Delhi District Court
State vs . Pawan Kumar Etc on 15 July, 2013
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Pawan Kumar etc
FIR NO: 532/03
P. S. Ambedkar Nagar
U/s 406/420/506 IPC
Unique ID no. 02403R0053172000
JUDGMENT
Sl. No. of the case and : 685/2 (22.11.2010)
Date of its institution : 16.11.2004
Name of the complainant : Sh. Anil Kumar Bansal
Date of Commission of offence : 9.2.2003
Name of the accused : 1. Dinesh Kumar
2. Yogesh Kumar
3. Pawan Kumar
Offence complained of : Section 420/506/120 B IPC
Plea of accused : Not Guilty
Case reserved for orders : 04.6.2013
Final Order : ACQUITTED
Date of Judgment : 15.7.2013
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Pawan Kumar etc 1/20 FIR no. 532/03
1. This is the prosecution of the aforesaid accused persons pursuant to a charge sheet filed by the Police Station Ambedkar Nagar under section 420/406/506/120 B Indian Penal Code, 1860 (for short IPC) subsequent to the investigation carried out by them in FIR no. 532/03.
2. Brief facts of the case of the prosecution are that on 9.2.2003 all the accused persons entered into a conspiracy for selling the house bearing no. B169, Jawahar Pak, New Delhi to the complainant Sh. Anil Kumar Bansal for a consideration amount of Rs. 4,00,000/ and accused Dinesh Kumar pursuant thereof executed an agreement to sell with the complainant in respect of the said house for a consideration amount of Rs. 4,00,000/ which all the accused persons knew that none of them was the owner of the said property. All the accused persons in pursuance of the said criminal conspiracy and with malafide intention induced the complainant Sh. Anil Kumar Bansal to deliver Rs.2.5 Lacs as earnest money in respect of the said agreement to sell and fraudulently caused him to enter into the said agreement. When the complainant demanded to return back his money on coming to know that that they all were not the owner of property in question, they all in furtherance of their common intention threatened the complainant of dire consequences. Investigating agency then spun into motion and carried out the investigation.
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused persons and the accused persons were indicted on charges under section 420/506/120 B IPC. They pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all, eight witnesses were examined. PW 1 Sh. Anil Kumar Bansal is the complainant who deposed that accused persons are known to him prior State Vs. Pawan Kumar etc 2/20 FIR no. 532/03 to the date of incident. Accused Dinesh used to come to his house and he also used to visit them at their General Store shops, at Khanpur Village. In the month of January, 2003, accused persons approached him to sell the property bearing no. B169, Jawahar Park, New Delhi for consideration amount of Rs.4 Lacs. Accused persons stated that they had mortgaged/hypothecated the documents in respect of the said house for an amount of Rs.50,000/. He did not disclose the owner of the house. Accordingly in the month of February, he paid Rs.2.5 lacs to the accused at their aforesaid house and the rest of the amount was to be paid on or before 27.8.2003. Accordingly, accused Dinesh Kumar after getting a receipt signed the same and handed it over to him, same is Ex.PW1/A. The said receipt was witnessed by Joginder Kumar and Dao Ji Bansal who had also put their signature thereon. He again visited them on 24.8.2003 and 25.8.2003 to make the payment of remaining payment. Accused Dinesh met him and stated that the said amount had been kept by his family members and asked him to talk to them for the same. He was shocked when accused Dinesh started talking in different manner and when he insisted the accused persons to execute the documents, they threatened him to implicate in a false case. Thereafter, he made complaint to the police Ex.PW1/B. He also made complaint to ACP and DCP Ex.PW1/C and Ex.PW1/D. He was cross examined by Ld. Counsel for the accused.
5. PW 2 Sh. Joginder Kumar deposed that in the month of February, 2003, he alongwith complainant had gone to the house of the accused persons bearing no. B169, Jawahar Park whereon a deal regarding sale of said house by the accused persons to the said Anil Kumar was finalized. Accused persons had stated to the complainant that they had mortgaged/hypothecated the documents in respect of said property for an State Vs. Pawan Kumar etc 3/20 FIR no. 532/03 amount of Rs.50,000/. Accused Dinesh had stated that he would transfer the property in the name of complainant. Anil Kumar had paid Rs.2.5 lacs to the accused persons who were present at their house and accused Dinesh had got prepared a receipt of the same vide memo Ex.PW1/A. He had also signed the said receipt at point C. He was cross examined by Ld. Counsel for the accused persons.
6. PW 3 Sh. Dao Ji Bansal deposed that in the month of February, 2003, he alongwith complainant had gone to the house of the accused persons whereon a deal regarding sale of house by the accused persons to the said Anil Kumar was finalized. The total consideration amount agreed to be paid by Anil Kumar was Rs.4 Lacs. Accused persons had stated to the complainant that they had mortgaged/hypothecated the documents in respect of said property for an amount of Rs.50,000/. Accused Dinesh had stated that he would transfer the property in the name of complainant. Anil Kumar had paid Rs.2.5 lacs to the accused persons who were present at their house and accused Dinesh had got prepared a receipt of the same vide memo Ex.PW1/A. He had also signed the said receipt at point D. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
7. PW 4 SI Vijay Kumar Singh proved the FIR as Ex.PW4/A upon a rukka. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
8. PW 5 Ct. Mahavir proved his involvement in the investigation alongwith certain documents like arrest memos of accused Dinesh Kumar and Yogesh as Ex.PW5/A and Ex.PW5/B and their personal search memo as Ex.PW5/C and Ex.PW5/D. He was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
9. PW 6 lady Ct. Raj Bala proved her involvement in the investigation alongwith certain documents like arrest memo of accused Pawan Kumar and Vimla Devi as Ex.PW6/A State Vs. Pawan Kumar etc 4/20 FIR no. 532/03 and Ex.PW6/B and their personal search memo as Ex.PW 6/D and Ex.PW6/C. She was not cross examined by Ld. Counsel for the accused persons despite according opportunity.
10. PW 7 investigating officer/Inspector Anil Kumar deposed that on 28.10.2005 a complaint pertaining to this case was marked to him. He made endorsement Ex.PW7/A and got the case registered through Ct. Rajbir. During investigation, he recorded the statement of Dauji and Joginder and obtained the NBWs from the Court against accused Dinesh, Yogesh and Pawan. On 2.12.2003, accused Dinesh and Yogesh were arrested from their house at Jawahar Park i.e B169 vide memo Ex.PW5/A and Ex.PW5/B and their personal search was conducted vide memo Ex.PW5/C and Ex.PW5/D. Disclosure statement of accused Dinesh Ex.PW5/E was also recorded. During investigation, he obtained specimen writing/signature of accused Dinesh as Ex.PW7/A1 to Ex.PW7/A3 and questioned documents alongwith specimen were sent to FSL for expert opinion. He made efforts to search accused Prem Pal @ Pawan Kumar and Vimla Devi but they could not be traced. He was cross examined by Ld. Counsel for the accused persons.
11. PW 8 Sh. Anurag Sharma, Assistant Director, FSL deposed that he is M.Sc Chemistry working in Forensic Lab with the experience of more than 20 years, reported approximately 900 cases with thousands of exhibits and appeared different Court of Law as expert witness. In this case exhibits bearing four sheets were received in their laboratory in a sealed parcel on 31.5.2004. After receiving those exhibits, he has examined the questioned signatures Mark Q 1 with the specimen signatures Mark S1 to S3 with the scientific aids lying in their division. After examination, it was observed by comparison that all the signatures in the red enclosed portion mark Q1 and S1 to State Vs. Pawan Kumar etc 5/20 FIR no. 532/03 S3 all have been written by one and the same person. The exhibits alongwith original case report were handed over to the authorized messenger on 28.6.2005 in a sealed envelope sealed with the seal of DOC, FSL. His report in this regard is Ex. PW8/A. He was cross examined by Ld. Counsel for the accused persons.
12. This is the overall prosecution's evidence in this case. Prosecution evidence was closed vide order dated 26.6.2012.
13. The statement of the accused persons under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded. They asserted that they were innocent and had been falsely implicated. Accused Dinesh Kumar stated that he did not enter into any agreement with the complainant and he did not receive any payment from the complainant. The owner of the said house was his mother and he did not ask to sell his house to the complainant. He further stated that the complainant and one Bhoop Singh hatched a conspiracy against him as they wanted him to vacate his rented shop and the owner of the said shop was Bhoop Singh. Accused Pawan and Yogesh stated that they have not received any payment or did not make any signature and did not enter into an agreement with the complainant. Further, they chose to lead defence evidence.
14. Accused Dinesh Kumar examined himself as DW 1 wherein he deposed that he was running a general/confectionery store in Khanpur on rent. The owner of the said shop was Bhoop Singh. Bhoop Singh pressurized him to vacate the said shop. He asked Bhoop Singh that whenever he would get another premises, he will vacate the said shop. Bhoop Singh and the complainant Anil Kumar were fast friends. In 2003, he was in need and requirement of some money and he approached Bhoop Singh for a loan then Bhoop Singh got him introduced to Anil Kumar who then gave me Rs.
State Vs. Pawan Kumar etc 6/20 FIR no. 532/03 25,000/ as loan. At that time, Anil Kumar got his signatures on a blank paper and one revenue ticket. He returned the abovesaid loan to Anil Kumar after three months and asked for the abovesaid signed blank papers. But he refused to hand over the same. At that point of time, some other persons were also standing and all of them asked Bhoop Singh and Anil Kumar to return his signed papers but they did not return the same. After few days, suddenly police officials of PS Ambedkar Nagar came to his house and arrested him in this case and sent to judicial custody. He got released on bail after three months of the arrest and when he reached his shop, the lock was broken and all his belongings/material were missing. He asked for his belongings to Bhoop Singh then he replied because there was outstanding on you so they have taken all their belongings and now the shop is vacated. After this, he came to know that they have torn his signed revenue stamp on other papers and paste it on another paper and got registered this false case against him and his family members. The complainant Anil Kumar has lodged this false case against them as he never entered into any agreement with him for selling his house in a sum of Rs.4 Lacs and he forged the alleged agreement and pasted his signatures from cutting it to another paper. He has not received the sum of Rs.2,50,000/ for selling his house from the complainant. At that time, the worth of his house was more than Rs.12 Lacs as it had a four storied building and the measuring area of his house is 25 sq. yds and the cost of the land at that time was 45,000/ per sq. yard. The photographs of his said house are Ex.DW1 to DW6. Ex.PW1/A was not signed by him and it was forged and fabricated by the complainant and he pasted his signed revenue stamp on the paper. The witnesses namely Joginder and Dao Ji Bansal were working with the complainant and that is why they have deposed against him. The brother of the complainant was counsellor in their State Vs. Pawan Kumar etc 7/20 FIR no. 532/03 area and that is why the police was working under his pressure and did not investigate the matter properly. He is innocent and have been falsely implicated in this case by the complainant at the instance of his landlord namely Bhoop Singh.
15. I have heard the learned Assistant Public Prosecutor and Ld. Counsel for the accused person and carefully perused the record in extenso.
16. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused persons.
17. On the other hand, it is canvassed by Ld. Counsel for the accused persons that all the accused persons have been falsely indicted by the complainant for the reason that accused Dinesh kumar was a tenant in the shop of a friend of the complainant namely Bhoop Singh who was wanting to get his shop vacated and therefore, at the behest of said Bhoop Singh, complainant has filed this false and frivolous complaint against the accused persons. It is further urged by him that except for a receipt Ex.PW1/A, there is no documentary evidence on record that the accused persons have conspired to enter into any agreement with the complainant for the sale of the property in question and have received a sum of Rs.2.5 Lacs from the complainant. Regarding receipt, it is urged that the said receipt was in fact falsely prepared by the complainant by pasting the stamp containing the signatures of accused Dinesh Kumar from a document executed by the accused Dinesh Kumar when he took loan of Rs.25,000/ from the complainant. It is further submitted that the mother of accused Dinesh Kumar was the actual owner of the property in question and therefore, there was no occasion for accused Dinesh Kumar to have offered to sell the property in question to the complainant. This is evident from the fact that the complainant has neither filed any State Vs. Pawan Kumar etc 8/20 FIR no. 532/03 recovery suit against the accused nor any suit for Specific Performance of the Contract. Ld. Counsel for the accused persons have also highlighted certain material discrepancies in the evidence of the complainant and other prosecution witnesses which I shall be discussing at the time of appreciation of evidence.
18. All the accused persons have been indicted for offence punishable u/s 420/120 B IPC and 506/34 IPC. Firstly, I would like to advert to section 420/120 B IPC. 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 security, or anything which is signed or sealed,l 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.
19. The main ingredient of offence of cheating is the fraudulent or dishonest inducement. To constitute cheating as defined u/s 415 of IPC, it has to be shown by the prosecution that there was some inducement on the part of the accused and that the said inducement was made fraudulently or dishonestly with a view to deceive the complainant. It has also to be shown by the prosecution that due to deception practiced by the accused, the person so deceived had delivered the property to the accused or had given consent that the accused shall retain that property.
20. 'Deceiving' or deceit meaningDeceiving means causing to believe what is false or misleading as to a matter of fact, or leading into error. Whenever a person fraudulently represents as an existing fact that which is not an existing fact, he commits this offence. A wilful misrepresentation of a definite fact with intent to defraud, cognizable by the senseas where a seller represents this quantity of coal to be fourteen cwt.
State Vs. Pawan Kumar etc 9/20 FIR no. 532/03 whereas it is in fact only eight cwt. but so packed as to look more; or where the seller, by maneuvering, contrives to pass off tasters of cheese as if extracted from the cheese offered for sale, whereas it is notis a cheating. Deceit means, as stated in Halsbury, a false and fraudulent representation as to a matter of act, made in order to induce a person to act thereon. Deceit is a false statement of a fact made by a person knowingly or recklessly with the intent that it shall be acted upon by another who does act upon it and thereby suffer damage. To deceive conveys an element of deceit which induces a state of mind without the element of fraud, which induce a course of action or inaction. To deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false.
21. Section 120 B IPC provides punishment for criminal conspiracy, which has been defined u/s 120 A of IPC which is as follows.
Definition of criminal conspiracy When two or more persons agree to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]
22. In order to bring the accused persons to justice, prosecution has examined complainant Anil Kumar Bansal as PW 1 who is cited as the star witness of the State Vs. Pawan Kumar etc 10/20 FIR no. 532/03 prosecution. The relevant extract of his testimony reads as under.
"Accused persons present in the Court namely Dinesh Kumar, Yogesh Kumar and Pawan Kumar and Vimla Devi (since discharged) are know to me prior to the date of incident. Accused Dinesh used to come to my house and I also used to visit them at their General Store shops, at Khanpur Village. In the month of January, 2003 accused persons approached me to sell the property bearing no. B169, Jawahar Park, New Delhi for consideration amount of Rs.4 Lacs. Accused persons stated that they had mortgaged/hypothecated the documents in respect of the said house for an amount of Rs.50,000/. He did not disclose the owner of the house. However, they stated that everything was done by accused Dinesh Kumar. Accordingly in the month of February, I paid Rs.2.5 lacs to the accused persons present in the Court today at their house bearing the said number and the rest of the amount was to be paid on or before 27.8.2003. Accordingly, accused Dinesh Kumar after getting a receipt prepared signed the same and handed it over to me. Same is Ex.PW1/A which bears my signature at point A and the signatures of accused at point B. The said receipt was witnessed by Joginder Kumar and Dao Ji Bansal who had also put their signatures thereon..............."
23. It is transpired from the abovesaid extract of evidence of PW 1 that all the accused persons approached him in the month of January, 2003 and offered him to sell the property bearing no. B169, Jawahar Park, New Delhi (for short referred to as "property") for a consideration amount of Rs.4 Lacs. He was also told by the accused persons that the documents of the said property had been mortgaged for an amount of Rs.50,000/. Pursuant to this, in the month of February, he paid Rs.2.5 Lacs to the accused and the rest of the amount shall be paid on or before 27.8.2003 and receipt Ex.PW1/A was executed by accused Dinesh Kumar which was witnessed by Joginder State Vs. Pawan Kumar etc 11/20 FIR no. 532/03 Kumar and Dao Ji Bansal who had also put their signatures upon it. One interesting fact which he has deposed in his examination in chief is that accused Dinesh Kumar did not disclose him the owner of the property.
24. Further deposition of PW 1 is to the effect that thereafter, on 24.8.2003 and 25.8.2003, he went to make the remaining payment but accused Dinesh Kumar started avoiding him and ultimately refused to execute the documents regarding the sale of the property and also threatened him with dire consequences. In his cross examination, it has come on record that the property in question was approximately 50 sq. yds and was constructed upto three stories. He conceded that he had only seen ground floor of the said property and not other stories and in the ground floor also, he had seen the dining room and not other rooms. He also conceded that one local person told him that the property is for sale but he could not tell the name of the said local person. When he was asked about the source of the abovesaid amount of Rs.2.5 Lacs, he stated that Rs.2030,000/ belonged to him and the remaining amount of Rs.2,20,000/, he borrowed from one Nigam Chaudhary and one Manoj Kumar who resided in the same village but he could not tell their address.
25. In his further cross examination, he has also stated that at the relevant time, the rate of the property was Rs.89,000/ per sq. yds and he was purchasing the property as it appeared to him very cheap. He also conceded that he did not ask the accused persons to whom the property was mortgaged nor ask them to see the ownership papers of the said property. Regarding the receipt Ex.PW1/A, he admitted that the receipt does not bear writing of any of the accused. He volunteered that somebody was sitting there who wrote it. He denied the suggestion that the accused persons have not approached him for the sale of the property in question or that the accused State Vs. Pawan Kumar etc 12/20 FIR no. 532/03 persons have not been paid a sum of Rs. 2.5 Lacs by him or that the accused persons have no liability to pay him the abovesaid amount.
26. To support the testimony of PW 1, prosecution has also examined Sh. Joginder Kumar as PW 2 and Sh. Dao Ji Bansal as PW 3. The relevant extract of their testimonies is as follows.
Extract of testimony of PW 2 Sh. Joginder Kumar as under:
"In the month of February, 2003, I alongwith Anil Kumar Bansal had gone to the house of accused persons bearing no. B169, Jawahar Park whereon a deal regarding sale of said house by the accused persons to the said Anil Kumar was finalized. Accused persons had stated to said Anil Kumar that they had mortgaged/hypothecated the documents in respect of said property for an amount of Rs.50,000/. Accused Dinesh stated that he would transfer the property in the name of complainant. Anil Kumar had paid Rs.2.5 lacs to the accused persons who were present at their house and accused Dinesh had got prepared a receipt of the same vide memo Ex.PW1/A and signed the same at point B. I had also signed the said receipt at point C. I identify the accused persons present in the Court today who were known to me for a long time."
Extract of testimony of PW 3 Sh. Dao Ji Bansal as under:
"In the month of February, 2003, I was called by accused Dinesh at his house and then I reached there and saw the accused persons present in the Court are present thereon. A deal regarding sale of house by the accused persons to the Anil Kumar was finalized. I do not remember the house number which is situated in Jawahar Park and was agreed to be paid by Anil Kumar was Rs.4,00,000/. Accused mortgaged/hypothecated the documents in respect of said property for an amount of Rs.50,000/. Accused Dinesh stated that he would transfer the property in the name of State Vs. Pawan Kumar etc 13/20 FIR no. 532/03 complainant. Anil Kumar had paid Rs.2.5 lacs to the accused persons who were present at their house and accused Dinesh had got prepared a receipt of the same vide memo Ex.PW1/A and signed the same at point D. I had also signed the said receipt at point C. I identify the accused persons present in the Court today who were know to me for a long time".
27. PW 2 Joginder Kumar has been elaborately cross examined by Ld. Counsel for the accused persons but the testimony of PW 3 Dao Ji Bansal has remained unchallenged as the accused persons did not avail the opportunity to cross examine him.
28. The defence of the main accused Dinesh Kumar is that he alongwith the other accused persons have been falsely implicated by the complainant as there was no such offer on their part to sell the property in question to the complainant, neither have they taken any sum of Rs. 2.5 Lacs from the complainant in respect of the said property. Regarding the receipt Ex.PW1/A, it has been his stand that the said receipt has been falsely prepared by the complainant by pasting the stamp containing his signatures on the said receipt by removing it from one document executed by him at the time of availing loan of Rs.25,000/ from the complainant. It is pertinent to note at this stage that this defence of the accused Dinesh Kumar has remained consistent through out the trial.
29. Post analyzing and scrutinizing the case of the prosecution in the light of the abovementioned testimonies of both the parties, I am of the considered opinion that the version of the complainant that the accused persons have approached him to sell the property in question and cheated him by dishonestly receiving a sum of Rs.2.5 Lacs does not seem to be credible and credit worthy for the following reasons.
30. Generally, at the time of purchasing any property, the prospective buyer inquires about State Vs. Pawan Kumar etc 14/20 FIR no. 532/03 the details of the property either from the seller or from other sources so as to ensure himself as to the authenticity and veracity of the ownership of the property. But in the instant case, from the testimony of PW 1 Anil Kumar Bansal, it appears that either he had acted as a naive or he had so much of money that he did not think twice to squander it in the property in question without going into the details of the same. In his examination in chief, he has conceded that he was not disclosed the owner of the property. This statement of his defies logic in as much as it was his duty to first and foremost inquire as to who was the owner of the said property. Thereafter, in his cross examination also, he has conceded that he only saw the dining room on the ground floor of the said property despite the fact that the said property was having three stories. It again defies logic that he did not care to have a view of the entire building before buying the same. He has also stated that one local person told him that the property was for sale. This statement of his further cast doubt on his claim that the accused persons approached him with an offer to sell the property in question. When it has been his stand in his examination in chief that the accused persons have come to him with an offer to sell the property in question then what made him give this statement that he came to know about the sale of the property from one local person.
31. Furthermore, regarding the source of the abovesaid payment of Rs.2.5 Lacs, the statement of PW 1 that he borrowed a sum of Rs.2,20,000/ from one Nigam Chaudhary and one Manoj Kumar is not digestible and believable for the reason that none of these persons have been examined by the prosecution. He is also failed to divulge the complete details of those two persons from whom he had borrowed the abovesaid amount. During his further cross examination, he has also admitted that he did not inquire about the person to whom the ownership documents of the property State Vs. Pawan Kumar etc 15/20 FIR no. 532/03 were mortgaged. This admission of his further takes the wind out of the sail of the prosecution for the reason that if admittedly he was informed by the accused persons that the property has been mortgaged for an amount of Rs.50,000/ then the natural course which ought to have been adopted by him was to ask about the details of the person to whom the property has been mortgaged. PW 1 has also not denied the factum of extending loan to the accused Dinesh Kumar but according to him it was a friendly loan and no document was executed at that time. He has also admitted that the receipt Ex.PW1/A does not bear the handwriting of any of the accused and somebody else had written it. That somebody else has also neither been cited as a witness nor examined by the prosecution. That somebody else name has also not been disclosed by PW 1. All these circumstances taken cumulatively disclose the unnatural and strange conduct of PW 1 Anil Kumar Bansal while dealing with the accused persons in respect of the property in question and in view of these circumstances, the entire testimony of PW 1 Anil Kumar Bansal and the case of the prosecution seem to be incredulous and untrustworthy.
32. Complainant/PW 1 Anil Kumar also got examined PW 2 Sh. Joginder Kumar and PW 3 Sh. Dao Ji Bansal to supplement his case. But since the testimony of PW 1 itself does not seem to be credible and reliable, therefore, the testimonies of the said two witnesses also cannot be said to lend any credence to the case of the prosecution. Although, PW 2 Joginder Kumar has testified in support of the version of PW 1 but from his evidence, it is not clear as to out of the three persons whose address he alongwith complainant went to for the purpose of dealing in respect of the property. He has simply deposed that he alongwith Anil Kumar Bansal went to the house of accused persons bearing no. B169, Jawahar Park. He has also stated that all the accused State Vs. Pawan Kumar etc 16/20 FIR no. 532/03 persons had stated to PW 1 Anil Kumar that they had mortgaged/hypothecated the documents in respect of the property for an amount of Rs.50,000/ and Anil Kumar had paid Rs.2.5 Lacs to the accused persons pursuant to which accused Dinesh had got prepared a receipt of the same which is Ex.PW1/A. The said receipt bears his signatures at point C. However, in his cross examination, he has conceded that Anil Bansal did not ask the accused persons to show the original documents of the property. He has expressed ignorance whether the accused persons stated that the original papers of the house were mortgaged with some other person for a consideration of Rs.50,000/. As discussed hereinabove, in his examination in chief, he has categorically deposed that all the accused persons had informed Anil Kumar about the mortgage of the property documents but in his cross examination, he has feigned ignorance with regard to the said fact. Furthermore, he has also admitted that the bayana receipt Ex.PW1/A was written by some other person from the accused side but he did not know his name. He also did not know from where the papers of the bayana receipt were procured. It has come in his evidence that PW 1 Anil Kumar Bansal was running a PCO in his neighbourhood and he was his friend. All these facts and circumstances go on to show that the testimony of PW 2 Joginder Kumar is not reliable and worthy of credence and like the testimony of PW 1, his testimony also suffers from material discrepancies. Since he has admitted to be friends with PW 1 Anil Bansal, therefore, he seems to be driven to depose in the present case at the instance of PW1.
33. PW 3 Sh. Dao Ji Bansal had also entered into the witness box in support of the case of PW 1 Sh. Anil Kumar Bansal and his testimony has remained undemolished by or on behalf of accused persons despite according opportunity. Even though, his testimony has remained unrebutted and uncontroverted but given the abovesaid infirmities, State Vs. Pawan Kumar etc 17/20 FIR no. 532/03 reliance cannot be placed upon the testimony of PW 3 also as some serious doubts have arisen in the case of the prosecution. It is well settled proposition of law that prosecution has to stand on its own legs and cannot derive any advantage from the weakness of the case of the accused. Keeping this principle in mind, it is said that even though witness/PW 3 has not been cross examined by the accused persons still this would not be considered as giving any advantage to the case of the prosecution.
34. Prosecution has also got examined PW 8 Sh. Anurag Sharma, Assistant Director, FSL, Rohini who has got exhibited report Ex.PW8/A and gave his opinion that the stamp on the receipt Ex.PW1/A bears the signature of accused Dinesh Kumar only. At this stage, it is significant to note that throughout the trial accused Dinesh has not disavowed his signatures on the stamp on the receipt Ex.PW1/A but his case is that the said stamp was removed from some other document and was pasted on this bayana receipt so as to give it a colour of the consideration amount of Rs.2.5 Lacs in respect of the property in question. After taking into consideration the entire gamut of the facts and circumstances and the evidence on record, I hold and observe that the said bayana receipt Ex.PW1/A which has been presented as the foundation of the case of the prosecution can not to be considered as a document executed by accused Dinesh in the manner in which it has been presented. It has already come on record that the contents of the said document have been written by some unknown person from the side of the accused and also that complainant Anil Kumar Bansal had given loan of Rs.25,000/ to the accused Dinesh Kumar, thus the stand of the accused that the stamp was removed from some other document and was placed on this bayana receipt seems to be probable and presumptive.
35. The story related by the prosecution does not seem to be believable also for the State Vs. Pawan Kumar etc 18/20 FIR no. 532/03 reason that apart from this disputed bayana receipt, no other document are said to be executed between the parties in respect of the sale of the property in question. Ordinarily, before the sale of any property, some preliminary documents in the form of agreement to sell are executed between the parties in which all the terms and conditions are agreed between them. Execution of the abovesaid agreement to sell is resorted to by the parties in order to safeguard their respective interests by incorporating certain terms and conditions pertaining to the prospective sale of any property. But in the instant case, apart from the document Ex.PW1/A i.e bayana receipt, no other document in the form of agreement to sell is shown to have been executed between the parties and the said bayana receipt Ex.PW1/A apparently has also not been properly prepared and executed as discussed in the preceding paragraph which further mars the substratum of the case of the prosecution. The defence of the accused has remained consistent and unwaivering throughout the trial. In the light of the discussion hereinabove, all the accused persons cannot be held liable for the offence of cheating.
36. Now adverting to the charge of criminal conspiracy u/s 120 B IPC, there is not an iota of evidence on record that all the accused persons have conspired together to cheat the complainant Anil Kumar Bansal in the manner as has been alleged by the prosecution. Testimonies of the prosecution witnesses have failed to bring about any element of criminal conspiracy between all the accused persons to deceive the complainant in the garb of selling the property in question. Since, it has been noted above that the entire story of the prosecution suffers from prevarication and equivocation, therefore, the charge against the accused persons u/s 120 B IPC also goes out.
State Vs. Pawan Kumar etc 19/20 FIR no. 532/03
37. Regarding the charge u/s 506/34 IPC i.e criminal intimidation, it is said that the said charge is an offshoot of the story related by the prosecution pertaining to the alleged cheating on the part of the accused persons, which story has remained unsubstantiated and not proved, therefore, the charge u/s 506/34 IPC also does not stand against the accused persons. When the substantive part of the version of the complainant PW 1 Anil Kumar Bansal has been totally discarded and rejected by this Court in view of the discussion in the preceding paragraph, in such a scenario, there is no occasion for this Court to believe the story of the complainant/PW 1 regarding the criminal intimidation on the part of the accused persons.
38. Testimonies of rest of the witnesses are formal in nature which are not sufficient to bring home the conviction of the accused persons.
39. Having regard to the abovesaid narrative, it is abundantly clear that prosecution has dropped the ball in so far as proving its case against the accused persons. There are material and significant incongruities in the testimony of the main prosecution witnesses, particularly complainant/PW1, which cannot be overlooked. Consequently, all the accused persons are acquitted of all charges against them. They are set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 15.7.2013 Metropolitan Magistrate04,
South, Saket Court, New Delhi
State Vs. Pawan Kumar etc 20/20 FIR no. 532/03