Delhi District Court
State vs . Hoor Jamal, Etc. on 24 September, 2018
IN THE COURT OF MS SHEFALI BARNALA TANDON, MM-6 (C), TIS
HAZARI COURT, DELHI.
FIR No. 434/1999
U/s. : 420/34 IPC
P.S. : Sadar Bazar
State Vs. Hoor Jamal, etc.
JUDGMENT
1. CIS number of the case : 291591-2016
2. CNR number of the case : DLCT02-000071-1999
3. The date of commission of offence : 15.12.1998 or before
4. The name of the complainant : Mohd. Shamim
5. The name & parentage of accused : (1) Hoor Jamal W/o Abdul
Khalid R/o H.No.598,
Gali Juttey Wali,
Churiwalan, Delhi.
(2) Suraiya Jamal W/o Sher
Mohd. R/o H.No.F-117D,
Jawahar Park, Lakshmi
Nagar, Delhi.
At present F-31, Third
Floor, Jawahar Park,
Shakapur, Shahdara,
Delhi.
(3) Aman Jamal W/o Mohd.
Mian R/o H.No.2742,
Gali Nanhe Khan,
Daryaganj, Delhi.
FIR No.434/1999 State Vs. Hoor Jamal, etc. 1 of 14
PS Sadar Bazar
At present H.No.3874,
Churiwalan, Delhi.
(4) Shahida Jamal W/o
Late Mohd. Fazil R/o
H.No.27, J. Extension,
Gali No.8, Lakshmi
Nagar, Delhi.
(5) Mahir Raza S/o Abid
Raza R/o H.No.
8165/ 8166, Second
Floor, Chimney Mill,
Bara Hindu Rao,
Delhi-06.
6. Offence under which charge has : 420/120B IPC
been framed
7. The plea of accused : Pleaded not guilty
8. Final order : All accused persons are
acquitted of charge
U/s 420/120B IPC
Date of Institution : 09.03.2001
Judgment reserved on : 22.09.2018
Judgment announced on : 24.09.2018
STATEMENT OF THE REASONS FOR THE DECISION :-
1. Briefly stated, the facts of the case as unfolded from the charge-sheet are that all accused persons in furtherance of criminal FIR No.434/1999 State Vs. Hoor Jamal, etc. 2 of 14 PS Sadar Bazar conspiracy agreed to make addition/ illegal construction in property mentioned in complaint and also to give the same on rent illegally despite the fact that all accused persons knew that the said property has already been transferred to the complainant Mohd. Shamim by way of gift deed. In pursuance to their criminal conspiracy, all accused persons executed an agreement dated 15.12.1998 in favour of co-accused Mahir Raza with intention to cheat the tenants and complainant. Furthermore, all accused persons dishonestly induced the tenants of the said shop/ property, belonging to the complainant by telling them that co-accused Mahir Raza was appointed by them to collect the rent on their behalf and thereafter, all accused persons received the rent in respect of the said shop and thereby all accused persons cheated the tenants & complainant. Thus, all accused persons alleged to have committed an offence punishable u/s. 420/34 IPC and accordingly, charge-sheet was filed.
2. The copy of charge-sheet as well as its annexures were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and charge under section 420/120B IPC was framed against all five accused persons namely Hoor Jamal, Suraiya Jamal, Aman Jamal, Shahida Jamal and Mahir Raza by the Ld. Predecessor of the Court vide order dated 26.07.2005, to which they pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the FIR No.434/1999 State Vs. Hoor Jamal, etc. 3 of 14 PS Sadar Bazar accusation against the accused by leading evidence and it examined 7 witnesses. Relevant portion of testimony of witnesses is discussed hereinafter.
4. The complainant Mohd. Shamim was examined as PW-4 and deposed that they are three brothers and four sisters, however, his both brothers have already expired. His father owned number of properties at Churiwalan, Gandhi Market and Rui Mandi at Sadar Bazar, Delhi. On 29.04.1981, his father appointed Mr. Gopal Chand Bhatia as thekedar for collecting rent from his shops/ properties at Sadar Bazar, Delhi, however, during his lifetime his father terminate the aforesaid agreement on 31.12.1983 vide legal notice. Further, vide GPA dated 31.12.1983 which is marked as Mark-A, his father authorized him for collecting rent from the shops at Gandhi Market and Rui Mandi at Sadar Bazar, Delhi. On 11.01.1983, his father executed a will in his favour which as registered on 14.01.1983 which is marked as Mark-A1. On 13.02.1984, his father executed a registered gift deed in his favour for property bearing No.5620 to 5628 and 5647 to 5654, Gandhi Market, Sadar Bazar, Delhi. The certified copy of gift deed is exhibited as Ex.PW4/A. However, all four accused persons i.e. his sisters appointed Mr. Gopal Chand Bhatia to collect rent vide agreement dated 28.05.1997 marked as Mark-D wherein they showed themselves as owner of property in question though, the said property was already transferred to him vide will & registered gift deed, about which all the four accused persons were aware. Thereafter, they FIR No.434/1999 State Vs. Hoor Jamal, etc. 4 of 14 PS Sadar Bazar appointed accused Mahir Raza to collect rent vide agreement marked as Mark-B and all accused persons constructed floors on the aforesaid properties belonging to him and let out the same on rent to various persons. On 16.06.1998, the contractor/ accused Mahir Raza issued a receipt No.198 to one person namely Raghubir Singh and the copy of the same is marked as Mark-C. Accused Hoor Jamal, Suraiya Jamal, Aman Jamal and Shahida also issued rent receipts in Urdu and English showing themselves as owner of Shop No.5622 and these receipts were recovered by the IO. He further deposed that in the year 1986, a civil suit was filed by his four sisters i.e. accused in the present matter regarding the gift deed made in his favour by their father. Certified copy of the same is proved as Ex.PW4/B and pursuant to the said order, he collected rents from the disputed properties. On 15.12.1998, a legal notice was issued by accused persons to the tenant regarding information of their annulment of agreement with Mr. Gopal Bhatia and appointing accused Mahir Raza for collection of rent. The rent receipt No.103 issued by accused Mahir Raza is marked as Mark-E. He proved the complaint on record as Ex.PW4/C and further deposed that accused persons entered into criminal conspiracy and cheated him of huge amount by collecting rent from the shops under his ownership, for which they had no authority.
During his cross-examination, he admitted that vide judgment dated 26.10.2013 of the court of Sh. V.K.Bansal, the respective shares in the property in question were given to accused Hoor Jamal, Aman, Shahida and Suraiya. However, he voluntarily stated that he has FIR No.434/1999 State Vs. Hoor Jamal, etc. 5 of 14 PS Sadar Bazar challenged the said order in appeal before the Hon'ble High Court of Delhi. Further, he admitted that in the legal notice given to Sh. Gopal Chand Bhatia, it was mentioned that he is allowing the tenants of properties to construct illegally on the aforesaid properties without permission and consent of Mohd.Yunus, father of complainant. He also admitted that qua the property bearing No.5622, Sadar Bazar, Delhi, he filed civil case against Aman and Suraiya, however, the same was decided in their favour. He failed to tell the date, month or year when the said alleged illegal construction was raised by accused Mahir Raza. He also failed to remember the date of making complaint to concerned MCD Office for the said illegal construction.
5. In order to substantiate the allegations of complainant, PW-1 Sh. R.S. Sehrawat proved the record pertaining to will executed by the Testator in Urdu by bringing the original record in additional book No.3 containing document No.93, volume No.231 on page 60 & 61, registered on 14.01.1983, from office of Sub-Registrar-3, Asaf Ali Road as Ex.PW1/A and PW1/B respectively.
6. PW-2 Sh. S.S. Panwar proved the record pertaining to gift deed in additional book No.1 at Sr. No.552 Volume No.4285 on page No.192 to 196 registered on 17.09.1984 executed by Sheikh Mohd. Yunus in favour of Mohd. Shamim by bringing the original record from the office of Sub-registrar-I, Kashmere Gate, Delhi and the copy of the said deed as FIR No.434/1999 State Vs. Hoor Jamal, etc. 6 of 14 PS Sadar Bazar P2/A and true copy photocopy of the gift deed in question as Ex.P2/B, P2/C, P2/D, P2/E & P2/F respectively.
7. PW-3 HC Ramesh Kumar took the exhibits handed over to him by SI Ved Prakash vide road certificate No.180/21 to FSL, Malviya Nagar, however, the said record was returned and handed over to SI Ved Prakash as it was returned by the dealing clerk of Malviya Nagar. As long as the said exhibits remained in possession of PW-3 they were not tempered with.
8. PW-5 Inspector Ved Prakash (Investigating Officer) deposed that on 06.05.2000, the investigation of the present case was entrusted to him for further investigation. During the course of investigation, he formally arrested the accused persons namely Hoor Jamal, Suraiya Jamal, Aman Jamal, Shahida Jamal and Mahir Raza vide arrest memo Ex.PW-5/B, Ex.PW5/C, Ex.PW5/D, Ex.PW5/E and Ex.PW5/F respectively. That on 11.10.2000, specimen handwriting of accused Mahir Raza were taken and exhibited as PW5/S1 to PW5/S3 respectively. On 25.10.2000, rent receipt No.198 for one of the shop in dispute, issued by accused Mahir Raza in favour of Raghubir Singh was seized vide seizure memo proved as Ex.PW5/A and receipt already marked as Mark-C. He further deposed that on 02.11.2000, attested true copy of will deed and gift deed, which were taken from Sub-registrar Office already marked as Mark- A1 (in Urdu Script) and Ex.PW4/A respectively. On 06.11.2000, exhibits FIR No.434/1999 State Vs. Hoor Jamal, etc. 7 of 14 PS Sadar Bazar were sent to FSL, Malviya Nagar for examination. Thereafter, after examining the witnesses and completion of investigation, he prepared the charge-sheet and filed the same before the concerned Court.
During his cross-examination, he stated that the rent receipt already marked as Mark-C is a photocopy. He further stated that he did not investigate the matter about distribution of shares amongst the legal heirs of deceased father of complainant.
9. PW-6 Retired SI Chetan Swaroop deposed that on 24.12.1999, he was posted as ASI at PS Sadar Bazar. He registered the case in the present matter by the order of the court in the application of the complainant Mohd Shamim U/s 156(3) Cr.PC and his endorsement on complaint already proved as Ex.PW4/C then Exhibited as 6/A bearing his signature at point X. He interrogated accused persons namely Hoor Jamal, Suraiya Jamal, Aman Jamal, Shahida Jamal & Mahir Raza and on 02.01.2001, he seized the deed of the agreement dated 15.12.1998 entered in favour of accused Mahir Raza for property bearing No.5153 to 5654C, Gandhi Market, Sadar Bazar, Delhi vide seizure memo proved as Ex.PW6/B, the copy of the said agreement already proved as Ex.PW4/A. The said property was under the care of the Gopal Chand Bhatia, however, as he was in coma at that time, thus, notice u/s. 91 Cr.PC was given to his son Amit Bhatia for providing the agreements prior to above said agreements. On 16.02.2000, Amit Bhatia provided the five deed of agreements of the abovesaid property dated 29.09.1986, 09.12.1987, FIR No.434/1999 State Vs. Hoor Jamal, etc. 8 of 14 PS Sadar Bazar 17.05.1990, 23.06.1992, and 14.06.1997 vide which Gopal Chand Bhatia was appointed as Rent Collector by the above said sisters. He seized those agreements vide memo proved as Ex.PW6/C. He further served a notice u/s. 91 CrPC, which was given to Amit Bhatia S/o Sh Gopal Chand Bhatia for providing the Rent Receipts for above said property. Amit Bhatia provided him said receipts books containing receipt No.1 to 500 wherein from Sr. No.1 to 300, all the receipts were used while from Sr. No 301 to 350 two receipts were used, from receipts No.351 to 450 all the receipts were unused, from Receipts No.451 to 500, 25 receipts were used. These receipts were in the possession of the Gopal Chand Bhatia, who used to issue the receipts on behalf of the above said sisters. The said receipts were seized vide seizure memo proved as Ex.PW6/D. He also seized one rent receipts book from accused Mahir Raza from receipt No.201 to 300 wherein 80 receipts were used and 20 receipts were unused. The said book proved as Ex.PW6/A1. He seized the same vide memo proved as Ex.PW6/E. He also seized the copy of Civil Suit No. 876/86 between complainant and accused except Mahir Raza, the copy of which was provided by accused Shahida Jamal and he seized the same vide memo proved as Ex.PW6/F. The copy of the said suit already proved as Ex.PW4/B. Thereafter, he went on leave and the present matter was transferred to SI Ved Prakash for further investigation.
During his examination, identity of all accused persons were not disputed by the defence.
During his cross-examination, he stated that he did not inquire FIR No.434/1999 State Vs. Hoor Jamal, etc. 9 of 14 PS Sadar Bazar about ownership of property in question from any public or any independent person, hoewver, he recorded statement of Sh. Raghubir Singh on fact of payment of rent to accused Mahir Raza.
10. PW-7 Inspector Sanjay Bhardwaj deposed that in the year 2000, he was posted as SI at PS Sadar Bazar. On the directions of the SHO, PS Sadar Bazar, he perused the case file and as per record, it was found that the documents could not be collected from accused Gopal Chand Bhatia due to his illness and he was unable to speak. He also found that he was not examined during investigation and the FSL form was already sent to FSL for examination.
11. It is pertinent to mention here that all accused persons admitted the genuineness of the present FIR No.434/1999, PS Civil Lines, endorsement on rukka and FSL report No.2000/D-2612 dated 28.05.2001 during their statement recorded u/s. 294 Cr.PC qua admission/ denial of documents recorded on 06.08.2018. Hence, PWs Duty Officer Yug Bandhu and Sr. Scientific Officer Harshvardhan were dropped from the list of witnesses.
Thereafter, prosecution evidence was closed.
12. Statement of all accused persons u/s. 313 Cr.P.C. was recorded separately and all the incriminating evidence coming on record was put to them, however, they denied the allegations in general and stated that they appointed Mahir Raza only to receive rent of their share in FIR No.434/1999 State Vs. Hoor Jamal, etc. 10 of 14 PS Sadar Bazar the property left by their father. The gift deed and will, etc. were forged and not as per Muslim Law. They further stated that they were never interrogated by IO and the complaint of the complainant is false. They did not know about the alleged receipt books.
Accused persons chose to lead evidence in their defence, however, Ld. Defence Counsel filed on record the certified copy of Mediation Order and judgment of Civil Court proved as Ex.D1 and Ex.D2 respectively in the statement of recorded u/s. 313 Cr.PC of accused Aman Jamal and the closed the defence evidence on behalf of all accused persons vide separate statement recorded on 27.08.2018. Therefore, the matter was listed for Final Arguments.
13. Final arguments were heard from Ld. APP for the State and Ld. Counsel for accused persons. The entire record has been carefully perused.
14. In a nut shell, the case of complainant as put forth by prosecution is that the father of the complainant Mr. Mohd. Yunus had various shops and properties owned by him and gifted property bearing No.5620 to 5628 and 5647 to 5654, Gandhi Market, Sadar Bazar, Delhi vide gift deed dated 13.02.1984, proved as Ex.PW4/A. However, accused No.1 to 4, being sisters of complainant, collected rent from the aforesaid properties/ shops through accused No.5 claiming themselves as the owners of the properties/ shops. Further, they raised illegal construction FIR No.434/1999 State Vs. Hoor Jamal, etc. 11 of 14 PS Sadar Bazar on the aforesaid properties without permission of the complainant.
15. In order to prove its case, complainant/ PW-4 proved on record the registered gift deed dated 13.02.1984 as Ex.PW4/A (however the same is a photocopy and not original registered gift deed but the same was proved by PW-2 as Ex.PW-2/B to Ex.PW2/F), the agreement between accused No.1 to 4 and accused No.5 as Mark-B, rent receipt No.198 issued to Raghubir Singh proved as Mark-C (being photocopies), the certified copy of the order of civil suit proved as Ex.PW4/B (however the same is only interim order and not the final order in favour of the complainant) and the copy of present complaint as Ex.PW4/C. However, the complainant admitted during his cross- examination that vide judgment dated 26.10.2013 of the court of Sh. V.K.Bansal, the respective shares in the property in question were given to accused Hoor Jamal, Aman, Shahida and Suraiya. However, he voluntarily stated that he has challenged the said order in appeal before the Hon'ble High Court of Delhi but no such final order has been filed on record by the complainant. Further, he admitted that in the legal notice given to Sh. Gopal Chand Bhatia, it was mentioned that he is allowing the tenants of properties to construct illegally on the aforesaid properties without permission and consent of Mohd.Yunus, father of complainant. He failed to tell the date, month or year when the said alleged illegal construction was raised by accused Mahir Raza. He also failed to remember the date of making complaint to concerned MCD Office for the said illegal FIR No.434/1999 State Vs. Hoor Jamal, etc. 12 of 14 PS Sadar Bazar construction, which indicates that illegal construction on the properties in question was raised during the life time of father of complainant and not by accused persons, as alleged.
He also admitted that qua the property bearing No.5622, Sadar Bazar, Delhi, he filed civil case against Aman and Suraiya, however, the same was decided in their favour.
16. Further during investigation, none of the IOs collected the rent receipts alleged to be issued by accused Mahir Raza and only photocopies have been filed on record, which are inadmissible in evidence. No proper investigation has been conducted in the present matter by the IOs as they have not verified the important factum of ownership over the properties in question, which is the germane of the present matter.
17. Furthermore, as per the order of Ld. ADJ dated 06.12.2010 proved as Ex.D2, the complainant has not been able to prove the gift deed Ex.PW2/F, which is basis of the present matter and it is held by the aforesaid court in para 21 that complainant does not get any right on the basis of will and gift deed. The defendant/ present complainant themselves admitted that the property in question is still not partitioned and accused No.1 to 4 are also having right in the said property, accordingly, the share was granted to accused No.1 to 4. Therefore, the complainant is not able to prove on record that he was the sole owner of FIR No.434/1999 State Vs. Hoor Jamal, etc. 13 of 14 PS Sadar Bazar the properties in question and the accused No.1 to 4 have cheated him by collecting the rent from the aforesaid properties.
18. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
19. In these facts and circumstances of the present matter, serious doubts have been casted upon the story put forth by prosecution, therefore, it is held that prosecution has failed to bring home the guilt of accused beyond reasonable doubt. Accordingly, all five accused persons namely Hoor Jamal, Suraiya Jamal, Aman Jamal, Shahida Jamal and Mahir Raza are acquitted of charge U/s 420/120B IPC in the present FIR bearing No.434/1999, PS Sadar Bazar.
SHEFALI Digitally signed by SHEFALI
BARNALA TANDON
ANNOUNCED IN THE OPEN BARNALA Date: 2018.09.26 16:57:00
TANDON +0530
COURT ON 24.09.2018
(SHEFALI BARNALA TANDON)
MM-06 (C)/TIS HAZARI COURT
DELHI
All pages are duly signed.
FIR No.434/1999 State Vs. Hoor Jamal, etc. 14 of 14
PS Sadar Bazar