 during his examination in chief. PW2, at no point, has State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 29 of 54 admitted his signatures in the document which has been sent as specimen signature by the IO. In Muddasani Sarojana vs. Muddasani Venkat Narsaiah and others [AIR 2007 AP 50], it was held that Section 67 of the Evidence Act mandates that the signature and handwriting of a person on a written document can be proved, only by examining the person concerned. It was also observed that when a person is available and alive, attempt to prove his signature or handwriting, by examining third person as a witness, would have its own drawback. In this background, the document which has been sent as specimen signature of PW2 cannot be read in evidence as it has not been proved and the signature in the said document cannot be termed as an "admitted signature".
c) In Basi Bewa vs. Raimani Majhiani [2023 SCC OnLine Ori 2293], it has been held that the specimen document taken for comparison of writing or signature in the purported document must be undisputed one and all parties to the dispute must admit the specimen signature or writing in the base document. It is pertinent to note that there is no such material available on the record from where it can be said that any such specimen signatures were taken in the presence of the accused persons. As the accused persons have refused to admit the specimen document, it is incumbent on the court to first satisfy that the signature or writing on the specimen document is proved to be of the concerned person and only then proceed for comparison with State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 30 of 54 the purported document. As mentioned earlier, the document sent as a specimen has not been proved by PW2. Therefore, the specimen/admitted signatures have not been proved in the Court and hence, the basis of the entire FSL examination is doubtful. Therefore, the report of the FSL (apart from being inadmissible in evidence) and its conclusions cannot enure to the prejudice of the accused persons.
d) There is another major lacunae in the investigation. PW2 Sugan Chand Bajaj was a part of the investigation from the very beginning. His specimen signatures/ handwriting ought to have been procured and sent to FSL for comparison with the questioned signatures. No explanation has been furnished by the IO for not procuring specimen signatures/handwriting of PW2 during the investigation. This has, undoubtedly, fundamentally prejudiced the prosecution case as the FSL report has been sought on documents which have not been properly collated.
45. This Court is cognizant that PW2 Mr. Sugan Chand Bajaj in his examination in chief dated 07.10.2013 has denied his signatures in Ex. P1 to P13. However, his deposition is not credible as he during investigation, never denied his signatures in said documents and was not properly examined by the investigating agency. PW2 Sugan Chand Bajaj never informed/ disclosed to the IO that he had sold the booking receipt to one Chunni Lal. During his cross- examination, PW2 was confronted with a General Power of Attorney, Will and Receipt purportedly executed by him in favour State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 31 of 54 of one Mr. Gaurav Bhatnagar, however, he denied his signatures on the said documents. Therefore, PW2 Sugan Chand Bajaj has denied his signatures on the documents purportedly executed by him in favour of Mr. Gaurav Bhatnagar as well as deceased accused H.P. Garg. In this background, considering the large-scale forgery which is alleged to have been committed of Mr. Sugan Chand's signatures, he ought to have filed a complaint re: forgery of his signatures. However, PW2 has not initiated any action qua said forgery, which raises suspicion as to whether PW2 is approaching this Court with clean hands. It appears that having sold his booking receipt (in violation of DDA's Rules), he was also complicit in the affairs of deceased accused H.P. Garg. Therefore, as mentioned above, his entire testimony appears to lack credibility. Further, the complicity of PW2 and the role of said Chunni Lal and Gaurav Bhatnagar could have been examined by the IO, only if PW2 had been joined in the investigation. As deposed by PW2 in his cross- examination, he was never contacted by the investigating agency nor his statement was recorded during investigation. Therefore, the investigation has been conducted in a perfunctory manner with preconceived conclusions which has resulted in incorrect conclusions re: criminality in the actions of the accused persons. On the basis of the above, it is the considered opinion of this Court that the prosecution has not been able to establish that the request letter dated 21.01.1999 for reduction of cost received from the original allottee Mr. Sugan Chand Bajaj was a fake one.
46. The second allegation is that the accused DDA officials State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 32 of 54 recommended reduction of cost without the specific approval of competent authority i.e. Commissioner (Housing)/Vice Chairman, DDA to give undue benefit to deceased accused H.P. Garg. There are two aspects in this issue. With respect to the allegation that the payment was regularized illegally by the DDA officials, it is pertinent to note that Joint Director, SFS Mr. K.C. Saxena has noted in the office file that "The delay period of payment i.e. 3 days after permissible period may also be regularized along with permission to reconstruct the file for processing the case further." The file has then been marked to Director (Housing)/Acting Commissioner (Housing) wherein he has approved the noting of Joint Director (SFS) and stated that allotment be done subject to availability of flats. Firstly, the IO has not conducted any investigation on the point as to the competent authority for regularization of payment. Secondly, the regularization has been approved by the Acting Commissioner (Housing). Thirdly, if the case of the prosecution is that the regularization/reduction of cost had been wrongly processed to the detriment of DDA, the Joint Director (SFS) also ought to have been arrayed as an accused, however, no reasons have been accorded by the investigating agency for giving him a clean chit.
47. The second aspect is with respect to applicability of policy dated 31.03.1999 in the present matter. PW1 Ms. Illa Singh admitted in her cross-examination that on the basis of the public hearing held by the then Vice-Chairman, DDA dated 27.08.1999, she had put up the cases to the then Vice Chairman for his State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 33 of 54 consideration on the issue wherein payments from the allottees had been received prior to 22.08.1996 and demand letters issued as per the policy of 05.11.1998 were to be re-examined and revised as per the policy dated 31.03.1999 or not. In this regard, office note dated 02.09.1999 (Ex. DW1/A) was put to the then Commissioner, Housing, DDA on 06.09.1999, when it was proposed by the then Commissioner, (Housing), DDA that DDA should stick to the policy dated 31.03.1999. The note dated 06.09.1999 of the then Commissioner, Housing was also approved by the then Vice Chairman, DDA on 07.09.1999 vide (Ex. DW1/B). Subsequently, on the basis of the above said approvals and further file noting, it was clarified on 13.10.1999 that on the basis of discussion by PW1 Ms. Ila Singh with Commissioner (Housing), DDA and on his approval, it was decided that no differentiation has to be made in the cases on the basis of the issuance of demand letter, possession letter etc. and the policy dated 31.03.1999 (Ex. DW1/C) has to be complied with. During cross-examination by Ld. APP for State, she clearly deposed that since the VC, DDA had already taken a decision to decide the cases as per the policy dated 31.03.1999, hence, it was not required to send the file again to the VC, DDA on this issue which was regarding policy of 31.03.1999. Therefore, PW1 has clearly deposed that there was no irregularity in charging of the old cost in the present case in view of the policy dated 31.03.1999. In this background, it is clear that no criminality can be imputed to the official actions of the accused persons. Further, the investigating agency has not been able to unearth any nexus between the accused DDA officials and the deceased accused H.P. State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 34 of 54 Garg as no cheating/crime proceeds have been linked to the accused DDA officials to indicate existence of any criminal conspiracy re: charging of old cost in the present case as even the DDA officials who have appeared as prosecution witnesses have not deposed that the charging of old cost was illegal.
48. The third allegation is that a sum of Rs. 1,01,752 was refunded vide cheque number 46120 dated 03.01.2000 without seeking approval of the competent authority. It is pertinent to note that PW5 Mr. D.B. Gupta (the then Commissioner, Housing, DDA) deposed on oath that traditionally the powers of the Vice Chairman, DDA were exercised by the Financial Advisor (Housing), DDA who could not sub-delegate the powers to subordinate officers. In this context, he further deposed that as in the present case, refunds were made without proper sanction of the Financial Advisor (Housing), DDA, he recommended for cancellation of the flat to the Vice Chairman, DDA. He also deposed that the refund was processed without sanction of the Financial Advisor (Housing), DDA which was an irregularity from the process duly followed. On this issue, the following points are worth noting:
a) PW1 Ms. Ila Singh who was posted as Financial Advisor (Housing) DDA, Vikas Sadan, INA, New Delhi at the relevant time deposed that all allottees who were covered under the policy dated 31.03.1999 (Ex. PW8/A) were eligible for refunds from DDA. She elaborated that file was put up before VC, DDA for orders whether cases wherein State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 35 of 54 payment had been received prior to 22.08.1996 and demand letters were issued as per the previous policy of DDA dated 05.11.1998 were to be revised and re-examined as per the policy of 31.03.1999. The VC, DDA vide his order dated 07.09.1999 agreed on the note of the then Commissioner (Housing) to issue the demand letter as per the policy of 31.03.1999 as the policy was to come into force with immediate effect. PW1 deposed with clarity that as VC, DDA had already taken a decision to decide the cases as per policy dated 31.03.1999, hence, it was not required to send the file again to the VC, DDA on the issue of reduction of cost on the basis of said policy.
b) PW5 has deposed in his cross examination that Vice Chairman, DDA was the final authority for all the allotments and refunds by DDA. He has further stated that the Financial Advisor (Housing) used to be the final authority to sanction refunds as per the prevailing practice. Whilst no such document has been placed on record by the prosecution establishing that the final authority to sanction refunds was the Financial Advisor (Housing), it is also further pertinent to note that PW1 who was the Financial Advisor (Housing) at the relevant time has not stated that the procedure adopted in the present matter while processing the refunds was faulty. For reasons best known to the prosecution, no pertinent questions were put to PW1 Ms. Ila Singh as to whether refunds were made without sanction by her. Also, to the detriment of the prosecution's case, in her cross-
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 36 of 54 examination, she replied that she did not recall who was the competent authority with regard to refund.
c) It is a matter of record that PW5 D.B. Gupta has admitted that there is no mandate that specific approval had to be taken for making refunds to the allottees in each and every case. The reply dated 08.04.2008 of DDA under Right to Information Act, 2005 (Ex DW4/A) is relevant as per which there was no such office order/circular prior to September 2000 in DDA with regard to the competency of refund of the excess amount to an allottee by DDA. It is also pertinent to note that the accused DDA officials have placed on record the letter dated 05.01.2001 of the then Financial Advisor, (Housing), DDA (Mark DW7/A) as per which Accounts Officers were exercising their powers for making refund as a matter of practice in DDA at the relevant time. Therefore, there was no specific mandate to obtain written approval at the time of refunds.
d) The cheque was sent at the registered address of the allottee as available on record. The prosecution has not been able to prove that the address was changed wrongfully or with a mala fide criminal intention by the accused DDA officials. No material has been placed on record by the prosecution proving that the procedure for change of address of an allottee under the Scheme had purportedly not been followed in the present case.
e) The refund cheque has been deposited in the joint bank account in the name of the original allottee Sugan State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 37 of 54 Chand Bajaj and deceased accused H.P. Garg. If the allottee (who was the rightful recipient of the refund) had any objections qua the refund, he ought to have taken steps. Also, PW2/original allottee Sugan Chand Bajaj has stated that he had already sold the booking receipt and therefore, was he even entitled to the refund? Further, as this is not a case of remittance of excess amount as refund, can it be said that there was an unlawful loss to the DDA?
f) The policy dated 31.03.1999 was in-rem and DDA was obliged to make refunds to all the allottees in case they were found to be covered within the policy dated 31.03.1999 and there was no need for any specific application by an allottee meaning thereby that even if no such application would have been made, DDA was obliged to make refund to Mr. Sugan Chand Bajaj, if he was covered by the policy dated 31.03.1999 which as can be seen from the DDA file, he was eligible for as noted and approved by the FA(Housing).
g) The accused DDA officials have placed on record Ex. DW4/B which is the reply to the RTI application filed by accused S.C. Chugh regarding powers of various officers of Finance Wing to make refund of excess amount on account of reduction of cost for SFS. In the reply dated 08.04.2008, it has been clarified that no orders/circulars are available which may indicate powers to refund excess amount on account of reduction in cost prior to September 2000 in SFS Housing Accounts Wing. In fact, PW10 Amar Chatterjee, Director (I), State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 38 of 54 Housing, DDA has deposed that as per para 2 (i) of this policy, all those allottees who have paid their demanded amount prior to 22.08.1996 were supposed to be charged the old cost plus interest. He has further deposed that irrespective of the fact that the possession was handed over on or to an allottee, the refund was to be made to an allottee as per para 2 (i) of this policy.
49. In view of the above discussion, it is the considered opinion of this Court that the prosecution has not been able to establish that the refund check was wrongfully prepared without the approval of the competent authority. As discussed above, even the senior officials of DDA have deposed that approval of the competent authority was not required in each and every case and therefore, the accused DDA officials cannot be faulted for processing the refunds as per the policy dated 31.3.1999.
50. The fourth allegation is that procedural checks and balances were not exercised while processing the reduction of cost application and issuance of refund cheque and the entire process was completed within a day. It is elaborated that the accused DDA officials did not tally the signatures of original allottee Mr. Sugan Chand Bajaj with the genuine signatures already available on the file. They also did not doubt the fact that a different address was given by the property dealer on behalf of original allottee i.e. Sugan Chand Bajaj.
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 39 of 54
51. On the issue of the cheque being sent to an address different from that of the original allottee, it is pertinent to note the following:
a) Firstly, the documents pertaining to change in address of the original allottee Sugan Chand Bajaj is not available even with the DDA as the original file was misplaced and subsequently reconstructed in 1996. PW10 Amar Chatterjee has admitted in his cross-examination that the original DDA file of the allottee was misplaced by DDA in which the application for change of address of the allottee might have been there and which was missing in the subsequent file which was reconstructed at a later date by the DDA.
Therefore, the fact whether there was a request for change in address or not cannot be ascertained in the absence of the said file.
b) Secondly, as the change in address was actioned before the posting of the accused DDA officials at the relevant Department, the investigating agency ought to have conducted an investigation as to the officials posted at the relevant time (i.e. in the year 1994) when the postal address of the allottee i.e. PW2 Mr. Sugan Chand Bajaj was changed from Lajpat Nagar to Sarita Vihar. Further, it is an admitted position that the original allottee could change his address by intimating the DDA and therefore, the change in address of the original allottee could not be said to be inadmissible and the IO ought to have placed some material on record to State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 40 of 54 substantiate as to why the change in address was illegal.
c) Procedural lapses have not been pointed out by the prosecution as the refund cheque was prepared in the name of original allotee, namely, Mr. Sugan Chand Bajaj and was posted at the latest address of Sarita Vihar as available in the file of the allotee.
d) The office order dated 17.11.1999 issued by the Joint Director (SFS) is abundantly clear that the refund cheques were to be prepared in the name of the original allottee and sent to the current address as available on record. This clearly shows that no illegality or in fact, irregularity was present in the processing of refund cheque in the name of the original allottee Sugan Chand Bajaj and dispatch of the said cheque to the address of the allottee as available on record. No criminality can be imputed on the accused DDA officials for fulfilling their official duties as per procedure laid down by the DDA.
52. On the allegation that the procedural checks and balances were not exercised while processing the reduction of cost application and issuance of refund cheque as the entire process was completed within a day, it is pertinent to note that the application dated 21.01.1999 which was received by office of Commissioner (Housing), DDA was processed between 21.01.1999 and 24.09.1999 by eight different officials from the lowest posts to the highest posts in the management and the finance wing of DDA and which remained for 246 days with various officials was finally State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 41 of 54 approved by Dy. Financial Advisor/Housing to charge the old cost of flat from the allottee as per the policy dated 31.03.1999. Finally, the refund cheque was issued on 03.01.2000. Therefore, the allegation that the file was processed in a single day is not backed by any material.
53. On the issue that the accused DDA officials ought to have observed that the payments of the instalments were not made by the original allottee, the said aspect has not been investigated by the IO as there is no material as to who deposited the instalments and whether it was unlawful and/or illegal to deposit the instalments on behalf of PW2 Mr. Sagun Chand Bajaj. Further, there is nothing on record to state that the instalments were accepted by the accused DDA officials as there is no investigation as to whether the said accused persons were posted at the concerned Department at the time of acceptance of instalments. Further, it is pertinent to note that PW5 has admitted that there was no such provision stipulated in the brochure that only the allottee was supposed to deposit the demanded instalment to DDA. As per document Ex. PW5/X1, it is admitted that the money could have been deposited by tenderer. The IO ought to have placed on record the terms and conditions of the 05th SFS Scheme governing the allotment made to PW2 Mr. Sugan Chand Bajaj. The non- production of the said SFS Scheme renders the averment of the prosecution a mere assertion which has not been proved.
54. The fifth allegation is that the possession letter of the flat State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 42 of 54 was handed over to deceased accused H.P. Garg on the basis of a forged receipt/affidavit etc. which was apparently forged. It is averred that the accused DDA officials did not call the original allottee before handing over the possession letter to the GPA holder despite discrepancies in the documents such as addition of flat number, name and address in different ink/typewriter on all the affidavits/undertaking/SPA, proper notarization and stamp not being visible etc. The accused DDA officials did not bother to verify the age of documents which were apparently old/new from the first look and appearance. The said documents were accepted without any objection and the possession letter as well as physical possession of the flat was handed over to the SPA on the basis of the fake documents which shows the malafide intention and connivance with the property dealer.
55. PW10 Amar Chatterjee has admitted that there was no other document required for handing over the possession to an allottee/SPA holder except as mentioned in Ex. PW6/10 and the dealing assistant and Superintendent (SFS) were obliged to verify the documents as per the list and only after their endorsement, the file was put before the Assistant Director. He further deposed that at the time of handing over the possession, the documents were to be scrutinized on the point if they were old or new, signature of the original allottee on the documents must be tallied with documents filed by the original allottee or SPA holder, the details of the Notary like entry in the register, stamp, date etc. on the document, the details of stamp vendor including the entry register, stamp, selling State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 43 of 54 date etc., there must be photograph of the original allottee and the SPA holder on the conveyance deed, as per the requirement of Indian Registration Act. However, in his cross-examination, he admitted that there is no codified duty and responsibility of Assistant Accounts Officer, Accounts Officer and the Assistant Director to scrutinize the documents on the point, if they were old or new, the signatures of the original allottee on the original document were matching with those documents filed by the original allottee or SPA holder. He further admitted that none of the accused DDA officials were obliged to call for the register of the Notary and check the stamps and date etc. and to verify the details of the stamp vendor etc.
56. It is not the case of the prosecution that the stamp paper was fake. It is averred that the stamp paper was old and the stamp was not properly visible. It is pertinent to note at this juncture that there is no impediment in law w.r.t. usage of old stamp paper. The Hon'ble Supreme Court of India in Thiruvengada Pillai vs. Navaneethamal [(2008) 4 SCC 530] has held that "the stipulation of period of six months prescribed in Section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper". The Court concluded by stating that there is no impediment in using a stamp paper which may have been purchased more than six months prior to its use in a document. Therefore, there is per se, no embargo in usage of an old stamp paper.
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 44 of 54
57. Even the prosecution witnesses have not satisfactorily deposed re: the lapses in the procedure adopted by the accused DDA officials in processing the file. PW 15 D.R. Srivastava did not depose in conformity with his statement recorded under Section 161 of the Code and has not aided the case of the prosecution. In his statement under Section 161 of the Code (Ex. PW15/A) has deposed that in the file of the original allottee Mr. Sugan Chand Bajaj, legal opinion was not sought with respect to the documents that is the SPA and the affidavit filed for possession of the flats. He further stated had the file been sent to him for scrutiny in his capacity as legal assistant, he would have noted that the SPA did not contain the photographs of the SPA holder and the original allottee and no valid reason for execution of the said SPA had been mentioned in the document. He has also stated that despite deficient documents, accused SC Chugh issued the possession letter which is illegal. Contrary to his statement under Section 161 of the Code, PW15 deposed that in his capacity as legal assistant, he never used to check the genuineness and identity of the allottee and SPA holder and the same was checked by the Administrative Department. In this background, it cannot be said to have been proved that the accused DDA officials were to check the identity of the SPA holder while issuing the refund cheque.
58. Similarly, PW16 Pawan Kumar Sharma did not depose in conformity with his statement under Section 161 of the Code (Ex. PW16/B). During investigation, he stated that he was working as Dealing Assistant, DDA at the relevant time and the accused SC State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 45 of 54 Chugh had personally called him and instructed him to put certain documents of accused H.P. Garg inside the file of original allottee Sugan Chand Bajaj without getting them scrutinized by the Legal Assistant. PW16 resiled from his statement under Section 161 of the Code during his deposition dated 14.09.2023 before the Court.
59. The Investigating Official has not taken efforts to go through the DDA file as the Dealing Assistant endorsed on the file that the documents have been checked and found to be in order. It is a matter of record that relying upon such note of the Dealing Assistant and the Superintendent, the possession of the flat was handed over to the attorney of the allottee. The author of the said note i.e. PW16 Mr. Pawan Kumar Sharma, the then Dealing Assistant, DDA who had put the allegedly forged papers in the file of the allottee PW2 Mr. Sugan Chand Bajaj, has been joined as a witness and not as an accused and no reasons have been accorded for the same. In continuation, the prosecution has not placed on record any document to show that the accused DDA officials were duty bound to verify the genuineness of the documents such as request letter or the special power of attorney. The Investigating Official ought to have placed on record the duties/responsibilities of the accused DDA officials showing that there has been a criminal lapse on the part of the DDA officials. The reply dated 08.11.2006 of DDA bearing under Right to Information Act, 2005 (Ex. DW3/A) clearly states that duties and responsibilities of Assistant Accounts Officers and Accounts Officers were not specified in the Housing Accounts Wing of DDA. Bald averments State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 46 of 54 re: manipulation of SPA by the deceased accused H.P. Garg with the connivance of the accused DDA officials cannot attune to the prejudice of the accused DDA officials as the prosecution has to prove the conspiracy beyond reasonable doubt.
60. Going by the case of the prosecution, if the allottee was not eligible to transfer the flat by way of a SPA as per DDA policy, the conveyance deed and possession letter ought to have been cancelled. It is pertinent to note that no such proceedings have been initiated by the DDA and therefore, this casts aspersion as to whether the DDA has been able to conclude internally that there has been any contravention of the DDA policy. PW5 deposed that he proposed cancellation of the allottment of the flat in question and initiation of eviction proceedings for taking back the physical possession of the flat vide office order/noting which is Ex. PW5/A. However, as admitted by PW5, no such action was taken by DDA. PW10 Amar Chaterjee has admitted that Commissioner (Housing) gave specific direction to him on 03.11.2000 to take a legal opinion towards cancellation of the allotment of the flat in question. However, no action was taken with respect to cancellation of the flat and eviction of the possessor of the flat. This raises the question whether the said cancellation was not actioned as there was no illegality with respect to allotment of the flat to the allottee Mr. Sugan Chand Bajaj.
61. The Ld. Counsel for accused DDA officials has also questioned the sanction accorded by the sanctioning authority i.e. State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 47 of 54 PW14 Mr. K.P. Laxman Rao, the then Finance Member, DDA on the ground that it is defective and has not been accorded after considering the material, facts and evidence. Reliance has been placed on the decision of the Hon'ble Supreme Court in Mansukhlal Vithaldas Chauhan vs. State of Gujarat [1997 (7) SCC 622], wherein it has been held as follows:
"18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority."
62. PW14 i.e. the sanctioning authority has been cross-examined in detail and he could not depose with clarity as to the relevant material that was placed before him at the time of according sanction. Further, the present DDA file was processed through various officials other than the accused DDA officials, however, no reasonable explanation has been filed/given for not indicting the other officials who also played a part in issuance of possession letter and refund cheque. There ought to have been some material on the basis of which the accused DDA officials were concluded to be the perpetrators of the alleged offences, however, no such material has been placed on record, which creates an aspersion on the manner in which sanction was given. The prosecution has not been able to furnish any satisfactory explanation to this over- arching issue.
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 48 of 54 Re: Accused M.G. Shenoy
63. At the outset, it is observed that no investigation has been conducted qua accused M.G. Shenoy. Firstly, accused M.G. Shenoy was not arraigned as an accused in the main chargesheet. Subsequently, he was mentioned as an accused in the supplementary chargesheet. The primary allegation qua said accused is that he was the Senior Branch Manager, Corporation Bank, Sarita Vihar where the deceased accused H.P. Garg opened a fake bank account in the name of the original allottee Mr. Sugan Chand Bajaj by affixing an old photograph of Mr. Sugan Chand Bajaj and forging his signatures in the account opening form and then encashed the cheque of Rs. 1,01,752.
64. It is averred that accused M.G. Shenoy helped accused H.P. Garg to open a fake account in the name of the original allottee as the original allottee stated that he never visited the bank and did not open the bank account. The original allottee Sugan Chand Bajaj also denied his signatures on the account opening form. It is stated in the chargesheet that as per RBI Instructions Manual, it is mandatory that the account holder must visit the bank physically and after verifying the identity and obtaining documents relating to identity and address, the account holder has to sign the account opening form before the officer of the bank opening the bank account. It is stated that accused M.G. Shenoy was criminally culpable as he did not comply with the said guidelines.
State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 49 of 54
65. Firstly, the IO did not send the signatures of Mr. Sugan Chand Bajaj in the account opening form (Ex. P15) and documents submitted along with the account opening form to FSL as questioned signatures/handwriting for forensic examination by comparing the said signatures with the specimen signatures of Mr. Sugan Chand Bajaj which ought to have been obtained during investigation. Further, PW3 IO Manoj Kumar deposed that he seized the signature card of PW2 Mr. Sugan Chand Bajaj from the bank vide seizure memo (Ex. PW3/A) and sent the same to the Forensic Science Laboratory for its expert opinion. However, the said document is not a part of the documents which were sent to FSL and hence, no report is there on record w.r.t. the genuineness/fakeness of the signatures of the original allottee in the signature card. This further fortifies the conclusion that the entire basis of the FSL report was flawed from the outset. Secondly, the prosecution has not placed any material on record to show that it was mandated by Reserve Bank of India that the account holder must visit the bank physically and after verifying the identity and obtaining documents relating to identity and address, the account holder has to sign the account opening form before the officer of the bank opening the bank account. Thirdly, as per the documents filed with the bank, the account was opened by one Mr. Prasoon Agarwal as the introducer. The IO has not taken any steps to join said Prasoon Agarwal in the investigation and examine him as he would have thrown light on whether the bank account opening form was signed by Mr. Sugan Chand Aggarwal in his presence or State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 50 of 54 the account was opened fraudulently. The said aspect has been overlooked by the investigating agency. Fourthly, not even a single witness has been examined from Corporation Bank who could have deposed that the bank account was opened in an illegal manner in criminal conspiracy with the accused banker.
66. Whilst the IO has concluded that the bank account was opened in an unauthorized manner, the said fact could have been established only by examining witnesses from the concerned bank who could have deposed as to whether the bank account was opened in an improper manner which was not in compliance with the general practice of the bank. No such witnesses from the bank have been examined. The bank policy w.r.t. joint accounts has also not been placed on record. Criminal liability cannot be fastened on the basis of conjectures and bald averments. Therefore, accused M.G. Shenoy ought to be acquitted as not even an iota of incriminating material has been placed on record against him in the entire chargesheet.
Re: Criminal Conspiracy amongst accused persons punishable under Section 120B of the IPC CONCLUSION
67. With respect to the offence of cheating, the prosecution has not been able to prove beyond reasonable doubt that the accused persons had fraudulent or dishonest intention at the time of making promise or representation. The issuance of possession letter or the State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 51 of 54 refund cheque on the last known address of the allottee is found to be as per procedure prevalent in DDA at the relevant time and no criminal element of mens rea can be imputed on the accused persons. The prosecution has not been able to unearth any material to show that the accused DDA officials or accused M.G. Shenoy made any wrongful gain by way of processing the refund request in favour of the original allottee Mr. Sugan Chand Bajaj and in the absence of such material, the charge of cheating as well as criminal conspiracy fails. Further, as discussed above, there is no criminality which has been established in the official actions of the accused persons.
68. With respect to the offences of forgery, the investigating agency has made fundamental error by not procuring specimen signatures/handwriting of the original allottee Mr. Sugan Chand Bajaj during investigation. The prosecution has committed an error by not proving the FSL report either by way of examination of the officer who prepared the report or by way of admission under Section 294 of the Code. In arguendo, even if the FSL report is looked into, the conclusion of the report does not attune to the benefit of the prosecution. Therefore, it has not been proved by the prosecution that false documents were made by the accused persons with an intention to damage or cause injury to the public or any person or to support any claim/title. As mentioned below, the aspect of criminal conspiracy has also not been made out.
69. The accused persons have been charged under section 120B State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 52 of 54 IPC for entering into a conspiracy to cheat the DDA by way of personation and forgery of documents and for violation of the existing rules and regulations and for extending illegal assistance to the property dealer for getting the refund cheque of Rs. 1,01,752/- encashed. The Hon'ble Supreme Court has held in Sudhir Shantilal Mehta vs. CBI [(2009) 3 SCC (Cri) 646] that criminal conspiracy is an independent offence and to establish the charge under Section 120B of IPC, it must be established that there was an agreement between the accused persons to do or cause to be done, either an illegal act or an act though not illegal but is done by illegal means. First and foremost, no material has been placed on record to indicate that there was any agreement between the accused persons. Further, the prosecution has not established beyond reasonable doubt that an illegal act was committed or a legal act was done in an illegal manner by the accused persons. There is no cogent evidence placed on record regarding meeting of minds between the parties and therefore, the charge of criminal conspiracy cannot be sustained.
70. In light of the above detailed discussion, it is concluded without any hesitation that the prosecution has not been able to establish the charges under Section(s) 120B IPC, 420/120B IPC, 419/120B IPC, 476/120B IPC, 468/120B IPC and 471 IPC against the accused persons. From the perusal of the documents and materials available on the record, it is evident that the investigation in the present case is fundamentally misconceived and is replete with lacunae which attune to the benefit of the accused persons State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 53 of 54 who have faced long drawn and protracted trial. Accordingly, the accused persons are acquitted of the offences punishable u/s 120B, 419/120B, 420/120B, 467/120B, 468/120B and 471 of the IPC.
71. In compliance to Section 437A of the Code, the accused persons are directed to furnish bail bond.
72. File be consigned to Record Room.
Dictated and announced in open Court on 17.09.2024.
Digitally signed by T PRIYADARSHINI(T. Priyadarshini) T PRIYADARSHINI Date: Additional Chief Judicial Magistrate 2024.09.23 14:55:49 +0530 South District, Saket Courts, New Delhi 17.09.2024 State vs. Mahinder Kumar and others FIR No. 425/2000, PS: Kotla Mubarakpur Page 54 of 54