Delhi District Court
State vs Ramesh Chand & Ors on 8 December, 2017
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Ramesh Chand & Ors.
FIR No. 99/1997
P.S Hauz Khas (Crime Branch)
JUDGMENT
1. Sr. No. of case 2031582/2016
2. Date of institution 14.08.2000
3. Name of the complainant Sh. M.A. Khan, Registrar, Delhi
High Court
4. Date of commission of offence In the month of April, 1993
5. Name of accused 1. Ramesh Chand
S/o Late Mava Chand
R/o Village Atail, Tehsil Gaunaur,
District Sonipat, Haryana.
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 1 of 75
2. Subhash Chand
S/o Sh. Sain Kumar
R/o VPO Pirthala, Disrict
Fatehbad, Haryana.
3. Sain Kumar
S/o Sh. Kanshi Ram
R/o VPO Pirthala, Disrict
Fatehbad, Haryana.
4. Dinesh Sambharwal
S/o Sh. Prem Chand
R/o House No. 5A, Pocket B4,
Ashok Vihar-II, Delhi.
5. Madan Lal Sharma
S/o Sh. A.R. Sharma
R/o House No. 103, Gali No. 1,
New Basti, Narela, Delhi.
6. Raj Singh
S/o Late Nihal Singh
House No. A4-5, Mayfair Garden,
Hauz Khas, New Delhi.
7. Daya Nand Singh
S/o Late Nihal Singh
R/o House No. F-6B, Hauz Khas
Enclave, New Delhi.
8. Kamlesh Sambharwal
W/o Sh. Prem Chand
R/o House No. 21 A, Pocket-A,
Phase-III, Ashok Vihar, Delhi.
6. Offence complained of U/s 173/193/210/
419/419/420/467/468/471/448/120-
B IPC
7. Plea of accused Pleaded not guilty
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 2 of 75
8. Date of reserving the judgment 27.11.2017
9. Final order 1. Ramesh Chand (convicted)
2. Subhash Chand (convicted)
3. Sain Kumar (convicted)
4. Dinesh Sambharwal (acquitted)
5. Madan Lal Sharma (acquitted)
6. Raj Singh (acquitted)
7. Daya Nand Singh (acquitted)
8. Kamlesh Sambharwal
(acquitted)
10 Date of such judgment 08.12.2017
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. Narration of story of prosecution is that accused Ramesh Chand was a regular visitor of his uncle's house in Hauz Khas, New Delhi. He planned to grab plot No. C-7, Hauz Khas, New Delhi. He came to know that owner Girdhari Lal Chawla was living abroad. He approached accused Dinesh Sambharwal who assured him that he can get a decree passed from the Court on the basis of adverse possession in the name of any of his known person. He told him that the decree would be passed by his mother Smt. Kamlesh Sabharwal who is Commercial Civil Judge. Accused Ramesh Chand met accused Subhash Chand, who joined the conspiracy. Subhash Chand brought one S.K. Goel who impersonated Girdhari Lal Chawla and FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 3 of 75 landlord of Subhash Chand, Madan Lal Dua became plaintiff in the suit. Dinesh then requested one advocate S.D. Vashisht to file the suit. The petition was drafted by Dinesh which was signed by Madan Lal Dua and the same were filed through S.D. Vashisht. Thereafter, Madan Lal Dua refused to appear in the Court. Summons were issued from the court of accused Kamlesh Sambharwal which were marked to accused Madan Lal Sharma. Madan Lal Sharma gave a false report on the summons. S.K. Goel impersonated as Girdhari Lal Chawla and gave a statement that the matter has been settled with Madan Lal Dua and accordingly, a decree was passed. The decree was registered with the Sub-Registrar where accused Sain Kumar impersonated Madan Lal Dua who was identified by accused Ramesh Chand. The decree was then used for entering into agreement to sell with Daya Nand for Rs. 61 lacs. A bank account in the name of Madan Lal Dua was got opened by accused Sain Kumar who was introduced by accused Subhash Chand and the cheque in the sum of Rs. 1 lac which was received from Daya Nand Singh was credited in that account, cash of Rs. 90,000/- was later withdrawn by accused Sain Kumar. A public notice was issued by Daya Nand Singh. Pursuant to which, it was informed to the lawyer of Daya Nand Singh that the property in question belongs to one Smt. Sobha Samat hence, the sale deed which was prepared between Sain Kumar and Daya Nand Singh was called off. Despite the sale deed being FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 4 of 75 called off, amount of Rs. 1 lac was credited in the account of accused Sain Kumar which was cleared from the account of accused Raj Singh, who was the brother of Daya Nand Singh.
2. Provisions of Section 207 Cr.P.C were complied with. On appearance of accused persons before Court and prima facie case having been made out, charge for the offence of under section 120 B IPC read with section 193/109 PC read with section 205 IPC was framed against accused persons namely Ramesh Chand, Subhash Chand, Dinesh Sambharwal and Kamlesh Sambharwal. Accused Madan Lal Sharma was charged with offence under section 193 IPC. Additional charge under section 219 Cr.PC was framed against accused Kamlesh Sambharwal. Accused Sain Kumar was charged with the offence under section 419 IPC. Accused Ramesh Chand and Subhash were charged with the offence under section 109 IPC read with section 419 IPC. Accused Ramesh Chand, Subhash Chand and Sain Kumar were charged with the offence under section 448 IPC read with section 120 B IPC. Accused Daya Nand Singh, Raj Singh, Subhash Chand, Ramesh Chand and Sain Kumar were together charged with offence under section 120 B IPC read with section 193 IPC. Accused Daya Nand Singh and accused Sain Kumar were also charged with the offence under section 467 IPC and 120 B IPC. Accused Sain Kumar and Subhash Chand were charged with the FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 5 of 75 offence under section 468 IPC and 120 B IPC. Accused Daya Nand and Sain Kumar were charged with offfence under section 467 IPC read with section 120 B IPC. Raj Singh and Daya Nand Singh were charged with the offence under section 448 IPC read with section 120 B IPC.
3. In order to prove its case, the prosecution examined 44 witnesses in all.
4. Sh. Satish Kumar Sehgal, Civil Nazir was examined as PW1. He deposed that as per the record, summons were issued to defendant Girdhari Lal for hearing on 24.04.1993 in the case titled as Madan Lal Vs. Girdhari Lal by the Court of Smt. Kamlesh Sambharwal. The summons were marked to process server Madan Lal-II. Copy of record is marked as Mark PW1/X1.
5. Sh. Nagesh Kumar Vadhera, Finger Print Expert was examined as PW2. He deposed that in the year 1997, he received five documents for giving an opinion. His opinion is Ex.PW2/E. He identified signatures of one V.K. Ramakrishnan, Director of Finger Bureau at point B.
6. Sh. V.K. Gupta was examined as PW3. He proved the fact of death of Satish Kumar Goel and exhibited the death certificate as Ex.PW3/A. FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 6 of 75
7. Sh. Harshvardhan, Assistant Director (Documents), FSL was examined as PW4. He was examined to prove his report Ex.PW4/A.
8. Ms. Radha Chaudhary was examined as PW5. She deposed that in the year 1993, she was posted as Assistant Ahlmad in the Court of Smt. Kamlesh Sambharwal. She deposed that a case titled as Madan Lal Dua Vs. Girdhari Lal Chawla was received in the Court on 22.04.1993 and was decided on 24.04.1993. The case was filed through advocate Sh. S.D. Vashisht. On 22.04.1993, dasti summons were issued. On 24.04.1993, statement of defendant Girdhari Lal Chawla was recorded. On 24.04.1993, the case was finally decided by Smt. Kamlesh Sambharwal. The order is Ex.PW5/A.
9. Sh. Sanjay Kumar Tyagi, Delivery Clerk, Copying Agency Tis Hazari Court was examined as PW6. He deposed that on 22.05.1998, under the directions of Incharge, Copying Agency, he handed over original certified application form of Suit No. 245/93 which was decided by Smt. Kamlesh Sambharwal. The said form was seized by the police vide seizure memo Ex.PW6/A.
10. Sh. Vinod Kumar was examined as PW7. He deposed that he is unaware about the facts of the case. He even denied the suggestions put to him by Ld. APP.
11. SI Paramjeet Singh was examined as PW8. He deposed that on FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 7 of 75 18.04.1998, he alongwith SI Sudhir Singh went to PS Sadar, Sonipat for execution of search warrants. Thereafter, they went to Chowki, Sector-15, Sonipat where HC Sher Singh joined them and all of them went to House No. 1298, Sector-15. Accused Dinesh met them in the house. SI Sudhir Singh carried out the search of house in presence of HC Sher Singh. SI Sudhir Singh recovered paper slip from the store house. Address of accused Ramesh was written as G- 9, Ground Floor, Hauz Khas on that slip. Telephone number of the Ramesh was also written on the slip. The same was seized by SI Sudhir Singh vide Ex.PW8/A.
12. Inspector Sudhir Singh was examined as PW9. He deposed on the same lines as PW8.
13. W/ASI Neena Devi was examined as PW10. She deposed that on 08.02.1997, she put endorsement on the rukka vide Ex.PW10/A and got FIR registered vide Ex.PW10/B.
14. Sh. Arun Khanna was examined as PW11. He deposed that in the year 1993, he was working as Salesman in the shop of Kishan Chand Dass. One Sh. Girdhari Lal Chawla was maternal uncle of Sh. Kishan Chand Dass. On 23.4.1993, his duty hours were from 11.00 am to 8.00 pm. He remained in the shop till its closure. No summons were served in his presence in the abovesaid shop upon Girdhari Lal Chawla.
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 8 of 75
15. Sh. Suraj Bhan was examined as PW12. He deposed that in the year 1990, he was residing at Village Wazirabad, Haryana. He does not know any Jagdish or that he sold any piece of land to Jagdish.
16. Inspector Rajeev Midha was examined as PW13. He deposed that on 13.04.1997, he assisted ACP M.K. Sharma in the investigation of the present case. He alongwith Inspector Ram Kumar signed disclosure statement made by accused Subhash Chand and Ramesh. He identified the said two accused persons. Disclosure statements are Ex.PW13/A and Ex.PW13/B.
17. Sh. Satish Kumar Nangia was examined as PW14. He deposed that he does not know anything about the present case.
18. Sh. Mahinder Singh was examined as PW15. He also deposed that he does not remember anything about the case.
19. Sh. Bikender was examined as PW16. He deposed that he does not know anything about the case.
20. Sh. Gagan Dev Singh was examined as PW17. He deposed that he does not know anything about the case.
21. Sh. Pradeep Kumar Gupta was examined as PW18. He deposed that he was working with Oriental Bank of Commerce since January, 1976. He exhibited letter as Ex.PW18/A. He also produced account opening form of Daya Nand and Capital Finance, Proprietor Raj FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 9 of 75 Singh and Sons (HUF) which are Ex.PW18/B and Ex.PW18/C.
22. Sh. D.K. Bhaskar was examined as PW19. He deposed that earlier he was working with Oriental Bank of Commerce. There was an account of Daya Nand in the bank.
23. ACP S.R. Yadav was examined as PW20. He deposed on 21.04.1998 he assisted Sh. V.K. Sobti, ACP, the then IO in the investigation of this case. He alongwith Sh. V.K. Sobti visited the residence of Sunil Dutt Vashisht who was brought to EOW Office for interrogation. Sh. V.K. Sobti interrogated him in his presence and also arrested him. His disclosure statement was also recorded in his presence.
24. Sh. Ram Kumar Malhotra was examined as PW21. He deposed that he does not know anything about the case.
25. Sh. Jaswant Singh Chhabra was examined as PW22. He deposed that he does not remember anything about the case.
26. Sh. R.K Prabhakar was examined as PW23. He deposed that he was posted as Deputy Secretary in the Law and Justice Department. He conveyed the sanction in this case after going through the file. Lieutenant Governor of NCT of Delhi had given his approval for launching of prosecution against accused persons.
27. Sh. Dinesh Kumar Garg was examined as PW24. He was a FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 10 of 75 practising advocate in the year 1997. He sent a letter dated 15.08.1994 to Sh. P.K. Aggarwal, advocate regarding property C-7, Hauz Khas Enclave, New Delhi informing him that his client Sobha Samat is the owner of the said property. The letter was sent by him on the instructions of his client pursuant to a public notice dated 22.07.1994 got published by Sh. P.K. Aggarwal, advocate. He sent another letter dated 11.11.1994 to Sh. P.K. Aggarwal, advocate under the instructions of his client pursuant to public notice dated 03.11.1994. Copy of letter dated 15.08.1994 is Ex.PW24/A and letter dated 11.11.1994 is Ex.PW24/B.
28. Sh. Datta Ram was examined as PW25. He deposed that in the year 1998, he assisted Additional DCP Mr. Alok Kumar in the investigation. On 22.05.1998, on instructions of Mr. Alok Kumar, he moved an application in the Court of Mr. R.L. Chug for obtaining certified copy of application and decree in suit No. 245/93 dated 24.04.1993. After collecting the certified copies, seizure memo Ex.PW6/A was prepared. Copy of application moved by him is Ex.PW25/A. Original application is Ex.PW25/B. He recorded the statement of Sh. Sanjay Kumar Tyagi and HC Surender.
On the intervening night of 14-15.07.1998, he was a member of team. He reached at L-4, Green Park Extension which is office of Mr. Raj Singh alongwith Inspector Rakesh Dikshit and inspector FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 11 of 75 Rajender Bhatia. Daya Nand and Raj Singh were found present. They were taken to Crime branch for interrogation. Both the accused persons were arrested and their personal search was conducted vide memo Ex.PW25/C and Ex.PW25/D. Disclosure statements of both the accused persons were recorded vide memo Ex.PW25/E and Ex.PW25/F. On 16.09.1998, he went to Sonipat, House No. 9, Sector-15 regarding search of Dinesh Sambharwal on the instructions of ACP Ravi Shankar. Dinesh Sambharwal was brought to the Interstate Cell, Chanakya Puri and interrogated. Thereafter, he was arrested and his personal search was conducted vide memo Ex.PW25/G. On 17.09.1998, the specimen signature of Dinesh Sambharwal was taken on 13 sheets and same are ExPW25/H1 to Ex.PW25/H13.
On 15.12.1998, accused Madan Lal Sharma surrendered in the Court of Sh. K.S. Mohi, M.M, Patiala House Court. He was arrested and his specimen handwriting was taken on 13 sheets in presence of SI Ashok Sharma. Same are Ex.PW25/I-1 to Ex.PW25/I-11.
On 24.09.1998, one Sh. K.C. Dass handed over four phtotostat papers in respect of workers. He seized the same vide memo Ex.PW25/J. He recorded statement of Sh. K.C. Dass under section 161 Cr.PC. He identified the accused persons namely Daya Nand, Raj Singh, Dinesh Sambharwal and Madan Lal Sharma. FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 12 of 75
29. Justice M.A. Khan was examined as PW26. He deposed that on 04.02.1997, in pursuance of the order of Hon'ble High Court dated 16.01.1997, he prepared complaint addressed to DCP (Crime) asking him to investigate the case in relation to suit no. 245/93. Complaint filed by him is Ex.PW26/A
30. Ct. Kuldeep Singh was examined as PW27. He deposed that on 08.02.1997 rukka was handed over to him. On the basis of which, he got the FIR registered.
31. HC Surender Kumar was examined as PW28. He deposed that on 22.05.1998, he joined investigation with Inspector Data Ram in Tis Hazari Court.
32. Sh. Ram Kumar, ACP was examined as PW29. He deposed that he was associated with the investigation of the present case from 13.04.1997 to 15.04.1997 alongwith ACP M.K. Sharma. Accused Subhash Chand and Ramesh Chand were on police custody remand with ACP M.K. Sharma. Disclosure statement of both the accused persons were recorded in his presence. Accused Subhash pointed out towards Quarter no. 1632, Type-IV, Gulabi Bagh in which Dinesh Sambharwal was residing. Pointing out memo Ex.PW29/A was prepared.
On 14.04.1997, specimen signatures of accused Ramesh and FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 13 of 75 Subhash were obtained in his presence. Accused Subhash Chand pointed out towards House No. 101, Ram Nagar, Sonipat. Pointing out memo Ex.PW29/B was prepared.
On 15.04.1997, pointing out memo was prepared at the instance of accused Subhash Chand at 24, Ansari Market, Daryaganj. Same is Ex.PW29/C. Specimen signatures of accused Sain Kumar were obtained vide Ex.PW29/D. Specimen signatures of accused Madan Lal were obtained vide Ex.PW29/E. On 28.08.1997, he deposited the specimen documents to FSL. He identified accused persons namely Subhash, Ramesh Chand and Sain Kumar in the Court.
33. Sh. Vijay Kumar Dham, ACP was examined as PW30. He deposed that in August, 1995, he was directed to enquire into the miscellaneous application of Sobha Samat Vs. M.L. Dua. During enquiry, he seized documents from various sources. Photocopies of documents were handed over to Sh. M.K. Sharma on 10.02.1997. These documents comprised of banking instruments of PNB and OBC of M.L. Dua and Daya Nand. Photograph of M.L. Dua was handed over to him by Sh. K.C. Dass, Attorney of Sobha Samat. Copy of documents of assistant zonal fird, documents of Commercial Sub-Judge, copies of documents handed over by Daya Nand, copy of affidavit Mark PW30/A filed by him in the Hon'ble FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 14 of 75 High Court.
34. Sh. Manoj Jain, Special Judge (PC Act) (CBI) was examined as PW31. He deposed that he recorded the statement of accused Sunil Dutt under section 161 Cr.PC. Application of IO is Ex.PW31/A. His composite proceedings is Ex.PW31/B. Copy of proceedings given to IO on his application is Ex.PW31/C.
35. Sh. Balwan Singh, Retired Junior Engineer, CPWD was examined as PW32. He deposed that on 03.03.1998 he informed the IO that Smt. Kamlesh Sambharwal took possession of Quarter No. 2071, Type-IV, Gulabi Bagh on 23.11.1991. On 03.03.1998, she was still in occupation of flat. The relevant record is Ex.PW32/B.
36. Sh. Kishan Chand Dass was examined as PW33. He deposed that property bearing no. C-7, Hauz Khas belongs to his sister Smt. Sobha Samat. In the year 1994, he came to know that somebody had sold the property. He was informed about the said fact by his friend Sh. Kailash Jain who showed him a public notice to the effect that the property in question was proposed to be sold. He got a complaint filed to the Hon'ble Chief Justice, High Court of Delhi and also filed a writ petition.
In cross examination by Ld. APP, he admitted his statement recorded under section 161 Cr.PC Mark PW33/A, Mark PW33/C and Mark PW33/D. He admitted that he handed over certain FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 15 of 75 documents i.e photocopy of GPA to the Investigation Officer. The seizure memo is Ex.PW33/B. Original summons Ex.PW33/E were shown to him. He denied signatures at point A of Sh. Girdhari Lal Chawla. He further stated that on 23.04.1993, his uncles Girdhari Lal Chawla was not present at the shop. He went to Bombay and from there to UK. On the said day, no one from the Court came for the service of summons as he was present at his shop from 10.00 am to 7.00 pm. None of the employees had received the summons. He identified signatures of maternal uncle on document Ex.PW33/B. He identified his signature on seizure memo Ex.PW25/J.
37. Sh. Virender Singh Rana was examined as PW34. He deposed that he was posted in the Court of Commercial Civil Judge, Tis Hazari Court, Delhi. On 22.04.1993, a case was filed by the plaintiff which was marked to Smt. Kamlesh Sambharwal, the then Commercial Civil Judge by Senior Civil Judge. Dasti notice for 24.04.1993 was issued on plaint Ex.PW34/A. On the direction of Presiding Officer, the ordersheet was prepared by Sh. Hoshiyar Singh, Reader which was signed by the Presiding Officer. Process fee was paid by Advocate S.D. Vashisht on 23.04.993. On the same day, summons were prepared in the name of defendant Sh. Girdhari Lal and given to Advocate Sh. S.D. Vashisht for 24.04.1993. After receiving back the summons, the Reader mentioned the word FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 16 of 75 'defendant served' on the ordersheet. As per record, on 24.04.1993, defendant appeared before the Presiding Office and his statement was recorded. The defendant was identified by the advocate of plaintiff. Thereafter, Presiding Officer passed the final order. Decree was prepared by the Reader which is Mark PW34/B.
38. ACP V.K. Sobti was examined as PW35. He deposed that in the year 1997 he was entrusted the investigation of the present case. During investigation, he examined the accused persons, suspected persons and witnesses and got search of suspected places/suspected documents and seized documents. Opinion of Finger Pint Bureau was obtained. Thereafter, investigation was taken over by ACP M.K. Sharma.
On 24.06.1997 Sh. Navtes Singh Khurana, Manager, Punjab and Sind Bank produced one account opening form and specimen signature card of account no. 2228 in the name of Satish Kumar Goel. Same was seized vide memo Ex.PW35/A. Specimen signature card is Ex.PW35/A1, account opening form is Ex.PW35/A-2. He also obtained specimen handwriting and specimen signatures of Sh. S.D. Vashisht which is Ex.PW35/B. On 01.08.1998, six photographs of documents were taken by the crime team which was lying in the possession of Hon'ble High Court of Delhi in petition no. 4649/1994 and CMS. 8294-95/94 & 6129/95. FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 17 of 75 The questioned documents and specimen were sent to Finger Print Bureau for comparison vide letter which is Ex.PW35/C. On 21.04.1998, accused S.D. Vashist was arrested and his personal search was conducted vide memo Ex.PW35/D. Statement of accused S. D. Vashist was recorded vide memo Ex.PW35/E. On 05.08.1997, a letter was sent to Incharge, Copying Agency, Tis Hazari Court for obtaining particulars of one Pradeep Kumar, who applied and received the certified copy of decree in Suit No. 245/93. Letter is Ex.PW35/F. On 10.03.1998, another letter Ex.PW35/D was sent for obtaining details of ration card of Smt. Kamlesh Sambharwal. Reply dated 10.03.1998 of Food and Supply is Ex.PW35/H. As per the report, the name of co-accused Dinesh Kumar was entered into the ration card of Smt. Kamlesh Sambharwal which was later on deleted on 21.03.1997. On 18.02.1998, a letter was sent to Chief Election Officer to obtain the names of persons who were living in Flat No. 2071, Type-IV, Gulabi Bagh, Delhi. The letter is Ex.PW35/I. Reply dated 24.02.1998 is Ex.PW35/J. As per the report, election I Card of accused Kamlesh Sambharwal and Dinesh Kumar were prepared on same address i.e. 2071, Gulabi Bagh, New Delhi.
On 08.10.1997, an office was sent to President, Delhi Bar Association, Tis Hazari Courts, Delhi to furnish the residential FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 18 of 75 address and registration number of accused Dinesh Kumar and Kamlesh Sambharwal. The letter is Ex.PW35/K. The reply dated 03.11.1997 is Ex.PW35/L. As per reply, the residential address of both the accused was same i.e 2071, Gulabi Biagh, Delhi.
On 17.04.1998, search warrants of flat no. 23/24, Ansari Market, Daryaganj, Delhi was obtained from the Court of Sh. Manoj Jain, Ld. MM which is Ex.PW35/M-1. Certain articles were seized vide seizure memo Ex.PW35/M-2. On 17.04.1998, search warrants of House No. 2071, Type-IV, Gulabi Bagh, Delhi was obtained which is Ex.PW35/M-3. Certain articles were seized vide sieure3 memo Ex.PW35/M-4. On 17.04.1998, he obtained search warrants of House No. 1298, Sector-15, Sonipat, Haryana which is Ex.PW35/M-
5. Certain articles were seized vide memo Exz.PW8/A. On 17.04.1998, he obtained search warrants of advocate chamber no. 3, Criminal Wing, Tis Hazari Courts which is Ex.PW35/M-6. On 17.04.1998, he obtained search warrants of advocate chamber no. 541, West Criminal Wing, Tis Hazari Courts, Delhi which is Ex.PW35/M-7, Same day, search warrants of House No. WZ-40, Village Chaukhandi, Tilak Nagar, New Delhi, Ex.PW35/M-8 were obtained. Account statement from Punjab and Sind Bank, Vasant Vihar was obtained. Letters from Punjab and Sind Bank are Mark Ex.PW35/M-9, Ex.PW35/M-10, Ex.PW35/M-11 and Ex.PW35/M-
12. Account statement is Ex.PW35/M-13.
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 19 of 75 On 06.06.1997, he sent a letter to Civil Naziar, Tis Hazari Courts, Delhi for preservation of Dak Register (Register No. 23) for the period from 20.04.19936 to 26.04.1993 containing entry no. 28142 in respect to summons issued from the Court of Smt. Kamlesh Sambharwal to Girdhari Lal Chawla. Letter is Ex.PW35/M-14. Attested photocopies of relevant pages of the dak register are mark Ex.PW35/1 (colly). He recorded the statement of Sh. Satpal Shabharwal, Clerk cum Cashier in Punjab and Sind Bank, Green Park, New Delhi which is marked as Ex.PW35/M-15. He also recorded statement of Sh. Balwant Singh, Officer of Punjab and Sind Bank, Green Park, New Delhi which is Ex.PW35/M-16.
39. Sh. S.K. Sharma was examined as PW36. He deposed that he was posted as LDC in the Office of Sub Registrar-III, Asaf Ali Road. He produced the original register Volume No. 2020, Book-IV containing decree in the suit no. 245/93 registered vide registration no. 3658. The photocopy of same was marked as Ex.PW36/A.
40. Sh. Virender Nath Sharma was examined as PW37. He identified the signatures of Navtej Singh at point B on Ex.PW35/A.
41. Sh. Sunil Dutt was examined as PW38. He deposed that in 1991 he joined as junior advocate with Sh. R.N. Vats. During this time, he came in contact with Dinesh who was introduced by his common friend Sh. Vivek Srivastava. In April, 1993 Sh. Vivek Srivastava FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 20 of 75 told him that he wanted to talk about a case. They went to a chamber, whose number he does not remember. There were 3-4 persons already present whom he did not know. Dinesh told him to file a one civil case regarding declaration, injunction as Dinesh was only dealing in criminal case, whereas his senior advocate was dealing in civil cases. He expressed his inability due to pre- occupation for drafting. However, he agreed to appear in the Court. In the afternoon time, petition was handed over to him by the Clerk of the said chamber. He read the said petition and went to said chamber where he met Madan Lal Dua. Madan lal Dua signed on the said petition, vakalatnama and some other papers. Petition is already Ex.PW34/A, vakalatnama is Ex.PW38/1. Duly signed documents were handed over to Munshi for filing in the Court of Senior Civil Judge. On the next day, he was informed that the case was marked to Smt. Kamlesh Sambharwal, Civil Judge. On the same day, post lunch he appeared in the said Court and requested for a short date and dasti summons. Short date of 2-3 days was given. After filing of process fee vide process fee form Ex.PW38/3, summons were issued which were given to Clerk and same were further handed over to Nazarat Branch. He informed Dinesh about the said fact. On the next date of hearing, he appeared in the Court and the matter was kept pending for appearance of petitioner. On the way back, he met Dinesh and informed about the absence of plaintiff. He told him that FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 21 of 75 plaintiff was not well. When he was going again to the Court for second call, he met Dinesh alongwith 2-3 persons where he was informed that one person holding the summons of Girdhari Lal Chawla and he had settled the matter with plaintiff. Thereafter, he alongwith Girdhari Lal appeared before the Court. The Court enquired about the parties. Girdhari Lal introduced himself as defendant. He further told that he had settled the matter with the plaintiff. He informed the Court that plaintiff could not appear being unwell. Girdhari Lal requested for getting his statement recorded regarding settlement as he did not pursue the matter. The Court asked for his identification documents. He showed photocopy of one ration card. Thereafter, his statement was recorded. He informed the Court that he had not engaged any lawyer. He identified Girdhari Lal on Ex.PW38/2 since he was carrying the summons of the case and had showed some identification documents in the Court and also that it was his first independent case. Thereafter, the matter was kept for orders. He applied certified copies. After finalization of the case, he sent the file to Dinesh. List of document is Ex.PW38/4 and application Order 39 Rules 1 & 2 CPC is Ex.PW38/5.
42. Sh. Shamsher Singh was examined as PW39. He produced the account opening form of accused Subhash Chand Ex.PW39/A, account statement of accused Madan Lal Dua Ex.PW39/B, account FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 22 of 75 opening form is Ex.PW39/C. Mark PW39/A, Mark PW39/B and Mark PW39/C seems to be documents of his bank.
43. Sh. Kamlesh Kumar was examined as PW40. He deposed that on 05.07.1999 and 23.09.1999, he was posted as Administrative Civil Judge Delhi. He gave sanction under section 197 Cr.PC against accused Madan Lal and complaint under section 195 Cr.PC against Madan Lal which are Ex.PW40/A and Ex.PW40/B.
44. ACP Mohinder Kumar was examined as PW41. He deposed that in February, 1997, FIR No. 99/1997 was registered under the orders of Hon'ble High Court of Delhi and investigation was taken by him. Accused Subhash Chand produced original sale deed in respect of property no. C-7, Hauz Khas Enclave, New Delhi executed between Madan Lal Dua and Daya Nand Singh which was taken into possession vide production memo Ex.PW41/A. Original sale deed is Ex.PW41/B. He took specimen signature of accused Subhash Chand on four sheets which is Ex.PW40/C and he obtained specimen handwriting of accused Subhash Chand on 31 sheets which is Ex.PW41/D. He obtained specimen signatures of accused Madan Lal on six sheets vide memo Ex.PW29/E and Girdhari Lal which is Ex.PW41/E. Specimen signatures of accused Ramesh Chand is Ex.PW41/F. He recorded disclosure statement of accused Subhash Chand which is already Ex.PW13/A and accused Ramesh Chand FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 23 of 75 which is already Ex.PW13/B. He took into possession two papers of photocopy of passport of Girdhari Lal vide seizure memo Ex.PW41/G. The copy of passport no. 500097663 is marked as 41/A. Copy of passport No P886626D is marked as Mark 41/B. Personal search of accused Sain Kumar was conducted which is Ex.PW41/H, personal search of accused Ramesh Chand is Ex.PW41/I, personal search of accused Subhash Chand is Ex.PW41/J. On 08.02.1997, FIR was registered on his rukka. He prepared site plan Ex.PW41/K.
45. Sh. Alok Kumar, ACP was examined as PW42, He deposed that on 14.05.1998, investigation of the case was marked to him. By this time, accused Ramesh Chand, Subhash Chand, Sain Kumar and S.D. Vashisht were already arrested. He constituted a team of ACP Ravi Shankar and inspector Data Ram for carrying out further investigation. Notice under section 160 Cr.PC issued to accused Ramesh Chand and Subhash Chand and interrogated them. Sh K.C. Dass was joined in the investigation.
On 14.07.1998, he alongwith his team went to C-7, Hauz Khas Enclave, New Delhi where two employees namely Ganga Dev and Vikender were present who told them that they were working for Raj Singh and Daya Nand. Both these persons were throughly interrogated. On 15.07.1998, both the accused persons were arrested FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 24 of 75 and their personal search were carried out. Disclosure statement were recorded. On 17.07.1998, permission to arrest Dinesh Smabhawal was obtained. On 13.08.1998, Registrar of Punjab and Haryana Court informed that Dinesh Sambharwal was already under suspension. On 18.08.1998, a letter was received from the Registrar of Hon'ble Punjab and Haryana High Court granting permission for further action.
On 09.07.1998, a letter was received from Pay and Accounts Officer, Tis Hazari Court mentioning that one Manoj Shah had applied for non judiciary stamps papers in the name of Daya Singh on 11.11.1994. He prepared the chargesheet and filed it in the Court.
46. Ramesh Shah was examined as PW43. He deposed that he was working as Chartered Accountant since 1987. He was looking after income tax and other professional matters of Dayanand Singh and his family since 1986-87. He knew Sh. Raj Singh, CA of his brother Daya Nand Singh. In July, 1994, he was introduced to one Madan Lal Dua and Subhash Chand by Dayanand Singh who were willing to sell their property at C-7 Hauz Khas. They showed some documents which were registered in the name of Madan Lal Dua through Court Decree. They collected documents for verification. Documents were verified from Sub Registrar Office and found to be correct. Thereafter, Dayanand Singh discussed the matter with his advocate Sh. P.K. Aggarwal who gave green signal for purchase of FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 25 of 75 abovesaid property. An agreement took place between Madan Lal Dua and Daya Singh on 16.07.1994 which was witnessed by him for a total consideration of Rs. 61 lacs. At the same time a cheque of Rs. 1 lac Mark A was issued by Dayanand Singh in favour of Madan Lal Dua who is accused Sain Kumar in the present case. A public notice dated 22.07.1994 Ex.PW43/X and Ex.PW43/Y were published in some national newspaper by Advocate Sh. P.K. Aggarwal on behalf of Daya Nand Singh. Thereafter, income tax clearance under section 269 UC of Chapter 20 C on Form 37 I was signed by both the parties for issuance of no objection certificate from appropriate authorities in his presence which is Ex.PW43/1 bearing signature of Madan Lal and Daya Nand Singh. It was agreed between the parties that a sale deed would be executed after obtaining abovesaid NOC. In October, 1994, Madan Lal Dua and Subhash Chand came to the office of Daya Nand Singh and asked for balance consideration. Daya Nand Singh told them that balance amount shall be handed over at the time of execution of sale deed and transfer of possession. Madan Lal Dua and Subhash Chand insisted for payment to which Daya Nand Singh agreed to issue a cheque of Rs. 25 lacs to Madan Lal Dua and Subhash Chand. On insistence of two, Daya Nand Singh gave Rs. 5 lac in cash. Rs. 55 lacs would be paid at the time of execution of sale deed. The receipt of Rs. 5 lac is Ex.PW43/2 bearing signature of Madan Lal Dua and Subhash Chand. Public notices were replied by FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 26 of 75 Smt. Sobha Samat through her advocate claiming ownership of the property. However, she did not press his claim when Sh. P.K Aggarwal wrote letter 20.08.1994. After receiving NOC from appropriate authority, another public notice Ex.PW43/3 was given by P.K. Aggarwal. No objections were received from anyone.
On 11.11.1994 Daya got stamp paper of Rs. 4,88,000/- for registration purposes of abovesaid property. Sale deed got typed and same was signed by Madan and Daya Nand Singh which was witnessed by him. Two cheques of Rs. 25 lacs and Rs. 30 lacs were given by Daya Nand to Madan Lal Dua.. Receipt is Ex.PW43./4 and Ex.PW43/5. Since it was very late for registration, the same was postponed for next date. Madan Lal Dua and Subhash Chand took original sale deed and two cheques with them. On 11.11.1994, Sh. P.K. Aggarwal received a letter from Sh. D.K. Garg Advocate informing him of some fraud. Smt. Sobha Samat had already complaint before the Hon'ble High Court. Sh. P.K. Aggarwal adviced Daya Nand Singh not to proceed. He drafted a letter for stopping of payment of abovesaid cheques on behalf of Daya Nand Singh. He identified accused Madan Lal Dua who is Sain Kumar.
47. Sh. Ravi Shankar was examined as PW44. He deposed that on 14.05.1998, investigation of the present case was handed over to DCP Alok Kumar. He joined as member of investigating team. He deposed on same lines as other witnesses of the raiding team. FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 27 of 75
48. The entire incriminating evidence brought on record against the accused persons were put to them and their statement under section 313 Cr.PC were separately recorded. It is stated by accused Daya Nand that he is innocent and has been falsely implicated in the case. He did not know the decree was obtained by impersonation and fraud. He was made a witness in the present case and his statement was also recorded by the police. However, later on he was arrayed as an accused. He is himself as victim and has paid Rs. 5 lac in cash and Rs. 1 lac through cheque to Madan Lal Dua. He had taken all the precautions before purchase of property by issuing public notice and taking income tax clearance. However, later on advise of his counsel, he called off the sale. In case he was aware that Madan Lal Dua was an imposter, he would have never entered into a agreement to sell with him. No evidence has been brought on record to prove the alleged offence against him. He was a bonafide purchaser.
49. It is stated by accused Raj Singh that he was not involved in the transaction of purchase of property in question and the same was dealt by his brother Daya Nand Singh. He was not involved in this case in any manner.
50. It is stated by accused Madan Sharma that he had performed his duties as delegated to him by Ld. District & Sessions Judge.
51. It is stated by accused Ramesh Chand that he has nothing to do FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 28 of 75 with the case or for obtaining the decree in question. He is not involved in the alleged transaction with Daya Nand Singh regarding the sale of property in question.
52. It is stated by accused Kamlesh Sabharwal that it is a false case.
The Hon'ble Chief Justice of High Court never permitted to prosecute against her in this case.
53. It is stated by accused Dinesh that he was a contesting advocate and was soar in the eyes of police and Crime Branch.
54. It is stated by accused Sain Kumar that he has nothing to do with the alleged transaction or obtaining the decree from the Court. The record and documents have been manipulated and fabricated to make out a false case.
55. It is stated by accused Subhash that he has nothing to do with the alleged transaction or obtaining the decree from the Court. The record and documents have been manipulated and fabricated to make out a false case.
56. Two witnesses were examined on behalf of accused Raj Singh and Daya Nand Singh i.e DW1 P.K. Aggarwal was examined to prove public notice Ex.PW43/X, Ex.PW43/Y. He admitted the receipt of letter Ex.PW24/A. He also produced letter dated 20.08.1994 written by him to PW24 Sh. Dinesh Kumar Garg, FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 29 of 75 Advocate. The same was Ex.DW1/A. He also admitted public notice Ex.PW43/3. He admitted receipt of letter Ex.PW24/B. He was examined on behalf of the accused persons to show that abundant caution was taken by the accused persons before entering into agreement to sell with the other accused.
57. DW2 Manoj Shah, he was employee of Daya Nand Singh. He deposed that on 16.07.1994, he was called by accused Daya Nand Singh in his office where Ramesh Shah (PW43) as well as accused Daya Nand Singh were present with two more people who introduced themselves Madan Lal Dua and Subhash Chand. Madan Lal Dua claimed himself to be the owner of property C-7, Hauz Khas, New Delhi. Madan Lal Dua informed him that he had become the owner of the property by a Court decree dated 24.04.1993. He further informed him that the decree was got registetered by him in the office of Sub Registrar on 21.07.1993 and that his photograph was also affixed on the decree. Accused Daya Nand Singh agreed to purchase the property for Rs. 60 lacs. A sum of Rs. 1 lac was paid in advance through cheque. The agreement was executed in his presence. He appended his signatures on the said agreement. Both Daya Nand Singh and Madan Lal Dua signed in his presence and then he and Subhash Chand signed as witnesses. Agreement to sell is Ex.DW2/A. He also identified his signatures as well as signatures of FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 30 of 75 Madan Lal Dua and Subhash Chand on document Ex.DW2/A. He pointed out towards accused Sain Kumar and stated that he appears to be the person who introduced himself as Madan Lal Dua and correctly identified accused Subhash Chand.
58. I have heard Ld. APP for the State and Ld. counsels for the accused persons and have also perused the judicial file carefully.
59. As per the prosecution story, there are two sets of accused persons, one's who were involved in obtaining the decree i.e accused Ramesh Chand, Subhash Chand, Dinesh Sambharwal, S.K. Goel and Kamlesh Samharwal. Accused Sain Kumar joined the conspiracy after obtaining the decree I.e at the time of registration of the same before the registrar office. The second set of accused are Daya Nand and Raj Singh, who entered into agreement to sell with Sain Kumar on the basis of decree obtained by the aforesaid accused persons.
60. It would be pertinent to mention here that accused S.K Goel passed away and hence, was not cheargesheeted alongwith the other accused persons.
61. It is vehemently argued on behalf of State that all the accused persons were involved in criminal conspiracy and that there is seldom direct evidence to conspiracy. Ld. APP has relied upon the judgment titled as Kehar Singh v. State (Delhi Admn.) reported as FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 31 of 75 AIR 1988 SC 1883, the Hon'ble Supreme Court had observed:
"38. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquiry whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Not it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. [184D-E].
The relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 32 of 75 coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict.
But it cannot be ignored that a very cautious approached has to be adopted by a Court while appreciating circumstances evidence. In this regard, reliance is being placed on judgment of Hon'ble Supreme Court titled as Balkar Singh Vs. State of Haryana reported as Crl. Appeal No. 606/2008 that "it is a settled law that while appreciating circumstantial evidence, the Court must adopt a very cautious approached and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care has to be taken in evaluating circumstantial evidence if the evidence relied on is responsibly capable of two inferences, the one in favour of the accused must be accepted. The circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established consistent only with the hypothesis of the guilt. In order to prove the charge of conspiracy, it is necessary that the prosecution should prove the names of the place or places where it was hatched, names of the persons hatching it and how was it hatched."
62. I would deal with each accused separately as they have been FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 33 of 75 charged with the different offences and no substantive offence under section 120B IPC has been framed against all the accused persons.
63. Accused Kamlesh Sambharwal has been charged with the offence under section 120B IPC read with section 193 IPC, 109 IPC read with section 205 IPC, under section 219 IPC.
64. As per the prosecution story, the following circumstances came to light owing to which a prosecution was lodged against her. First, during the hearing of the suit filed by Madan Lal Dua, accused Kamlesh Sambharwal deliberately committed certain acts which show her conspiracy in the matter:
(i) Suit for declaration of title on the basis of adverse possession was instituted on 21-22.04.1993 and notices for the same were received for 24.04.1993 and the decree was passed on the same day.
As far as this allegation that the suit was instituted on 22.04.1993 and the decree was passed on 24.04.1993 is concerned, on request of either party a short date can always be given by a judicial officer. Moreover the testimony of PW38 would be of relevance "I informed the Court that today plaintiff could not appear since unwell. Girdhari Lal Chawla requested for getting his statement recorded regarding settlement as he did not want to pursue the matter."
(ii) She did not evaluate the cost of property no. C-7, Hauz Khas, FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 34 of 75 which was more than Rs. 25,000/- i.e limitation of the Commercial Judge.
(iii) She did not ask for any original document from the defendant Sh. Girdhari Lal Chawla in support of his claim of ownership of plot no. C-7, Hauz Khas, New Delhi.
Now coming to the second allegation of evaluation of cost is concerned, it can at the most be termed as lack of knowledge or erroneous decision, mens-rea to commit a criminal act cannot be assumed but has to be proved by cogent evidence. Testimony of PW 34 Sh. Virender Singh Rana is of relevant "The procedure in the present file has been followed in due course. The file has been maintained as per the procedure and in normal course of business and even the proceedings have been record in normal course of business like any other case." Same is the observation about the third allegation about non asking for original documents.
(iv) Sh. S.D. Vashist, advocate for plaintiff asked for adjournment (statement u/s 164 Cr.PC) as his client had not come but Smt. Kamlesh Sambharwal was inclined to get the statement of the defendant recorded on the same day which reflects her complicity.
As far as the fourth allegation as stated above is concerned, S.D. Vashist who was examined as PW38 has deposed in the Court that FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 35 of 75 the statement of defendant was recorded on request of defendant that he cannot come to the Court again and not insistence of the accused.
(v) Statement of Sh. S.D. Vashist u/s 164 Ccr.PC also reflects the conduct of Smt. Kamlesh Sambharwal. She also suggested Sh. S.D. Vashist to identity the imposter Sh. Girdhari Lal Chawla, in such a manner that he could not refuse the request of the Court.
Coming to the next allegation, as per the deposition of PW38, he volunteerd to identify the defendant and it was not accused who asked him to do the same. Testimony of PW38 would be of relevance "On being asked he had engaged any lawyer. He informed that he had not engaged any lawyer. Court asked as to who will identify him. I identified Girdhari Lal."
B. Sh. Dinesh Sambharwal was residing with his mother Smt. Kamlesh Sambharwal on 21.04.1993 and practicing at Tis Hazari Court, Delhi when the suit in question was filed.
As far as this circumstance is concerned, this in itself is not sufficient to prove the mens-rea of accused unless the knowledge of the entire conspiracy is proved by the prosecution.
C. Smt. Radha Rani, Assistant Ahlmad of the Court of Smt. Kamlesh Sambharwal at the request of Sh. Dinesh Sambharwal collected the certified copy of the decree against her signature.
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 36 of 75 Smt. Radha Rani was examined as PW5. She deposed that that copying receipt was handed over to her by Nazir Mr. Jitender Joshi and not accused Dinesh Kumar as alleged. She even failed to identify accused Dinesh Kumar. Testimony of PW5 Smt. Radha Rani would be relevant that "it is wrong to suggest that on 27.04.1993 Copying section receipt was handed over to me by accused Dinesh Kumar to bring the certified copy from the Copying Section. Vo. That receipt was handed over to me by Nazir Mr. Jitender Joshi. I did not know the accused Dinesh Kumar. It is further wrong to suggest that after obtaining the certified copy, I handed over the same to accused Dinesh Kumar. Attention of the accused was drawn towards the accused Dinesh Kumar, present in the Court but the witness failed to identify the accused."
D. In the statement of Sh. Madan Lal Dua, he stated that he was taken by Subhash Chand to Sh. Dinesh Sambharwal, advocate who got signed certain papers in good faith, which were later on misused by him for getting the decree. The decree was passed by the Court of Smt. Kamlesh Sambharwal, Commercial Judge, who is mother of Sh. Dinesh Sabharwal. Sh. Dinesh Sambharwal had told him that signed papers were torn by him but same were used for filing the suit. Sh. M.L. Dua identified his signature on the plaint filed in the Court.
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 37 of 75 Sh. Madan Lal Dua was not produced by the prosecution hence, the above allegation stands disproved. Moreover prosecution has failed to prove that accused had knowledge of the alleged conspiracy.
(E) Sh. Dinesh Sambharwal is the son of Smt. Kamlesh Sambharwal. Sh. Dinesh Sambharwal was contacted by accused Subhash Chand through his brother-in-law Vinod Mehra @ Bittoo.
As far as the last allegation is concerned, the same is contradictory to the own story of the prosecution which starts with accused Ramesh Chand approaching Dinesh and Subhash Chand is introduced to Dinesh by Ramesh Chand. Hence, this also stands unproved against the accused.
65. None of the prosecution witnesses has deposed anything against the accused Kamlesh. Not a single allegation levelled by the prosecution has been proved. The conduct of the accused while passing the decree can at the most be termed as an error or lack of knowledge but it cannot be stretched further to say that she had criminal intention while deciding the case.
66. The present accused has been charged with the offence under section 120B read with section 193 IPC, section 109 IPC read with section 205 IPC and section 219 IPC. On discernment of entire evidence, none of the offence stands proved against the present FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 38 of 75 accused. In order to prove the fact that the accused conspired with the other co-accused, the first ingredient which the prosecution was required to prove was the 'knowledge of the act'. None of the witnesses examined by the prosecution has stated that she was informed by her son about the entire incident. Moreover, it has not been proved that she was a beneficiary in any way in the alleged incident. PW35 Sh. V.K. Sobti admitted in his cross examination that "nothing incriminating was recovered from the search of her house. He did not find any bank statement of the accused to prove that she had obtained wrongful gain from the alleged conspiracy."
67. Another important fact which cannot be ignored is that the suit was not filed directly in her Court rather the same came to her Court through Senior Civil Judge. It is not alleged by the prosecution that the case reached her Court as the Senior Civil Judge was also managed. In absence of the entire link between the present accused and the other co-accused, the offences with which she has been charged cannot be said to be proved. Moreover, PW38 Sh. Sunil Dutt Vashist stated that he was not even aware that accused Kamlesh was mother of accused Dinesh. This statement has strong bearing on the fact that she had no knowledge about the alleged conspiracy.
68. It is argued on behalf of the accused that a proper sanction under section 197 Cr.PC was not obtained. The accused in order to prove FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 39 of 75 the said fact has relied upon judgments titled as CBI Vs. Ashok Kumar Aggarwal reported as IV (2014) SLT 760, Mohd. Iqbal Ahmad Vs. State of AP, AIR 1979 SC 677. As far as this argument is concerned, testimony of PW23 would be relevant. It is categorically stated by the said witness that though the Lt. Governor of Delhi did not give him any verbal or written authority to sign the sanction order but as per GNCT (Authentication of order) issued by the Government of India, the officers working in the Delhi Secretariat of the rank of Under Secretary and above are competent to convey the order duly passed by the LG for and on his behalf. Hence, the said witness has proved that the sanction order signed by him was through the office order issued by the government and that he had authority to convey the same to the accused. He had also stated that he had gone through the entire record forwarded by the Hon'ble High Court of Delhi before passing the sanction order. In these circumstances, it cannot be said that a valid sanction was not given.
69. From the above discussion, the offences alleged against the accused stand unproved. The benefit of which accrues in her favour.
70. Now I would proceed to decide the offence with which the accused Dinesh Sambharwal has been charged. Accused Dinesh has been charged with the offence under section 109 IPC read with FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 40 of 75 section 205 IPC. The story of prosecution is that Ramesh Chand approached Dinesh to obtain a decree for plot no. C-7, Hauz Khas, New Delhi. The material witness whose testimony would be relevant in order to prove the guilt of accused Dinesh is Sunil Dutt Vashisht (PW38). S.D. Vashisht (PW38) deposed that he was introduced to Dinesh through Advocate Vivek Srivastav. This Vivek Srivastav has not been examined to prove the link between S.D. Vashisht and Dinesh. PW38 further deposed that he was called to his chamber by Dinesh. The number of the chamber he does not remember. The petition as per him was drafted by Dinesh and handed over to him by Clerk of Dinesh. This Clerk has neither been named nor produced in the witness box to complete the link. Thereafter, the petition was filed by him in the Court. The same was marked to accused Kamlesh Sambharwal. He appeared in the Court and requested for a short date and dasti summons. The summons were taken dasti and were handed over to Nazarat Branch. This fact was informed to Dinesh.
71. In order to prove the offences with which the accused has been charged, prosecution was required to prove connection of Dinesh with the plaint which was filed in the Court. For this purpose, the prosecution was required to prove that the plaint was prepared by Dinesh. Neither the chamber number of Dinesh has been revealed nor the computer/type writer through which the petition would have FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 41 of 75 been typed has been seized to prove his connection with the petition. The only witness on whose testimony Dinesh has been charged is S.D. Vashisht, who himself was a co-accused (though later discharged by the Court). It is a very week piece of evidence. Moreover, oral testimony of PW38 is neither corroborated by any other prosecution witness nor through any documentary proof. PW38 had stated in his cross examination that he can neither admit nor deny that Dinesh had any involvement in this case. Further, he has also stated in cross examination that he did not know where Dinesh was residing nor was he aware that Kamlesh Sambharwal was mother of accused. His connection or acquaintance with Dinesh was through Vivek Srivastav. This Vivek Srivastav has not been produced to prove if at all there was any nexus between S.D. Vashisht and accused Dinesh.
72. The prosecution has relied upon one receipt Ex.PW8/A which was seized from his house. No opinion was obtained on sole document which is Q130 which was alleged to be recovered from the house search of this accused.
73. Name of accused Dinesh appeared in disclosure statement of accused Subhash. Accused Subhash pointed out towards quarter no. 1632, Gulabi Bagh stating it to be the house of Dinesh. Pointing out memo Ex.PW29/A was prepared. The prosecution has not been able FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 42 of 75 to prove that accused Dinesh was residing at this quarter since he was not a government employee and the quarter could not have been allotted to him. Moreover, as per its own story, the prosecution has alleged that accused Dinesh was residing with his mother Smt. Kamlesh Sambharwal at 207, Gulabi Bagh.
74. None other witness of the prosecution has stepped into the witness box and deposed anything against accused Dinesh. Hence, the allegations levelled against him stand unproved.
75. Reliance is being placed on the judgment titled as Surjit Biswas Vs. State of Assam Crl. Appeal No. 1323/20011 that "Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 43 of 75 applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
76. The next accused is accused Madan Lal Sharma, who was the Process Server. He has been charged with the offence under section 193 IPC. As far as section 193 IPC is concerned, the same reads as under:-
193. Punishment for false evidence :
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 44 of 75 proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1- A trial before a Court- martial; is a judicial proceeding.
Explanation 2- An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
77. The pre-requisite to constitute an act of giving false evidence, a person must make a statement which is either false to the knowledge or belief of the maker or which the maker does not believe to be true.
Further, it requires that such statement is made by a person, first who is legally bound by an oath, second by an express provision of law to state the truth or third being bound by law to make a declaration upon any subject. Moreover, as per section 195 Cr.PC, offence punishable under section 193 IPC cannot be tried except on a complaint in writing of that Court or by such officer of the Court in which the offence is committed.
78. Though there is a sanction under section 197 Cr.PC against the FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 45 of 75 accused for prosecution but there is no complaint from the Court where the alleged offence is said to be committed. Even otherwise the report given by the accused was not on oath hence, the offence under section 193 IPC cannot be said to have been committed.
79. Even if the alleged offence is looked from the angle of merits, accused Madan Lal Sharma had given a report that summons were served on pointing out by the plaintiff. As per PW1 Sh. Satish Kumar, summons were marked to the accused in the normal course. In his cross examination, he admitted that "there is no vested interest of any process server to give any report whether favourable or otherwise." He also admitted that accused was process server for the said area for which the summons were addressed. The prosecution has not alleged that he was in conspiracy with the other co-accused and has deliberately given a false report. At the maximum his report can be termed as erroneous but definitely mens- rea to commit an offence stands unproved.
80. I would now deal with the allegations levelled against accused Raj Singh and Daya Nand. Accused Raj Singh has been charged with the offence under section 120B IPC read with section 193 IPC, section 448 IPC read with section 120B IPC. Accused Daya Nand has also been charged with the aforesaid offences and in addition, under section 467 IPC read with section 120B IPC.
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 46 of 75
81. As per the prosecution story, which began with affidavit filed by Sh. V.K Dham Ex.PW30/A on the basis of enquiry conducted by him under the directions of Hon'ble High Court, it is alleged against the aforesaid accused persons that they had trespassed into the property in question and thereafter entered into conspiracy to grab the said property. In order to substantiate the said allegation, certain alleged employees of accused Raj Singh were examined who stated that they have been occupying the property C-7, Hauz Khas on behalf of accused Raj Singh.
82. Interestingly, none of the employees whose statements were recorded during enquiry were produced before the Court but two alleged employees were examined during investigation were produced in the witness box as PW16 Bikender and PW17 Gagan Dev. Both these witnesses stated on oath that they do not know anything about the present case and in their cross examination by the Ld. APP have denied their employment or even acquaintance with aforesaid two persons.
83. Both the accused persons have been charged with the offence under section 448 IPC read with section 120B IPC. In order to prove the alleged offence, the prosecution was required to prove accused persons were in possession of the property prior to entering into agreement to sell with Madan Lal Dua. The prosecution has not only FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 47 of 75 failed to prove that both these persons trespassed into the property or were in possession even after they entered into agreement to sell.
84. Interestingly, there is no complaint by the alleged owner against the accused persons of dispossession. Nowhere in the writ petition filed before the Hon'ble High Court of Delhi by Smt. Sobha Samat, it is alleged that she has been dispossessed. Once there is no allegation of dispossession, the accused persons could not have been charged with the offence under section 448 IPC.
85. The prosecution story is that on 21.07.1993, the decree obtained by Ramesh Chand and Subhash Chand was got registered. Thereafter, Subhash Chand, Raj Singh and Daya Nand Singh entered into conspiracy and took illegal possession of the said plot after preparing some fictitious documents. After this, a notice was given in the newspaper by Raj Singh and Daya Nand Singh believing that nobody will come forward as the owner of the plot was residing abroad. In August, 1994 K.C Dass, attorney of the owner after reading public notice in the newspaper regarding the sale of plot, found some jhuggis inhabited by employees of Daya Nand Singh and Raj Singh. Daya Nand issued the cheque of Rs. 1 lac and two cheques of Rs. 50 lacs but there was no amount in his account. The amount was transferred in account of Daya Nand Singh by Raj Singh. Raj Singh transferred Rs. 1 lac in account of Daya Nand FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 48 of 75 Singh on 17.11.1994 while Daya Nand Singh issued a cheque of Rs. 1 lac on 16.07.1994. When the public notice was issued by aforesaid accused, counsel of Sh. K.C. Dass informed the counsel of two accused that the property was owned by Smt. Sobha Samat. But despite that they proceeded further and obtained income tax clearance and got documents like possession letter, receipt etc of the plot prepared. Thereafter, on advice of their counsel, the payment of two cheques was stopped by the accused persons. However, Rs. 1 lac was credited in the account of Sain Kumar. Rs. 90,000/- was withdrawn out of the said amount.
86. From the facts as have appeared above, it is alleged against the aforesaid two persons that they had trespassed into the property and thereafter entered into agreement to sell with Madan Lal Dua (Sain Kumar). They have been alleged to be in conspiracy with accused Subhash and Sain Kumar in illegally trespassing into the property as well as entering into agreement to sell.
87. In order to prove the allegations against the aforesaid two persons, prosecution examined PW18 and PW19 from OBC Bank in which both the accused persons held their bank account. PW18 stated in his cross examination that accused Raj Singh had 75 accounts in his branch and there were standing instructions from him that if any cheque is presented for encashment of any of the FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 49 of 75 connected accounts and if the balance is not sufficient for encashment of cheque in the concerned account, then the required funds be transferred from Capital and Finance account and cheque be cleared. This witness was examined by the prosecution to prove that there was insufficient amount in the account of Daya Nand when the cheque was issued and the amount was transferred from the account of Raj Singh and cheque was cleared. This was done in order to prove conspiracy between two brothers. But on discerning the cross examination of PW18, it is clarified that the cheque was honoured owing to instructions issued by Raj Singh for clearing every cheque connected with his accounts in the bank. The cheque of Rs. 1 lac was thus honoured in this manner.
88. As per own story of prosecution, there was no role of aforesaid accused persons in obtaining the decree and they appeared in picture only once the decree was registered. Now in order to connect the aforesaid accused persons with the co-accused, prosecution should have proved the link between all the accused persons. None of the witness has been able to prove that either the decree was obtained in conspiracy with aforesaid two accused persons or that the agreement to sell was ante dated.
89. Contrarily, if the testimony of prosecution witness PW43 is discerned. Both the aforesaid two accused persons can be termed FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 50 of 75 more as bonafide purchasers rather than accused themselves.
90. The prosecution has miserably failed to prove the nexus between aforesaid two accused persons and the co-accused. The prosecution has failed to prove that the aforesaid two accused persons had trespassed into the property in conspiracy with Sain Kumar and Subhash Chand. Once it is not alleged by the complainant PW33 Sh. Kishan Chand Dass that his sister was dispossessed from the property or that any of the accused persons had trespassed into the property, allegations against accused persons stand unproved.
91. As far as offence under section 193 Cr.PC is concerned, it has already been discussed above as there is no complaint by any Court, accordingly cognizance under section 193 Cr.PC could not have been taken by the Court.
92. Now accused Daya Nand Singh has also been additionally charged alongwith accused Sain Kumar for committing an offence under section 467 read with section 120B IPC. It is alleged against the accused that he entered into an agreement to sell for plot no. C-7, Hauz Khas with Sain Kumar, whom he knew was not Madan Lal Dua. Further he also applied for income tax clearance under section 269 IT Act where Sain Kumar signed as Madan Lal Dua and also in conspiracy with Sain Kumar executed receipt dated 11.11.1994, possession letter dated 11.11.1994, sale deed in respect of property FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 51 of 75 no. C-7 thereby made false documents and committed offence under section 467 IPC. Not a single witness has been examined by the prosecution to prove alleged conspiracy between Sain Kumar and Daya Nand. On the contrary, PW43 Ramesh Shah has proved that Daya Nand was a bonafide purchaser who had taken all the precautions which a prudent buyer will take while entering into agreement to sell. As per his deposition, public notice in the newspaper which was widely circulated in the year was got published. Income tax clearance was also obtained. In case, his testimony is believed then accused Daya Nand Singh appears to be a victim himself rather being an accused. It is not alleged by the prosecution that Daya Nand Singh has forged signatures of anyone else. The prosecution has failed to prove that accused Daya Nand Singh had requisite knowledge that he was dealing with Sain Kumar and not Madan Lal Dua. Prosecution has failed to establish its own story that Daya Nand Singh was well aware about impersonation of Sain Kumar. Even if it is assumed that he had the requisite knowledge even then he cannot be charged with the offence under section 467 IPC for which the pre-requisite is that the false documents should have been created. Here, Daya Nand went ahead to enter into agreement to sell on the basis of registered sale deed which was executed in the name of Madan Lal Dua. He even paid the consented sale consideration amount to Madan Lal Dua (Sain FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 52 of 75 Kumar) for the same. He signed the documents with his own name hence, cannot be said to have committed forgery unless the prosecution was able to discharge the onus of proving the conspiracy between Sain Kumar and Daya Nand.
93. In his defence, Daya Nand examined two witnesses who have deposed that Daya Nand was unaware about the fact of Sain Kumar being impersonating Madan Lal Dua and that the decree was obtained by fraud. Both these witnesses have successfully passed the test of cross examination conducted on behalf of State. Contrarily, prosecution has not been able to establish it on record that there was meeting of minds between Sain Kumar and Daya Nand before entering into the agreement to sell.
94. In view of the aforesaid discussion, offence against accused Raj Singh and Daya Nand stands unproved.
95. Having discussed the role assigned by the prosecution to aforesaid accused persons, I would now deal with the second set of accused persons including Ramesh Chand, Subhash Chand and Sain Kumar. Ramesh Chand and Subhash Chand are the pioneers in the alleged conspiracy as featured by the prosecution.
96. As per the prosecution version, Ramesh Chand introduced Subhash Chand with accused Dinesh, who assisted them in obtaining FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 53 of 75 a fraudulent decree in the name of one Madan Lal Dua. This Madan Lal Dua never appeared before the Court to testify. The said decree was thereafter got registered in the office of Sub Registrar where Sain Kumar impersonated himself as Madan Lal Dua. Thereafter, a bank account was got opened in the name of Madan Lal Dua by accused Sain Kumar, who was introduced by accused Subhash Chand. Accused Ramesh Chand identified Sain Kumar before the Sub Registrar while registration of the decree. Further, all the three accused persons entered into the agreement to sell with accused Daya Nand for a consideration of Rs. 61 lacs. A cheque of Rs. 1 lac was received as earnest money which was withdrawn by way of a cheque by Sain Kumar. Sain Kumar also executed receipt for receiving the money from Daya Nand, possession letter, income tax clearance as well as sale deed. In all the aforesaid documents, Sain Kumar signed as Madan Lal Dua.
97. Before proceeding further, it would be pertinent to refer charges of each accused. Accused Ramesh Chand has been charged with the offence under section 120 B IPC read with section 193 IPC, section 109 IPC read with section 205 IPC, section 109 IPC read with section 419 IPC, section 448 IPC read with section 120 B IPC.
98. As far as offence under section 193 IPC is concerned, the same has already been discussed above as there is no complaint by any FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 54 of 75 Court, accordingly cognizance under section 193 Cr.PC could not have been taken by the Court.
99. The accused is further charged with abetment of false personation under section 109 IPC read with section 205 IPC. It is alleged against the accused that he instigated accused S.K. Goel (since deceased) to make a statement before the Court by impersonating as Girdhari Lal to suffer the decree.
100. On discernment of entire evidence led by the prosecution, the nexus between S.K. Goel and Ramesh Chand stands unproved. The only witness produced by the prosecution who was present at the time when the decree was obtained is PW38 Sunit Dutt Vashisht. He has neither named accused Ramesh Chand nor even identified him in the Court. None of the other witnesses examined have deposed that there was conspiracy between Ramesh Chand and S.K. Goel in obtaining the decree. Presence of Ramesh Chand is not proved at the time of obtaining the decree by any of the witness. There is no document on record through which it can be ascertained that he was either present or signed any document which was filed in the Court. Moreover, cognizance of offence under section 205 IPC can only be taken as laid down under section 195 Cr.PC upon a complaint in writing of that Court or of some other Court to which that Court is sub-ordinate.
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 55 of 75
101. Unless there is a complaint by the Court cognizance cannot be taken. Moreover, alleged instigation had to be proved either through oral evidence or through documentary evidence or at least circumstantial evidence should have been led to prove the alleged offence against accused Ramesh Chand.
102. Accused Ramesh Chand has also been charged alongwith co accused Subash Chand and Sain Kumar under section 109 IPC read with section 419 IPC and Sain Kumar has been charged with section 419 IPC. In order to decide whether the aforesaid accused have committed the offence as alleged, it would be pertinent to discuss the provision of section 419 IPC which reads as under:-
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.
Cheating by personation has been defined under section 416 IPC which reads as under:
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 FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 56 of 75 person really is.
103. In order to prove the offence under section 419 IPC, the essential ingredients are that:-
(a) the accused cheated someone
(b) that he did so by impersonation
104. Now cheating is defined under section 415 IPC Section 415 IPC reads as under:-
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".
105. The essential ingredient of cheating are that:
(1) deception of any person 2a fraudulently or dishonestly inducing that person
(i) to deliver any property to any person or
(ii) to consent that any person shall retain any property.
2b. Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 57 of 75
106. In the instant case, all the three accused persons have been charged that all the three accused persons affixed their thumb impressions as witnesses and by impersonation of accused Sain Kumar as Madan Lal Dua, dishonestly induced the Sub Registrar, Delhi to register the Decree. Accused Sain Kumar was charged with offence under section 419 IPC. Subhash Chand and Ramesh Chand for abetting impersonation were charged with the offence under section 109 IPC read with section 419 IPC.
107. It is alleged that on document Ex.PW36/A, Sain Kumar signed and put his thumb impressions as Madan Lal Dua and Ramesh Chand identified him as Madan Lal Dua by both signing and appending his thumb impressions Thereby induced the Registrar to register the decree in favour of Madan Lal Dua (Sain Kumar). In case, Ramesh Chand had not identified Sain Kumar as Madan Lal Dua, the Sub Registrar would have omitted to register the decree.
108. The questioned signatures and thumb impressions of Ramesh Chand and Sain Kumar were sent for forensic opinion and report of the expert witness PW2 is Ex.PW2/E and PW4/A.
109. It is argued on behalf of the accused persons that the thumb impressions and handwriting of the accused were obtained by the police official while the accused persons were in police custody. The signatures and thumb impressions were obtained forcibly. Moreover, FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 58 of 75 no detailed report has been given by PW2, how he reached to the conclusion while furnishing report Ex.PW2/E. Further, in the cross examination, it was put to the said witness "when was the said report given to which he replied that the report was submitted on 05.09.1997 but the report is dated 08.09.1997." Hence, report Ex.PW2/E is not the correct report which was given by PW2. He has also relied upon judgment in case titled as Sapan Haldar Vs. State, reported as 2012 SCC Online Delhi 3078 as per which, neither a police officer during investigation nor even a Magistrate can direct a person accused of having committed an offence to give his sample signatures or handwriting sample. The power lies with the Court concern under section 73 of the Indian Evidence Act, 1872.
110. In the judgment itself in paragraph no. 33, it was held that section 4 of the Identification of Prisoners Act, 1920 would not apply to offences punishable with death or imprisonment for life.
111. In the instant case, accused persons have been charged with the offence under section 467 IPC, in which the imprisonment extends to imprisonment for life. Even otherwise, it has been held in landmark judgment of State of Bombay Vs. Kathi Kalu Oghad reported as (1962) 3 SCR 10 that "When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 59 of 75 specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a "personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness'. A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
112. It has also been held in another judgment titled as Debaji Barthakur & Ors Vs. Sarnalata Devi & Ors, RSA No. 153/2003 decided on 02.04.2015 that "opinion of handwriting expert cannot be ignored in case detailed reasons have been given for reaching to FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 60 of 75 the conclusion." Accordingly, both the arguments advanced by counsel for the accused do not hold strength. The witness has identified his signatures on document Ex.PW2/E and has admitted that the same was filed by him. As far as the date is concerned, since the report was submitted in the year 1997 and he stepped into the witness box in the year 2011. It is not humanly possible to remember the exact date. It further held that "Matching of signatures and finger prints fall within the province of scientific enquiry by experts whose job it is to opine as to the points of similarity or dissimilarity of the disputed signature and /or finger print. Although section 73 does not impose any bar upon the court from making a visual comparison of the disputed signature/ handwriting with the admitted one so as to form its own opinion yet, such visual comparison made by the Judge himself would not be conclusive in nature. As has been observed by the Hon'ble Apex Court, the Judge should, as a matter of prudence and caution, avoid forming an opinion as regards the identity of the handwriting/ signature solely on visual comparison made by himself and leave the matter for the experts to decide. In a case where the opinion of expert is available on record, it would be improper for the Judge to draw a contrary opinion merely based on visual comparison by disregarding the expert opinion"
113. From the above discussion, it is established on record that decree FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 61 of 75 Ex.PW36/A was got registered by Sain Kumar whose photograph is also attached on the first page of decree with the assistance and on instigation of accused Ramesh Chand and the same was obtained by inducing the Registrar to register the same hence, offence under section 419 IPC is proved against the accused Sain Kumar and under section 109 IPC read with section 419 IPC is made out against accused Ramesh Chand.
114. As far as accused Subhash Chand is concerned, his signatures do not appear on the said document. None of the prosecution witnesses has stated that he was present at the time of registration of decree hence, he is acquitted of the said charge.
115. All the three accused persons have also been charged with the offence under section 448 IPC for trespassing into plot no. C-7, Hauz Khas in conspiracy with each other.
116. The prosecution has led absolutely no evidence to prove that aforesaid three accused persons had trespassed into the property as no witness has been examined to prove the same nor is there any allegation from the complainant i.e K.C. Dass that his sister was ever dispossessed from her property plot no. C-7, Hauz Khas, New Delhi. Once, there is no complaint from the owner that the aforesaid accused persons have illegally trespassed into her property, the offence cannot be said to have been committed by them. There is FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 62 of 75 neither an oral evidence or any documentary evidence to prove the offence with which the accused persons have been charged.
117. Accused Sain Kumar has been charged with the offence under section 467 IPC read with section 120B IPC for entering into an agreement to sell under assumed identity of Madan Lal Dua for plot C-7, Hauz Khas, New Delhi alongwith accused Daya Nand Singh. As already held above, Daya Nand Singh has been absolved of liability of this offence. Now it has to be seen whether Sain Kumar has committed offence under section 467 IPC or not. Accused Sain Kumar signed as Madan Lal Dua on the application for income tax clearance Ex.PW43/1 as well as on other documents as Ex.PW43/2, Ex.PW43/4 and Ex.PW43/5 and thereby committed offence under section 467 IPC.
118. In order to prove the offence under section 467 IPC, it would be pertinent to understand the provision as laid down under section 467:-
467. Forgery of valuable security, will, etc :-
Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquaintance or FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 63 of 75 receipt acknowledging the payment of money, or an acquaintance or receipt for the delivery of any movable property or 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.
119. (a) Essential ingredients:- Essentials of an offence under this section are as follows:-
(i) That the accused committed forgery;
(ii) That such forgery was committed in relation to a document which passports be;
(a) a valuable security; or
(b) a Will; or
(c) an authority to adopt a son; or
(d) which passports to give authority to any person to make or transfer any valuable security; or
(e) to receive the principal, interest or dividends thereon; or
(f) to receive or deliver any money movable property or valuable security or any document purporting to be an acquittance or receipt acknowledging the payment of money; or
(g) an acquittance or receipt for the delivery of any movable property or valuable security.
The essential ingredients of section 465 IPC would also be of relevance:
(a) Essential ingredients:-The elements of forgery are:
(i) The making of a false document or part of it; FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 64 of 75
(ii) Such making should be with intent
(a) to cause damage or injury to (i) public, or (ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property; or
(d) to cause any person to enter into express or implied contract; or
(e) to commit fraud or that fraud may be committed.
120. The condition precedent for an offence 467 IPC is forgery. The condition precedent for forgery is making a false document. Reliance is being placed in the landmark judgment of Hon'ble Supreme Court titled as Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr, reported as (2009) 8 SCC 751.
121. The provision of making a false document is laid down under section 464 IPC which reads as under:-
Section 464 defining "making a false document" is extracted below:
"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;
FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 65 of 75
(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 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 FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 66 of 75 made by the person in his lifetime, may amount to forgery.
An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
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.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
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.
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."
There is a fundamental difference between a FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 67 of 75 person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
122. In the present case, accused Sain Kumar will undoubtedly fall in the second category as mentioned in the analysis of section 464 IPC above.
123. In the instant case, accused Sain Kumar signed as Madan Lal Dua and created a false documents in the form of agreement to sell, receipts, income tax clearance documents and sale deed. Thus, the accused by creating all these false documents committed an offence under section 467 IPC. His disputed/quested signatures on various FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 68 of 75 documents such as Ex.PW41/B, Ex.PW43/1, Ex.PW43/4 have been matched with his admitted signatures and handwriting. Report of expert is Ex.PW4/A and Ex.PW2/E.
124. Accused Sain Kumar alongwith accused Subhash Chand has been charged with the offence under section 468 IPC read with section 120B IPC. Accused Sain Kumar by impersonating Madan Lal Dua opened a bank account on 12.11.1994 at Punjab and Sind Bank. He was introduced by accused Subhash Chand in opening the bank account. Accused Sain Kumar signed cheque no. 808162 and money was withdrawn by accused Subhash Chand under his signatures. Accused Sain Kumar also signed the deposit slip dated 16.11.1994 as Madan Lal Dua and thereby with an intention to cheat, allegedly committed offence under section 468 IPC read with section 120B IPC.
Provision of section 120B IPC discussed as under:-
Criminal Conspiracy Section 120B provides punishment for criminal conspiracy and provides as under :
Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 69 of 75 Criminal conspiracy is an independent offence. It is punishable separately. The ingredients of the offences of criminal conspiracy are:
i). agreement between two or more persons.
ii). an agreement to do or cause to be done either an illegal act or an act which is not illegal in itself but is done by illegal means.
Section 468 IPC reads as under :
468. Forgery for purpose of cheating:-Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
125. The essential ingredient of Section 468 IPC are as follows:-
(a) Essential ingredients:- An offence under this section has following essentials:
(I) That the accused committed forgery;
(ii) That he did so intending that the document or electronic record forged shall be used for the purpose of cheating.
126. The pre requisite of this section is that the forgery should be for the purpose of cheating.
127. In the instant case, though it is established on record that account bearing no. 9959 was opened by Sain Kumar in the name of Madan Lal Dua which is Ex.PW39/B. Sain Kumar was introduced by FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 70 of 75 Subhash Chand, who opened his account no. 9833 Ex.PW39/A in order to introduce Sain Kumar. Signatures on the aforesaid two documents of Madan Lal Dua and Subhash Chand have been matched with Sain Kumar and Subhash Chand respectively. Report is already Ex.PW4/A.
128. The prosecution has thus been able to prove that forgery has been committed by accused Sain Kumar and Subhash Chand. Though the same has not been proved to be for the purpose of cheating.
129. Accused persons have been charged for the offence under section 468 IPC but since the element of cheating is missing. In view of section 222 Cr.PC when a person is charged with an offence consisting of several particulars, a combination of sum only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
130. In the present case, forgery against both the accused persons stand proved but due to absence of element of cheating, accused persons cannot be convicted under section 468 IPC hence, both the accused persons are convicted for offence under section 465 IPC which is a minor offence.
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131. In the instant case, it is established that forgery was committed by both the accused persons in connivance with each other. Both the accused persons conspired to create false documents for the purpose of using the same for the purpose of sale of the property.
132. In the judgment titled as Suresh Chandra Bahri v. State of Bihar reported as 1995 Supp (1) SCC 80 it was observed by the Hon'ble Supreme Court:
"........In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub-section (2) of Section 120- A of the IPC, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in Section 120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may be FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 72 of 75 frustrated and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn. The observations made by this Court in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696, 699 : 1970 SCC (Cri) 274 : AIR 1971 SC 885, 886] may be quoted with advantage which read as under:
"Criminal conspiracy differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107 IPC. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 73 of 75 conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto." [Para 96, Suresh Chandra Bahri v. State of Bihar].
133. On discerning the entire facts and evidence led by prosecution both the aforesaid accused persons i.e Sain Kumar and Subhash Chand, it is proved beyond doubt that both the accused persons conspired with each other in committing forgery. DW2 and PW43 have identified them the accused persons to be present at the time of entering into agreement to sell. Accused Sain Kumar signed as Madan Lal Dua and Subhash Chand identified him hence, offence under section 120B IPC stands proved.
134. In view of the above discussions, accused Kamlesh Sambharwal, Dinesh Sambharwal, Madan Lal Sharma, Daya Nand Singh and Raj Singh stand acquitted. Accused Ramesh Chand is convicted under section 109 IPC read with section 419 IPC. Accused Subhash Chand is convicted for offence under section 465 IPC read with section 120B IPC and accused Sain Kumar is convicted under section 419/467/465/120B IPC.
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135. File be consigned to Record Room.
Announced in the open
Court on 08.12.2017 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 75 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 99/1997 PS Hauz Khas (Crime Branch) Page- 75 of 75