Delhi District Court
Ashok Kumar vs . State And Ors. on 30 October, 2017
CA No. 02/17
Ashok Kumar Vs. State and Ors.
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS,
NEW DELHI
CA No. 02/17
ID No. 38/17
CNR No. DLSW010012122017
In the matter of:
Sh.Ashok Kumar
S/o Late Sh.Shree Ram
R/o WZ727, Village Palam
Near Chotu Ram Public School
Delhi.
... Appellant
Versus
(1) The State (Govt. of NCT of Delhi)
(2) Prehlad
S/o Late Shree Ram
(3) Sh.Jai Narain
S/o Late Shree Ram
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CA No. 02/17
Ashok Kumar Vs. State and Ors.
(4) Sh.Satish Kumar
S/o Late Shree Ram
All R/o WZ727, Mohalla Badiyal
Village Palam, Delhi.
... Respondents
Date of institution of appeal : 06.02.2017
Date on which judgment reserved :23.10.2017
Date on which judgment pronounced:30.10.2017
JUDGMENT
1. The appellant is aggrieved by the judgment dated 03.12.2016 (hereinafter referred to as impugned judgment) of the Ld.Trial Court vide which he was convicted under Section 406 IPC and sentence order dated 09.01.2017 (hereinafter referred to as the impugned sentence order) of the Ld.Trial Court vide Page no.2 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
which appellant was sentenced under Section 406 IPC to rigorous imprisonment for a period of two years alongwith fine of Rs.20,000/ and in default of fine, to further undergo simple imprisonment for four months.
2. The brief facts which are relevant for deciding the present appeal are that respondents no.2 to 4 had filed a complaint alleging that their father was the owner of two properties i.e. WZ727, Village Palam, Delhi and WZ686, Mohalla Badiyal near Muniyaro Wali Gali, Village Palam, Delhi which were the self acquired properties of father of respondents no.2 to 4. It was alleged that all the four brothers i.e. respondents no.2 to 4 and appellant were staying in property no. WZ727, Village Palam, Delhi whereas property bearing no. WZ686, Village Palam, Delhi was locked and was in joint possession of respondents no.2 to 4 and appellant. It was also alleged that appellant was handed over the original documents of both aforementioned properties of father of respondents Page no.3 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
no.2 to 4 for safe custody in good faith. It was alleged that with the aim of grabbing the entire property bearing no. WZ686, Village Palam, Delhi, appellant and his wife started approaching the property dealers for selling the same. It was alleged that a legal notice dated 07.12.2009 was also sent by respondents no.2 to 4 asking appellant not to create any third party interest in the aforementioned property bearing no. WZ686, Village Palam, Delhi and also demanded return of original documents. However, no reply was given by appellant. Thereafter, respondents no.2 had filed a suit for permanent injunction and in the reply filed by appellant, it was stated by the appellant that he had sold the property. It was also alleged that on 07.01.2010, appellant and his wife had broken the locks of property no. WZ686, Village Palam, Delhi and had committed the theft of articles lying therein, of father of respondents no.2 to 4, for which a police complaint dated 08.01.2010 Page no.4 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
was also given. It was alleged that appellant and his wife by forging the documents, had sold the property of father of respondents no.2 to 4 without having any right to do so and thereby he committed the offence of breach of trust and also committed the offence of theft and of forging of documents. Accordingly, a prayer was made to summon the appellant and his wife.
3. Alongwith the complaint, respondents no.2 to 4 had also filed an application under Section 156(3) Cr.P.C. for seeking directions to police for registration of FIR. However, the said application was dismissed on 05.03.2010 by the Ld.Trial Court and respondents no.2 to 4 were given an opportunity to lead presummoning evidence.
4. Thereafter, respondents no.2 to 4 had examined themselves at the presummoning stage. However, the complaint was dismissed vide order dated 17.01.2012. Thereafter, respondents no. 2 to 4 had preferred a Page no.5 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
criminal revision and vide order dated 26.03.2012, Ld.Sessions Court had set aside the order dated 17.01.2012 and directed for issuance of summons against appellant and his wife. Thereafter, respondents no.2 to 4 had led precharge evidence and after the conclusion of precharge evidence, charge under Section 379/406/468/34 IPC was framed against appellant Ashok and charge under Section 379/34 IPC was framed against his wife Kiran to which they pleaded not guilty and claimed trial.
5. At the postcharge stage, respondents no.2 to 4 had examined two witnesses and appellant in his defence, had examined one witness.
6. Thereafter, the Ld.Trial Court, after hearing the arguments, had vide the impugned judgment acquitted wife of appellant for the offence under Section 379 IPC and had also acquitted appellant for the offence under Sections 468 IPC and under Section 379 IPC. However, Page no.6 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
appellant was only found guilty for the offence under Section 406 IPC and was sentenced accordingly for the said offence vide the impugned sentence order.
7. Aggrieved by the impugned judgment and impugned sentence order, appellant has preferred the present appeal.
8. Notice of the appeal was issued to respondents. A detailed reply was filed by respondents no.2 to 4.
9. I have heard Sh.M.S.Yadav, Ld.counsel for the appellant, Sh.Anil Kumar Gupta, Ld.Chief PP for respondent no.1/State and Sh.Manoj Singh, Ld.counsel for respondents no.2 to 4. I have also summoned the trial court record and have carefully perused the same.
10. It was submitted by Ld.counsel for appellant that the impugned judgment is bad in law and is based upon surmises and conjectures and the facts have not been appreciated in the proper manner by Ld.Trial Court.
11. It was further submitted that the Ld.Trial Court Page no.7 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
failed to appreciate that appellant had been residing with his father since his birth in house no. WZ686, Village Palam, Delhi and since appellant was suffering from 60% disability and had been taking care of his father, therefore, father of appellant and respondents no.2 to 4 also, had made an oral gift in favour of appellant with regard to house no. WZ686, Village Palam, Delhi. Therefore, appellant was in possession of house no. WZ 686, Village Palam, Delhi, since birth.
12. It was further submitted that Ld.Trial Court failed to appreciate that since gift was made orally by father of appellant, therefore, there was no question of placing on record the gift deed.
13. It was further submitted that Ld.Trial Court also failed to appreciate the fact that other property of father of appellant and respondents no.2 to 4 i.e. WZ727, Village Palam, Delhi was partitioned and the Ld.Trial Court also failed to appreciate the fact that it was an Page no.8 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
admitted case of respondents no.2 to 4 that they never lived in property no. WZ686, Village Palam, Delhi. Therefore, the question of property bearing no.WZ686, Village Palam, Delhi, being in their possession, does not arise and respondents no.2 to 4 had deposed falsely with regard to WZ686, Village Palam, Delhi, being in their joint possession.
14. It was further submitted that the property in possession of respondents no.2 to 4 i.e. WZ727, Village Palam, Delhi was 100 sq.yards property whereas property in possession of appellant was a plot measuring 28 sq.yards. It was further submitted that out of love and affection and having regard to the fact that appellant was a handicapped person, father of appellant had gifted him property no. WZ686, Village Palam, Delhi, whereas other property which is bigger in area, was partitioned between respondents no.2 to 4.
15. It was further submitted that since property was Page no.9 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
gifted to the appellant, therefore, property documents in original were in possession of appellant. However, Ld.Trial Court did not appreciate this fact in the right perspective.
16. It was further submitted that Ld.Trial Court wrongly disbelieved the testimony of appellant as appellant was unable to tell the date, month and year when his father had made oral gift to him. However, the Ld.Trial Court did not apply the same yardstick while appreciating the testimony of respondent no.2, who also could not tell the date, month and year regarding the partition of property no. WZ727, Village Palam, Delhi.
17. It was further submitted that if respondent no.2 could not remember the date, month and year of the partition then the testimony of appellant should have also been believed regarding his not remembering the date, month and year of oral gift made by father of appellant and on this ground, testimony of appellant should not Page no.10 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
have been doubted.
18. It was further submitted that in the civil suit filed by respondent no.2, appellant had stated the true facts regarding selling of property to Madan Mohan Patra as appellant being unemployed was in dire need of money. It was further submitted that the aforesaid all true facts were stated before the civil court and the conduct of appellant was fair conduct.
19. It was submitted that even the Ld.Trial Court failed to appreciate the fact that respondents no.2 to 4 did not file any civil suit for declaration regarding the sale made by appellant being bad in law or null and void.
20. Lastly, it was submitted that even the local police did not register a FIR as they did not find any criminality in the allegations. Accordingly, a prayer was made to set aside the impugned judgment and impugned sentence order.
21. Alternatively, it was submitted that in case, the Page no.11 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
impugned judgment is not set aside, then it was prayed that since appellant is the first time offender and is a handicapped person, therefore, he be released by giving the benefit of probation.
22. In support of his contention, Ld.counsel for appellant has relied upon the judgment of the Hon'ble High Court of Delhi titled as Bharat Bhushan and another Vs. Kanta Devi & another, 2016 (1) JCC 410.
23. On the other hand, Ld.counsel for respondents no.2 to 4 submitted that the impugned judgment and impugned sentence order do not call for any interference as the same have been delivered by the Ld.Trial Court after perusing the evidence which was led on record.
24. It was submitted that it was proved on record that appellant was entrusted with the property documents and it was also an admitted fact on the part of appellant that he had sold the property to Madan Mohan Patra depriving respondents no.2 to 4 of their legal share in the property Page no.12 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
left by their father, who died intestate.
25. It was further submitted that entire sale proceed was dishonestly misappropriated by appellant for his own use. Therefore, the offence of criminal breach of trust was clearly made out and Ld.Trial Court had rightly convicted the appellant for the said offence.
26. It was submitted that there is no illegality or infirmity in the impugned judgment of the Ld.Trial Court. Accordingly, a prayer was made to dismiss the appeal.
27. I have considered the rival submissions and have carefully perused the trial court record.
28. For convicting a person under Section 406 IPC, it is required to be proved by prosecution that there was entrustment of some property and thereafter, the person, who had been entrusted, had dishonestly misappropriated the entrusted property or converted to his own use the entrusted property and if these two facts are proved, then only the person can be convicted for the offence under Page no.13 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
Section 406 IPC.
29. The admitted facts which have come on record, as per crossexamination of CW1 Prahlad Singh and CW2 Satish Kumar are (1) that father of appellant and respondents no.2 to 4 was the owner of two self acquired properties i.e. WZ727, Village Palam, Delhi and WZ686, Mohalla Badiyal near Muniyaro Wali Gali, Village Palam, Delhi, (2) that property no. WZ727, Village Palam, Delhi, was duly partitioned in the year 1986 during the life time of father of appellant and respondents no.2 to 4, (3) that respondents no.2 to 4 had carried out the construction in the property no. WZ727, Village Palam, Delhi after the same was partitioned and after seeking permission from their father and lastly, that appellant was staying in property no. WZ686, Village Palam, Delhi for about 12 years as per cross examination of CW2 Satish Kumar.
30. Now, in the light of aforementioned admissions and other evidence which had come on record, it is required Page no.14 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
to to be seen as to whether any offence under Section 406 IPC was committed by appellant or not?
31. From the testimony of CW1 Prahlad Singh and CW2 Satish Kumar, it is not clear as to whether appellant was given any right in the partition of property no. WZ727, Village Palam, Delhi which took place in the year 1986.
32. In the entire evidence of CW1 Prahlad Singh and CW2 Satish Kumar, although it is admitted that property no. WZ727, Village Palam, Delhi was partitioned but who were the cosharers, has not been specifically deposed. However, from the crossexamination of CW2 Satish Kumar, it has come on record that respondents no.2 to 4 were residing in property no. WZ727, Village Palam, Delhi after having constructed their respective portions. Therefore, it can be inferred that appellant was not given any share in the partition of property no. WZ727, Village Palam, Delhi and in case, any share was allotted to him, then CW1 Prahlad Singh and CW2 Satish Kumar would Page no.15 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
have specifically deposed about the same.
33. Further, since it has come in the evidence of CW1 Prahlad Singh and CW2 Satish Kumar that appellant was staying in property no. WZ686, Village Palam, Delhi for around 12 years and since it was also admitted by them that appellant was a handicapped person, therefore, the defence of appellant that he was orally gifted the property no. WZ686, Village Palam, Delhi by his father during his life time, cannot be discarded. The reason for the same is that since appellant was not given any share in the property no. WZ727, Village Palam, Delhi and having regard to his physical condition i.e. he being a handicapped person, the possibility of appellant being gifted property no. WZ686, Village Palam, Delhi by his father, cannot be ruled out.
34. The deposition made by CW1 Prahlad Singh and CW2 Satish Kumar that after the death of their brother Sandeep in the year 2006, they had handed over the Page no.16 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
original documents of both the properties to appellant is also difficult to believe. The reason for the same is that since property no. WZ727, Village Palam, Delhi was partitioned in the year 1986 as per evidence of CW1 Prahlad Singh, therefore, respondents no.2 to 4 had become coowners of the same and it is difficult to believe that being coowners, they would have handed over the original property documents of property no. WZ727, Village Palam, Delhi to the appellant.
35. Secondly, with regard to property no. WZ686, Village Palam, Delhi, it is difficult to believe that original property documents were entrusted to appellant in the month of December, 2006. The reason for the same is that if testimony of CW1 Prahlad Singh and CW2 Satish Kumar is required to be believed that their father had died intestate, therefore, on the death of their father in the month of February, 2006, all respondents no.2 to 4 and appellant had become coowners of property no. WZ Page no.17 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
686, Village Palam, Delhi. Therefore, there was no reason for the coowners i.e. respondents no.2 to 4 to have entrusted the property documents in original to appellant of property no. WZ686, Village Palam, Delhi.
36. Yet, another reason for doubting the testimony of CW1 Prahlad Singh and CW2 Satish Kumar is the fact that no where it has come in the testimony of CW1 Prahlad Singh and CW2 Satish Kumar as to how respondents no.2 to 4 were in possession of original documents and it has also not come in their testimony as to who was having the specific possession of original documents i.e. whether it was respondent no.2, respondent no.3 or respondent no.4 and which of the respondents had entrusted the original property documents to appellant. Therefore, this fact also makes the testimony of respondents no.2 to 4 doubtful regarding entrustment of property documents to appellant.
37. The other fact which also creates a doubt in the case Page no.18 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
set up by respondents no.2 to 4 is the fact of appellant possessing original documents of property no. WZ686, Village Palam, Delhi.
38. The very fact that appellant was in possession of original documents of property no. WZ686, Village Palam, Delhi supports his defence that the property was orally gifted to him by his father and that is why he was in possession of original documents.
39. The evidence which has come on record of respondents no.2 to 4 do not prove beyond reasonable doubt that appellant was entrusted with original documents of both properties i.e. WZ727, Village Palam, Delhi and WZ686, Mohalla Badiyal near Muniyaro Wali Gali, Village Palam, Delhi left behind by their father. It is also doubtful that respondents no.2 to 4 would have got a share in property no. WZ727, Village Palam, Delhi and the father of respondents no.2 to 4 would not have given any share to appellant. Therefore, defence of appellant Page no.19 /21 CA No. 02/17 Ashok Kumar Vs. State and Ors.
that he was only gifted property no. WZ686, Village Palam, Delhi by his father and having regard to the admitted fact that appellant was residing in the said property and was also in possession of original property documents, defence of appellant is required to be believed on the preponderance of probabilities.
40. Therefore, the Ld.Trial Court committed grave illegality by holding appellant guilty for the offence under Section 406 IPC even though there was no specific deposition as to which of the respondents had entrusted the documents to appellant and even there was no evidence led by respondents as to how they got in possession of original documents of both properties. Hence, appeal filed is allowed. Impugned judgment and impugned sentence order are accordingly set aside.
41. Appellant stands acquitted for the offence under Section 406 IPC. His personal bond/surety bond is discharged.
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42. Let appellant furnish bail bond in terms of Section 437A Cr.P.C. on the next date of hearing.
Announced in the open court
Dated: 30.10.2017 (Vikas Dhull)
Spl. Judge (PC Act) (CBI)03
Dwarka Courts/New Delhi
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