Delhi District Court
State vs Sunder Lal Etc. (" Convicted") Page 1 Of ... on 30 October, 2013
Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI CC No.:4/1 PS: Subzi Mandi U/s : 195 IPC Unique ID No.: 02401R0063352011 J U D G M E N T:
______________________________________________________________
(a) S.No. of the case : 4/1
(b) Name of complainant : Registrar General, Delhi High Court.
(c) Date of commission of offence : 11.12.2009
(d) Name of the accused : (1). Sunder Lal
S/o Late Sh. Bhuri Lal
R/o Plot No.171, Pocket17,
Sector24, Rohini, Delhi110085.
(2). Rani
w/o Sunder Lal
R/o Plot No.171, Pocket17,
Sector24, Rohini, Delhi110085.
(e) Offence complained of : U/s 195 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 30.10.2013
(h) Final Order : Convicted U/s 193 IPC
(i) Date of such order : 30.10.2013
State V/s Sunder Lal etc. (" Convicted") Page 1 of 29
Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief emanating from the record are that one complaint dated 17.02.2010 filed on behalf of complainant i.e. Registrar General, Hon'ble High Court of Delhi was received wherein it is disclosed that accused persons namely Sunder Lal and Rani filed a Writ petition (Criminal) No.1747/2009 titled as 'Sunder Lal and another Vs. The State, NCT of Delhi and others' in the Hon'ble High Court of Delhi on 04.12.2009, interalia swearing false affidavits with regard to identity of the owner of property bearing plot no.171, Pocket17, Sector24, Rohini, Delhi namely Sh. Vinay Bhagat and later on made false statements on oath before Hon'ble High Court of Delhi on 11.12.2009 affirming the contents of the said complaint as well as affidavits. After taking cognizance in the matter, both accused persons were summoned and supplied with the copy of complaint.
2. After supplying copy of complaint with documents annexed thereto in compliance of section 207 CrPC and after hearing arguments on charge vide order dated 07.07.2011, charge u/s 193 IPC was framed against the accused to which they pleaded not guilty and claimed trial.
3. In order to prove guilt of the accused, the prosecution examined four witnesses whereafter the prosecution evidence was closed and the statements of both the accused persons U/s 313 CrPC were recorded wherein they claimed to be innocent. Both the accused persons examined three witnesses in State V/s Sunder Lal etc. (" Convicted") Page 2 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 their defense evidence.
4. I have heard arguments advanced at Bar by Ld. APP for the State and Ld. counsel of both the accused persons and have also perused the entire material on record.
5. Before adverting to the adjudication on the rival contentions of both the sides, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
6. PW1 Sh. Pramod Kumar deposed that he was working as Assistant RegistrarcumPA to Registrar General, Hon'ble High Court of Delhi since January' 2009 and had seen the Criminal Complaint No.18/1, U/s 340 Cr.P.C r/w Section 195 & 196 of Cr.P.C Ex.PW1/A, made by Ld. Registrar General, Hon'ble High Court of Delhi against Sunder Lal and another. He affirmed the contents contained therein by duly identifying the signatures of Shri Rakesh Kapoor, the then Ld. Registrar General, Hon'ble High Court of Delhi at points A, B and C. He had identified the signatures of Shri Rakesh Kapoor, the then Ld.Registrar General, Hon'ble High Court of Delhi as he had seen him writing and signing during the course of his official duty. However, he did not have any personal knowledge of this case regarding the facts.
This witness was not at all cross examined on behalf of accused persons despite being afforded opportunity to this regard. State V/s Sunder Lal etc. (" Convicted") Page 3 of 29
Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013
7. PW2 Sh. Vijay Pal Singh produced the file bearing No.WP (Crl.)/1747 of 2009, bearing title of Shri Sunder Lal & Ors. V/s State which was consigned to Record Room (RKD Branch) by the orders of Hon'ble High Court of Delhi. He proved the certified copy of said judgment passed in aforesaid Writ Petition as Ex.PW2/A. He also proved the certified copy of aforesaid Writ Petition alongwith annexures as Ex.PW2/B, certified copy of Electricity Bill in the name of Vinay Bhagat as Ex.PW2/C, certified copy of School Certificates of the children of petitioner as Ex.PW2/D and certified copy of police complaint dated 31.10.2009 as Ex.PW2/E. He also proved the copy of courier receipts as Ex.PW2/F. During his cross examination conducted on behalf of accused persons, he stated that the original electricity bill was not in their record. He further admitted that originals of Ex.PW2/D and Ex.PW2/F were also not in their record.
8. PW3 Sh. Vinay Kumar Bhagat proved his statement Ex.PW3/A as recorded on 11.12.2009 by Hon'ble High Court of Delhi in WP (Crl.) No. 1747/2009. He testified that the extension period for construction of property in question was from 01.04.2003 to 03.06.2003. Site plan application dated 22.05.2003 and the plan was sanctioned on 12.06.2003 which was valid upto 11.06.2005 and the construction was completed upto March' 2005. He produced certified Copy of his Voter I Card and passport proved as Ex.PW3/B (Colly) and certified copy of his Enrolment Certificate with Bar Council of State V/s Sunder Lal etc. (" Convicted") Page 4 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 Punjab & Haryana proved as Ex.PW3/C. This witness was extensively cross examined on behalf of both the accused persons wherein he stated that he did his LLB from Delhi University in the year 1974. The property in question was applied by him with DDA in the year 1981. He denied the suggestion that DDA Slip Mark A bearing No.09460, dated 31.03.1981 in respect of deposit of Rs.5,000/ for Rohini MIG Scheme was not for a plot. He admitted that original of DDA Slip bearing No.09460, dated 31.03.1981 was not in his record. However, he volunteered that at the time of payment, same was got adjusted and original was submitted with DDA. He did not know from which Bank or Account Number, he had made the payment of Rs.5,000/ to DDA. He denied the suggestion that he was not having any solid proof regarding disbursement of Rs.5,000/ to DDA by him. He admitted that he had no proof in his record regarding the disbursement of initial amount to the DDA. He denied the suggestion that he had not paid initial amount to DDA. He further denied the suggestion that his name was Vinay Kumar in his school record. However, he stated that his name was Vinay Kumar Bhagat in his school record. He admitted that his name mentioned in Certificate of Enrollment issued by Bar Council of Punjab and Haryana was Vinay Kumar and there was no mention of his surname Bhagat. He further admitted that his name mentioned in Voter Icard, issued on 11.10.1984 was Vinay Kumar and there was also no mention of his surname Bhagat and the address mentioned therein was H. No. 691, Ward No.19, Sonepat, District Sonepat. However, he volunteered that his State V/s Sunder Lal etc. (" Convicted") Page 5 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 name mentioned in his PAN Card, Passport and ICard issued by District Bar Association was Vinay Kumar Bhagat. He duly marked copy of his PAN Card as Mark B and copy of his ICard issued by District Bar Association, Sonepat as Mark C. His passport carried the date of issue as 28.01.2010. However, he volunteered that he had got renewed passport thrice, firstly issued from Chandigarh Regional Office, then Delhi Office, wherein his name, middle name and surname were as it is in this very passport. All the expired three passports were in his possession however he did not produce the same before the Court. He admitted that there was no mention of date of issuance, in his I Card issued by District Bar Association, Sonepat. He denied the suggestion that at the relevant time, he did not have means in his possession at the time of applying DDA Plot. However, he volunteered that he had income certificate dated 27.03.81 bearing no. 308/SSD issued by SDO Sonepat, Ex.PW1/DA. He denied the suggestion that his parentage and address was not mentioned on Ex.PW1/DA . He further denied the suggestion that he did not have any proof of his residence at 12 B, Jeevan Nagar, Sonepat when he had applied for DDA Plot. He admitted that there was no bank transaction of making the payment to the DDA through Cheque. However, he volunteered that there was bank challan Ex. PW1/DC1 and Ex. PW1/DC2, through which the cash was deposited. He also produced the certificate dated 21.03.2012 issued under the signature of Senior Manager, PNB City Branch, Sonepat. He also brought the letter dated 19.03.2012 issued by Senior Branch Manager of Vijaya Bank, New Krishna Nagar Branch, wherein it is mentioned that the relevant records State V/s Sunder Lal etc. (" Convicted") Page 6 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 pertaining to the year 1994 in respect to his savings bank Account had already been destroyed. He proved the said documents as Ex.PW3/DC3 and Ex.PW3/DC4 respectively. He admitted that he was assessed to Income Tax for the last about 12/13 years. He had not shown his property no. 171, Pocket 17, Sector 24, Rohini, Delhi 85 in his Income Tax Returns for the relevant years, however he volunteered that he did not do so as the said property was alloted to him in the year 1991. He did not show the said property even in his ITR for the subsequent period when he got assessed to income tax for the first time. He admitted that he never employed both the accused persons as caretaker in the said property at any point of time. He also admitted that both the accused were tresspassers in his said property. He could not disclose the name of person to whom the work of construction in his said property was awarded as the said work was awarded by Sh. Rajbir Saini, JE, DDA, on his behalf. The building material used to be purchased by the contractor himself but he could not tell the name of the building material supplier. He denied the suggestion that he had awarded the contract for construction of the said property to Sh. Rajbir Saini. He did not know as to whether or not Sh. Rajbir Saini had kept both the accused as caretaker in the said property. He denied the suggestion that he never personally visited the said property from the date of commencement of construction therein till the filing of Writ Petition before Hon'ble High Court of Delhi. He had personally visited the said property more than 20 times during 20032005 but he could not visit the property after the year 2005. He admitted that accused Sunder State V/s Sunder Lal etc. (" Convicted") Page 7 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 Lal had been working as Mason during construction of his said property but he had no knowledge as to whether other accused namely Rani was also working as Mason therein during the relevant period or not. He did not know as to whether both the accused alone had been involved in the construction of the said property or not. He denied the suggestion that he could not tell the name of building contractor and had also not shown the said property in his ITR and had also not produced the relevant passbooks for showing the relevant bank entries as he was not Vinay Kumar Bhagat. He produced his original degree of Law Graduation from University of Delhi, Certificate dated 06.11.1978 issued by Ministry of Industries and Civil Supplies in respect of Prospective Enterprenuour, original identity card issued by District Bar Association, Sonepat bearing his photograph and PAN card issued by Income Tax Department also bearing his photograph thereupon and proved the photocopies of said documents as Ex.PW3/DC5 to Ex.PW3/DC8. He incurred a sum of Rs. 4 Lacs/Rs.5 Lacs in the construction of his said property. He did not have the relevant records regarding withdrawal of the said amount for the construction of the said property. Sh. Rajbir Saini came to his contact in the year 20022003. He stated that Sh. Rajbir Saini never claimed himself to be the contractor. He came to know for the first time in April, 2008 that the accused had tresspassed into his aforesaid property. At that time, he made oral request to both of them for vacating the property and they verbally sought one/two month's time to vacate the same by citing their difficulty on account of marriage of their daughter. He had verbally requested State V/s Sunder Lal etc. (" Convicted") Page 8 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 them three times to vacate the said property. He alongwith other residents and office bearers of RWA concerned which were 10/12 in number, had visited the accused for requesting them to vacate the said property. No Bar members from Sonepat accompanied him for the said purpose. Accused Sunder Lal recognized him as owner of the said property during those visits in the presence of Mr. Sharma, Advocate and Mr. Goel, who was the President of RWA, at that time. He denied the suggestion that one person namely Dharamvir Khatri had also accompanied him during aforesaid visits to the accused. He had lodged complaint at one police station and the police authority had assured him to take appropriate action into the matter, however he did not file any civil suit for possession. He admitted that he had lodged the complaint at PS Begumpur, situated at Sector 24 Rohini, Delhi. He did not remember the contents of his statement which was recorded by the police at that time. Inspector C.L. Meena was the SHO of PS Begumpur. He denied the suggestion that he alongwith 10/12 persons tried to forcibly take possession of the aforesaid property on 31.10.2009. He, however admitted that he was called at the PS Begumpur once but he could tell whether it was on 01.11.2009 or not. He denied the suggestion that Inspector C.L. Meena had called upon him to produce necessary document regarding proof of disbursement of amount to the DDA in respect of the said property or that he was called upon to produce Sh. Rajbir Saini in the PS at that time and thus, there was no occasion for him in not producing Sh. Rajbir Saini or that he could not produce any such document or that the accused had to file the State V/s Sunder Lal etc. (" Convicted") Page 9 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 Petition before Hon'ble High Court of Delhi. He volunteered that no such documents were asked from him. He denied the suggestion that he had not been able to produce any proof regarding disbursement of amount or that he had kept the accused as Masons for the construction of the said property or that in some of the documents, his name has been mentioned as Mr. Vinay alone. However, he admitted that in some of the documents, his name has been mentioned as Vinay Kumar or Vinay Bhagat. He volunteered that sometimes, he did not use his middle name and sometimes he did not use his last surname i.e. Bhagat. He has been showing his name as Vinay Bhagat in his ITR. Upto B.Sc. Leval, he had been using his name as Vinay Kumar and not his Surname but after completing his B.Sc. Degree course, he also started using his complete name by mentioning Vinay Kumar Bhagat. He was around 29/30 years old when he had applied for said property with DDA. He denied the suggestion that the age of the person who had applied for the allotment of the said property was 37 years.
9. PW4 Inspector C.L. Meena deposed that on 01.11.09, he was posted as SHO PS Begum Pur Outer District Delhi. On that day, one DD no. 14A was received in the PS regarding quarrel at Plot no. 171 Pocket17 Sector 24 which was marked to ASI Ved Parkash for inquiry. ASI Ved Parkash alongwith Inspector Sunil Kumar Sharma, Inspector investigation of PS Begum Pur, went to the spot and on their return, they disclosed that the plot in question was allotted to one Vinay Kumar Bhagat resident of Sonipat who had State V/s Sunder Lal etc. (" Convicted") Page 10 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 deputed one Sunder Lal as mason for construction work on the said plot. Sunder Lal had constructed a jhuggi for his temporary residence near the plot. The construction was completed around March 2005. Vinay Kumar Bhagat further disclosed to the said police staff that on his visit in year 2009 after a long time, he saw that accused Sunder Lal with his family had trespassed into the said plot and was residing there. He also verified these facts by visiting the spot in question. Wife of Sunder Lal namely accused Rani was found in possession of the said plot and Sunder Lal was not present in the house at that time. On 08.12.09, Hon'ble Delhi High Court directed him to file status report regarding the said premises. He filed the status report on 11.12.09 before the Hon'ble High Court of Delhi. The original record of Writ Petition no. 1747/09 was produced by Sh Kamesh Saha, LDC RKD Branch, Delhi High Court. He proved the copy of the same as Ex PW4/A. He proved the copy of DD no. 14A and DD no. 30A both dated 01.11.09 pertaining to PS Begum Pur as Ex PW4/B and PW4/C, respectively. This witness correctly identified both the accused persons before the Court.
During cross examination conducted on behalf of the accused persons, he stated that he did not verify the particulars of the caller who had made the call at 100 number. In ordinary cases, IOs also do not verify such particulars. He volunteered that only in heinous offences, such particulars were generally got verified. He admitted that offence of trespassing was cognizable one. On the date of receipt of call, none of the parties was able to produce their title documents in respect of property in dispute and the accused State V/s Sunder Lal etc. (" Convicted") Page 11 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 Sunder Lal was found in physical possession thereof and had also produced documents regarding school admission of his children etc. due to which FIR was not registered at that time. He personally did not verify the title documents in favour of Vinay Bhagat in respect of property in question. He volunteered that IO namely ASI Ved Parkash had verified the same. IO had brought the said fact to his notice. He could not tell as to whether or not Vinay Bhagat never gave any written complaint to him. He denied the suggestion that Vinay Bhagat alongwith a large number of persons had visited PS Begum Pur on 01.11.09. Vinay Bhagat had visited him in PS Begum Pur after one/two days of 01.11.09. He did not remember as to whether on 01.11.09, he had received any call from the counsel of accused Sunder Lal who had requested him to verify the antecedents of disbursement of amount made by Vinay Bhagat to DDA by making inquiry from bank account of Vinay Bhagat. He volunteered that incident related to three years ago. He admitted that he personally did not verify the bank accounts of Vinay Bhagat. He denied the suggestion that status report Ex PW4/A was quite vague or that same was filed by him without making the complete inquiry or without actually verifying the complete facts. Vinay Kumar Bhagat alone had visited him once or twice in PS Begum Pur. He did not personally went to the spot on 01.11.09 after receipt of PCR call and that is why, he could not state as to whether there were 15 persons present over there. He denied the suggestion that mob of said 15 persons had visited PS Begum Pur on 01.11.09. He was on duty on that day. Departure entries were duly made on 01.11.09 in respect of his departure from State V/s Sunder Lal etc. (" Convicted") Page 12 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 PS to some place. He had not brought the relevant DD register containing those entries as the said register might be available in PS Begum Pur and he had already been transferred out from there. He denied the suggestion that he was deliberately not disclosing the fact to the Court that he had telephonic conversation with the counsel of accused Sunder Lal on his mobile no. 9212012466 and he was present in PS Begum Pur or that there were 15 persons present in PS or that said persons had told him that they were ready to give a sum of Rs. 23 lacs to accused persons for vacating the property in question, at that time on 01.11.09. He personally did not make any inquiry from the office of DDA. He admitted that one written complaint Ex PW2/E was filed in PS Begum Pur by the accused persons. He had gone through the contents of said written complaint. He admitted the fact that the inquiry was conducted by ASI Ved Parkash. He volunteered that he had verified the facts mentioned in the status report Ex PW4/A before filing it in Hon'ble High Court of Delhi. He had personally visited the property in question after one/two days of 01.11.09. He did not remember the colour of white wash which was there in the said property at that time. There were two floors in existence at that time. Same were in semi built up condition. Some portion of the property was having plaster whereas the other part of the property was without plaster. He did not remember as to whether there was pucca flooring in the said property at that time or not. He could not tell without verifying the record as to whether or not Vinay Kumar Bhagat had given any written complaint in PS Begum Pur prior to 31.10.09. He denied the suggestion that State V/s Sunder Lal etc. (" Convicted") Page 13 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 he had received the telephone call from the counsel of accused Sunder Lal on 01.11.09. He further denied the suggestion that 45 police officials had pressurized the accused persons to accept the money being offered to them or threatened them to face dire consequences in the event of refusing to do so, in his presence or asked them to vacate the property in question on 01.11.09 or that he had deposed falsely as he was in connivance with Vinay Kumar Bhagat or that he wanted to favour Vinay Kumar Bhagat in this case.
10. Accused produced three witnesses in support of his defense.
11. DW1 Sh. Sanjay Kumar deposed that at the relevant time, he was working as a contractor. The contract for raising construction upon plot no. 171, Pocket17, Sector24, Rohini was awarded to him somewhere in the end of year 2001 by one official namely Mr. Saini of DDA against written contract. He had signed on the said written contract besides one more person whose name he did not remember however he used to call him uncle. The said person was instrumental in getting the said contract awarded to him. The said contract was not awarded to him by any person with the name of Vinay Bhagat. The entire building material used in raising construction on the aforesaid plot, was provided by aforesaid Mr. Saini. He did not know any person with the name of Vinay Bhagat. The payment against the aforesaid contract, was made to him by aforesaid Mr. Saini. The construction was commenced in the year year 2001 and same was completed by him State V/s Sunder Lal etc. (" Convicted") Page 14 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 somewhere in the month of OctoberNovember 2003. Both the accused persons namely Sunder Lal and Rani were in actual possession of the aforesaid plot and they continued to be there even during the period when property was under construction in the form of jhuggi and after completion of construction, he had handed over the physical possession to the accused persons. During the period of construction, he had been paying salary @ Rs. 2000/ per month to the accused for chowkidari purposes. He did not hand over keys to any person after completion of construction as there was no occasion for doing so since the premises was lying opened and both the accused were already in its possession. Mr Saini had told him that contract to raise construction upon the aforesaid plot, was awarded to him (Mr. Saini) and the real owner was some other person who was never introduced or shown to him by Mr. Saini.
During cross examination conducted by Ld. APP on behalf of the State, he stated that he had not brought any document in support of his identity. However, he volunteered that he had brought NCR number 178/13 lodged with PS Vijay Vihar. The copy of said NCR was taken on record and exhibited as Ex DW1/P1. He admitted the fact that he was not a summoned witness and had come to the Court on the request of the accused persons. He had not brought the written contract which was signed by him as stated above as the said written contract was retained by Mr. Saini with him at the time of its execution and even copy thereof was not provided to him. He did not raise any construction in any other building or plot except the aforesaid plot. He State V/s Sunder Lal etc. (" Convicted") Page 15 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 admitted the fact that he had no work experience for raising construction on a plot of land. He denied the suggestion that he had never raised any construction on any plot whatsoever during his life time. He himself and his uncle alone had signed the written contract at that time. Mr. Saini did not sign the said contract at all. He denied the suggestion that he was not able to produce the said written contract or even copy thereof and Mr. Saini did not sign the contract as no such contract was ever executed as stated above. He was running TSR for the last about 67 years. Prior to that, he was having a small shop of cosmetic items at Budh Vihar till 20032004. At the time of starting work of construction, he was maintaining the said shop. His mother was sitting on the said shop during the period of construction. He had engaged 56 labours for the construction work. He had employed the accused Sunder Lal as Mistri(Mason) and accused Rani worked as labourer. He used to pay salary to all the labourers employed at the site. He was not maintaining any record of payment of salary. He was maintaining a small note book for keeping record of the labours but he could not produce the same before the Court as it was not available with him. He denied the suggestion that no such contract for raising construction on the above said plot, was awarded to him or that he did not raise any construction on the said plot or due to that reason, he was not in a position to produce any document including the note book in this regard. He was awarded the contract @ Rs. 50/ per sq. feet as labour charges for the purpose of raising construction in the form of raising super structure with the help of bricks and the plaster work thereof. The terms of payment State V/s Sunder Lal etc. (" Convicted") Page 16 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 were mentioned in the written contract itself. He denied the suggestion that he had not retained copy of the said contract despite mentioning the terms of payment as no such contract had taken place. He used to mention the part payments made by him to the labourers, in his aforesaid note book. He did not remember the exact amount which was received by him from Mr. Saini against the contract. He also did not remember the amount paid by him to the labourers. No document was executed between him and Mr. Saini at the time of full and final settlement of the account. He had not given any receipt in writing to Mr. Saini on receipt of the payments from him from time to time as stated above. All the labourers except accused persons were not staying at the premises under construction. Both the accused persons were allowed to stay in the aforesaid premises by him. Accused persons were not knowing Mr. Saini directly. After completion of construction in the aforesaid plot, he did not give any permission to the accused persons to stay in possession of the same. He was making payment to the accused persons for their labour work in addition to salary of Rs. 2000/ per month for Chowkidari. After completion of the contract, he did not visit the place in question and had no concern with the same. He denied the suggestion that he had made the statement in the Court as tutored by the accused persons.
12. DW2 Sh. Rajbir Saini deposed that he knew the person namely Sh. Vinay Bhagat who was resident of Sonepat (Haryana). He was aware that Sh. Vinay Bhagat was allotted plot no. 171, Pocket17, Sector24, Rohini, Delhi by State V/s Sunder Lal etc. (" Convicted") Page 17 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 DDA. There was no contract for raising construction on the said plot, between him and Sh. Vinay Bhagat. He volunteered that he used to go to the said plot for the purpose of supervision at the time of construction. He also knew Sh. Sanjay as he was raising construction in the said property. On the request of Sh Vinay Bhagat, he had got engaged Sh. Sanjay for raising construction in the said property. Although, he used to visit the site for the purpose of supervision but the construction was not completed by the time when he stopped going there. The super structure up to two story had already been erected by that time. No finishing work was done in the said property till that time. After receiving the payment from Sh Vinay Bhagat, he used to pay the amount to said Sh. Sanjay on behalf of Sh Vinay Bhagat. He did not remember the exact date, month and year when he lastly visited the said site. However, it was about 1012 years ago. Sh Sanjay did not hand over key of the said property to him after completion of construction. He knew Sunder Lal as he was working as Chowkidar at the time of raising construction in the said property during the relevant period. However, he did not knew the lady present in the Court.
During cross examination conducted by Ld. APP on behalf of the State, he stated that he had helped Sh. Vinay Bhagat in raising construction on the given premises.
13. DW3 Sh. Ashok Jangid produced the record file bearing no. F25(1604)91 maintained at LAB Rohini Delhi. He stated that Flat no. 171, State V/s Sunder Lal etc. (" Convicted") Page 18 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 Pocket17, Sector 24 Rohini was allotted to Sh. Vinay Bhagat S/o Sh Jai Chand on 14.10.1993 and the physical possession was handed over to him on 14th March 1996. The perpetual lease in favour of Sh. Vinay Bhagat and Smt. Meenu Bhagat was executed on 04th March 1998. Application no. 96724 for registration of MIG plot was made by Sh Vinay Bhagat on 31st March 1981. During the process of issuance of possession letter and issuance of perpetual lease deed, copy of ration card and copy of election card were submitted in the record by the applicant. The copy of ration card on record was in name of Sh. Jai Chand S/o Sh Jeewan Dass and showed name of his son Vinay and daughter in law Smt. Meenu at serial no. 3 and 4 of the description of family of Sh Jai Chand. The copy of election I card placed on record was in name of Vinay Kumar S/o Sh Jai Chand. The lessee Sh. Vinay Bhagat had filed on record many affidavits from time to time as per requirement wherein he had shown his name as Vinay Bhagat S/o Sh Jai Chand. He had submitted his photograph as well as photograph of Menu Bhagat in the records. There was no requirement that a person has to be resident of Delhi for last three years for applying under Rohini Residential Scheme 1981. There was no document which shows Delhi address of Sh. Vinay Bhagat during the period of applying for the plot and execution of lease deed. The premium amount for the plot was Rs. 94,782.60/. He could not tell about the mode of payment received from allottee of the plot by the DDA. However, the payment was made by allottee in several installments from time to time. Copies of relevant challans were Ex. DW3/A collectively.
State V/s Sunder Lal etc. (" Convicted") Page 19 of 29
Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 During cross examination conducted by Ld. APP on behalf of the State, he stated that the office copy of the Perpetual Lease (unregistered) was on record brought by him and photocopy of lease deed of allottee which was contained in the judicial file, were same. The said photocopied document was Ex. DW3/PA which contains the photographs of both the lessees and contains the site plan. He admitted the fact that record produced by him also contained carbon copy (office copy) of letter dated 09.01.03 regarding extension of time for completion of construction of the plot in question and the same was Ex. DW3/PB. As per record, Sh. Vinay Bhagat and Smt. Meenu Bhagat had applied for conversion of the said property as free hold on 21.11.12 containing the photographs of both the lessees as well as indemnity bond and two undertakings. There was another affidavit of Sh. Vinay Bhagat on record regarding the said conversion. Copy of the same was Ex. DW3/PC collectively. The copy of house tax receipt dated 19.11.12 Ex.PW3/PD in name of Vinay Bhagat/Meenu Bhagat was also placed on record by the allottee. As per record, their official had visited the site three times i.e on 24.01.13, 18.03.13 and 18.04.13 but the premises were found locked. He admitted the fact that the photograph appearing on the copy of Election ID Card in name of Sh Vinay Kumar and the photograph appearing on the lease deed available in the record of DDA, were of one and the same person i.e Sh. Vinay Bhagat/Sh.Vinay Kumar.
Arguments advanced and case law relied upon :
14. As already discussed above, accused persons have been charged State V/s Sunder Lal etc. (" Convicted") Page 20 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 with offence U/s 193 IPC on the allegations that they sworn false affidavits with regard to identity of owner of property no. 171, Pocket17, Sector24, Rohini, Delhi and also made false statement on oath in Writ Petition no.
1747/09 titled as " Sunder Lal & Anr Vs. The State , NCT & Ors" before Hon'ble High Court of Delhi on 11.12.09 knowing the said statements to be false and/ or believing the said statements to be false.
15. Now, it has to be examined as to whether prosecution has been able to bring home guilt of accused persons beyond reasonable doubt. It goes without saying that for the purpose of establishing the offence U/s 193 IPC, the complainant was required to prove that the accused persons intentionally gave false evidence in judicial proceedings or fabricated false affidavits for the purpose of being used in judicial proceedings.
16. While referring to the testimonies of prosecution witnesses examined during trial and the documents proved on record, it has been argued by Ld APP that both the accused persons filed false affidavits dt. 04.12.09 in support of Writ Petition(Criminal) No. 1747/09 which is Ex PW2/B(Colly.). She also referred to the statements made by both the accused persons in aforesaid Writ Petition, on 11.12.09 before Hon'ble High Court of Delhi. Said statements have been filed as AnnexureF alongwith Criminal complaint U/s 340 read with Section 195 and 196 Cr.PC. The said complaint alongwith its annexures including the statements dt. 11.12.09, have been proved as Ex State V/s Sunder Lal etc. (" Convicted") Page 21 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 PW1/A(colly.). Ld APP also referred to the certified copy of aforesaid Writ Petition Ex PW2/B as well as the certified copy of judgment dt. 22.12.09 Ex PW2/A passed by Hon'ble High Court of Delhi in the aforesaid Writ Petition. She also referred to the testimonies of PW1 and PW2 who have proved the aforesaid documents on record. She also relied upon the testimony of PW3 as well as the documents proved by him on record, in support of her contention that PW3 namely Sh. Vinay Kumar Bhagat is the actual owner of the property in question but still both the accused herein, made false averments in the Writ Petition as well as in their respective affidavits filed in support of the said petition filed before Hon'ble High Court of Delhi. Not only this, they also made false statements on oath before Hon'ble High Court of Delhi on 11.12.09 thereby disputing the identity of Sh. Vinay Kumar Bhagat.
17. Per contra, Ld defence counsel argued that complainant has failed to establish the offence against the accused persons beyond shadow of doubt. He submitted that the testimony of PW3 namely Sh. Vinay Kumar Bhagat does not inspire confidence as he failed to produce any record showing the mode of payments made by him in respect of property in question. He also submitted that the statements made by accused persons on 11.12.09 before Hon'ble High Court of Delhi, do not amount to perjury within the meaning of Section 191 IPC. He also argued that PW3 is an Advocate by profession and it is not quite believable that the accused persons who are quite illiterate, would have courage to stand in front of him. He also referred to the relevant State V/s Sunder Lal etc. (" Convicted") Page 22 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 portion of the cross examination of PW3 conducted on 04.08.12 wherein, witness admitted that he did not show the said property in his income tax return, in support of his contention that PW3 is not actual owner of property in question. Thus, there is no perjury as such on the part of accused persons. Ld defence counsel also contended that PW3 namely Sh Vinay Kumar Bhagat deposed contrary to his own statement Ex PW3/A made before Hon'ble High Court of Delhi in the aforesaid Writ Petition, during trial of the present case and also failed to produce any document showing that he is the actual owner of property. Ld defence counsel also referred to the testimonies of DW1 namely Sh. Sanjay and DW2 namely Sh Rajbir Saini as examined by the accused persons in their defence.
18. It would not be out of place to mention here that the testimonies of PW1 and PW2 have gone unrebutted from the side of accused persons who have not challenged either the factum of filing of criminal complaint or the authenticity of the documents filed as its Annexures Ex PW1/A(Colly.) as well as the certified copy of Criminal Writ Petition Ex PW2/B proved by those two witnesses. It is well settled law that the relevant part of the testimony of witness which is not disputed by opposite side during cross examination, amounts to admission thereof on the part of such party.
19. I have gone through the contents of certified copy of aforesaid Criminal Writ Petition Ex PW2/B as well as the supporting affidavits filed by State V/s Sunder Lal etc. (" Convicted") Page 23 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 both the accused persons herein. In para5 of the said Writ Petition, both the accused herein claimed that they were appointed as watch man and care taker by Mr. Vinay Bhagat who is the owner of said property, in the year 1995. In para7 of the Writ Petition, the accused claimed to have acquired ownership of the said property due to their long and continuous possession therein for the last more than 14 years, by way of adverse possession. Not only this, they affirmed the contents of the said Writ Petition to be true and correct and also made them part of their affidavits as per para2 of their respective affidavits. In other words, both accused affirmed each and every content made in the aforesaid criminal Writ Petition as part of their respective affidavits by virtue of para2 thereof which is reproduced as under: "xxxxxxxx
2. That the accompanying Writ Petition Under Article 226 of the Constitution of India, read with Section 482 Cr.PC, has been drafted under my instructions and the contents of the same have been read over and explained to him in vernacular language known to him and admitted by him to be true and correct and be read as an integral part of this affidavit as the same has not been repeated for the sake of brevity.
Xxxxxxx"
20. Likewise, it has not been disputed by both the accused that they made statements on oath on 11.12.09 in the aforesaid Criminal Writ Petition before Hon'ble High Court of Delhi. In the said statements, both the accused stated on oath that Mr. Vinay Bhagat who is the actual owner of the property State V/s Sunder Lal etc. (" Convicted") Page 24 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 in question, must be about 6065 years of age about 14 years back when they were engaged in the construction work to be carried out in the said property. Not only this, they further stated on oath in their respective statements that the person who has represented himself as Vinay Bhagat, is infact, not Mr. Vinay Bhagat. In other words, both the accused claimed in their respective statements that Sh. Vinay Bhagat who is the actual owner of the property in question, must be aged about 7479 years of age as on 11.12.09 when they made those statements before Hon'ble High Court of Delhi. However, PW3 Sh Vinay Kumar Bhagat testified during cross examination recorded on 04.08.12 that he was aged around 2930 years old when he applied for the property in question with DDA. It has come on record during cross examination of the same witness recorded on 03.03.12 that the property in question was applied by him with DDA in the year 1981. In this manner, his age comes out to be 38 years in the year 2009. In case, Court comes to the conclusion that PW3 is shown to be the actual registered owner of property in question then the relevant portion of the statements made on oath by both the accused on 11.12.09 that Sh. Vinay Bhagat was aged about 6065 years in the year 1995, become false.
21. PW3 produced certified copy of his Voter I Card and Passport(Ex PW3/B Colly.), certified copy his Enrollment Certificate with Bar Council of Punjab & Haryana(PW3/C), copy of his Ration Card(Ex PW3/DB) showing his residential address as 12B, Jiwan Nagar, Sonepat, bank challans(Ex PW3/DC1 and Ex PW3/DC2) regarding payment made in cash with the State V/s Sunder Lal etc. (" Convicted") Page 25 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 DDA against property in person, photocopies of his degree of law graduation, copy of certificate dt. 06.11.78 purportedly issued by Ministry of Industries and Civil Supplies, copy of I card issued by District Bar Association, Sonepat bearing his photograph and copy of PAN Card also bearing his photograph (Ex PW3/DC5) to Ex PW3/DC8) during his statement recorded before the Court.
22. It is also important to note that accused had summoned the relevant record i.e file bearing no. F25(1604)91 of the office of DDA pertaining to property in question as produced by DW3 namely Sh. Ashok Jangid, Assistant Director,DDA. The said witness deposed in categorical terms that the property in question was allotted to Sh. Vinay Bhagat on 14.10.93 and its physical possession was handed over to him on 14.03.96. He also clarified that perpetual lease was executed on 04.03.98. Not only this, he also explained that copy of Ration Card and copy of Election I Card were submitted in the office of DDA by the applicant. He also referred to various affidavits filed by lessee Sh Vinay Bhagat in the office of DDA from time to time showing his name as Sh Vinay Bhagat S/o Sh. Jai Chand. He also referred to the photograph of Sh Vinay Bhagat as submitted in the record of DDA by the lessee. During his cross examination, complainant got the photocopy of lease deed Ex DW3/PA bearing photograph of the lessee, as available in record of DDA placed on record. The complainant also got the affidavit (Ex DW3/PC Colly.)of Sh Vinay Bhagat regarding conversion of property in question as free hold, Indemnity bond and two undertakings bearing photograph of the State V/s Sunder Lal etc. (" Convicted") Page 26 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 lessee as available in the record of DDA, placed on record during cross examination of the said witness. Not only this, DW3 who is noneelse but the witness examined by accused persons, admitted during his cross examination that photograph appearing on the copy of Election I Card in the name of Sh. Vinay Kumar and the photograph appearing on the lease deed available in the record of DDA, are of one and the same person i.e Sh. Vinay Bhagat @ Sh. Vinay Kumar.
23. It is quite evident from the aforesaid discussion that PW3 namely Sh. Vinay Kumar @ Vinay Bhagat produced photocopy of Voter I Card issued in the name of Vinay Kumar S/o Sh Jai Chand as well as the photocopy of his passport issued in the name of Vinay Kumar Bhagat which are proved as Ex PW3/B colly during his statement. The officer of DDA, who has been examined from the side of accused persons as DW3, also produced copy of perpetual lease deed in respect of property in question in favour of Sh. Vinay Bhagat S/o Sh Jai Chand and Smt. Meenu Bhagat W/o Sh. Vinay Bhagat which has been proved as DW3/PA. All the said three documents bear the photograph of said Sh. Vinay Kumar @ Vinay Bhagat @ Vinay Kumar Bhagat. The comparison of the photographs appearing on all the said three documents clearly reveals that they are of one and the same person. In fact, this fact has also been admitted by DW3 during his cross examination when he was confronted with the photograph appearing on copy of Election I Card issued in the name of Sh Vinay Kumar and the photograph appearing on the lease deed available in the record of DDA. Not only this, the photograph of State V/s Sunder Lal etc. (" Convicted") Page 27 of 29 Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013 PW3 as appearing on ICard issued by District Bar Association, Sonepat as well as on copy of PAN Card Ex PW3/DC7 and PW3/DC8 is also similar to that of his photograph appearing on copy of lease deed Ex DW3/PA. Thus, there is no scope of any doubt that the property in question had been allotted to PW3 namely Sh. Vinay Kumar Bhagat and his wife as per record of DDA.
24. There is no substance in the arguments advanced on behalf of accused that the testimony of PW3 does not inspire confidence merely because he did not show the property in question in his income tax return or that accused persons being illiterate, could not have gathered courage to dispute the title of said witness or even on the ground that the said witness failed to produce any record about the mode of payments through which the amount was deposited with DDA. All these factors are extraneous for the purpose of present proceedings where Court has to see as to whether the accused persons have committed perjury by making false statements on oath and /or filing false affidavits during the course of judicial proceedings. It goes without saying that both the accused were legally bound by an oath to state the truth in their respective statements made on 11.12.2009 in the aforesaid Writ Petition pending before Hon'ble High Court of Delhi. Hence, there is no substance in the argument advanced on behalf of accused that there act in making false statement on oath before Hon'ble High Court of Delhi, do not amount to perjury within the meaning of Section 195 IPC. There is nothing on record which may persuade the Court to discard the testimony of PW3 or to disbelieve his statement recorded during trial.
State V/s Sunder Lal etc. (" Convicted") Page 28 of 29
Case No.4/1: PS Tilak Marg : U/s 195 IPC DOD: 30.10.2013
25. As already discussed above, both the accused persons namely Sunder Lal and Rani filed false affidavits in support of Writ Petition(Criminal) No. 1747/09 with regard to identity of owner of property in question. Not only this, they also made false statements on oath on 11.12.09 that PW3 who was present before Hon'ble High Court of Delhi, was not the actual owner of the said property. Their said affidavits as well as the statements made on oath before Hon'ble High Court of Delhi, are found to be false and it is quite apparent that the accused had filed those affidavits and made false statements on oath during the course of proceedings pending before Hon'ble High Court of Delhi with full knowledge that they were false. Thus, Court is of the view that prosecution has been able to bring home the guilt of both the accused in respect of offence U/s 193 IPC beyond reasonable doubt. Consequently, both the accused namely Sunder Lal and Rani stand convicted for the said offence.
Announced in the open Court (Vidya Prakash)
on 30.10.2013 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Sunder Lal etc. (" Convicted") Page 29 of 29