Delhi District Court
Madan Singh vs State on 21 June, 2014
Criminal Appeal No. 11/14
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE (SHAHDARA),
KARKARDOOMA COURTS, DELHI
Unique I.D. : 02402R0226972013
Criminal Appeal No. : 11/2014
Madan Singh,
S/o. Sh. Amar Singh
R/o. 183, Yash Apartment,
Mahadeo Nagar, Sirsi Road,
Jaipur, Rajasthan.
...........Appellant
Versus
State
..........Respondent
1. Date of Institution : 23.07.2013 2. Date of receiving the case in this court : 18.01.2014 2. Date of reserving the order : 28.05.2014 3. Date of pronouncement : 21.06.2014 4. Decision : Allowed. JUDGMENT IN APPEAL
1. This appeal is filed against the judgment of conviction passed by Ld. ACMM (Shahdara), Karkardooma, Delhi on 03/07/2013 in FIR no. 39/2002, PS Anand Vihar under Section 420/34 IPC.The appeal is also directed against the order of sentence passed by the trial court on 11/07/2013. Vide impugned judgment, the trial court (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 1 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 convicted the appellant for offence under Section 420/34 IPC and vide impugned order dated 11/07/2013, appellant was sentenced to rigorous imprisonment for three years and fine of Rs.5,000/-. In default of payment of fine, appellant was directed to undergo RI for three months.
Case set up by the prosecution
2. This case is based upon a complaint made by the complainant Ms. Phoolwati. She alleged that appellant and his son Sh. Bablu (expired) approached her with offer to purchase a piece of land measuring 200 sq. yds. They represented before the complainant that this land was in the name of Sh. Bablu. The sale consideration was settled at Rs.5000/- per sq. yds. despite the fact that the normal rate prevalent at that time was Rs.10,000/- per sq. yds. Both the parties were known to each other for about 35 years and therefore, appellant had offered a cheaper rate and final consideration amount was settled at Rs. ten lacs. Out of this amount, complainant paid Rs.6.50 lacs to the appellant on 10/12/1999 at her residence and the appellant gave a pronote as acknowledgment of this transaction and agreement. However, appellant avoided to execute formal transfer deed and out of suspicion, complainant made enquiry about the proposed land. Her son came to know that this land was not owned by the appellant and his son. Thus complainant realized that she was cheated and hence the present complaint was filed.
3. Police charge-sheeted appellant and his son Bablu for offence (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 2 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 under Section 420/34/120B IPC. Court framed charges against both the accused persons for offence under Section 420/34 IPC on 22/04/2013. During pendency of the trial, co-accused Bablu expired and case was abated against him vide order dated 17/11/2006.
Prosecution evidence
4. Prosecution examined eight witnesses in support of its case. PW-1 Phoolwati was the complainant. She deposed that talk /deliberation for purchase of land in question was going on between her and the accused persons for last two-three years. Both accused had represented to her that they were managers of Sita Ram Bhandar Trust and were having the land of trust with them. On their offer, she agreed to purchase the land for a total sum of Rs.10 lac. The accused persons had shown her the land which was situated near Jagriti Mandir, Sita Ram Bhandar. On 10/12/1999, she paid Rs.6.50 lacs to the accused persons in the presence of her son Kallu Ram (PW-5), her husband-Sh. Babu Lal, Sh. Swaroop Singh (PW-2) and Sh. Tejpal Singh. Accused persons were having a pronote which was already executed by them and said pronote was signed by Sh. Swaroop and Tejpal. This pronote was proved as Ex. PW1/A. She further deposed that accused persons did not give possession of the land and they kept on making excuse, therefore she sent her son Kallu Ram to verify the ownership of land from Patwari. The patwari told her son that the land in question did not belong to the accused persons, as it was owned (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 3 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 by Sita Ram Bhandar Trust. She deposed that she was cheated by the accused persons and she demanded back her money, but the accused persons did not repay the same. Hence, she filed a complaint before DCP, which Ex. PW1/B. She also testified that she had arranged Rs.6.50 lacs from different sources. Rs.4.50 lacs was the sale amount of a plot belonging to her and Rs. 1 lac each was arranged from her jewellry as well as from her personal business of sweet shop. Since she had good relations with the accused persons, therefore, she had not insisted for execution of any receipt or agreement.
5. PW-2 (Sh. Swaroop) was the alleged witness of execution of pronote Ex. PW1/A. He deposed that on 10/12/1999 at about 12.30-1.00 PM, he went to the house of the complainant where accused persons, complainant and her son were present and they were having the negotiations for sale of a plot. Amount of consideration was settled at Rs. ten lacs and Rs.6.50 lacs were paid by PW-1 and PW-5 to the accused persons. Appellant executed pronote Ex. PW1/A and he had signed the same.
6. PW-3 SI Jagtar Singh had made preliminary enquiry on the complaint given by the complainant and had made endorsement for registration of the FIR.
7. PW-4 Sh. Devak Ram was the Senioir Scientific Officer in the FSL, Rohini, who had examined the signatures of appellant on pronote Ex. PW1/A and had compared the same with specimen signatures as well as admitted signatures i.e. A1 to A12, of the appellant. He (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 4 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 gave his report Ex. PW4/A concluding that pronote was signed by the appellant.
8. PW-5 Sh. Kallu Ram was the son of the complainant, who also deposed more or less on the same lines as deposed by PW-1 regarding this transaction.
9. PW-6 HC Devender Kumar had registered the FIR being the duty officer on 20/02/2002. FIR was proved as PW3/B.
10.PW-7 SI Toddar Singh had investigated this case and during investigation, he formally arrested the appellant as well as co- accused Bablu. He obtained specimen signatures of appellant and sent it with pronote to the FSL. However, FSL requested to send admitted signatures of the appellant and therefore, he sought permission from the court through his application Ex. PW7/B and obtained admitted signatures of the appellant from Birla Cottan Mill, Shakti Nagar. Thereafter, he sent all these documents again to the FSL.
11.PW-8 was Patwari in sub-division, Vivek Vihar. He brought the record of Khasra Girdhawari of Village Karkardooma (Kh. no. 1773/1226). As per this record, the land under Kh. no. 1773/1226 was in the name of Sita Ram ji and the cultivation was in the name of Khem Chand.
Defence evidence
12.Appellant also examined seven witnesses in defence including himself. Appellant appeared in the witness box as DW-1 and deposed that he was working as Manager in Birla Mills Dairy upto (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 5 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 16.06.1999. The Birla Dairy was tenant under Sita Ram Bhandar Trust and Sita Ram Bhandar Trust had filed suit for recovery of possession of vacant land including Birla Mills Dairy. He was taking care of this case on behalf of Birla Mills Dairy. Attorney of Sita Ram Bhandar Trust namely Acharya Arun Dev had offered him not to work for Birla Mills Dairy and had asked him to surrender the possession of land to him. However, he did not oblige Mr. Arun Dev and Mr. Arun Dev had lodged four FIRs against him. Three of those cases were already decided in favour of the appellant. Even complainant of this case was a witness in two of those cases. Complainant had also filed a recovery suit against him before the Court of ld. ADJ, Tis Hazari Court. He filed certified copy of statement given by complainant in that civil proceeding, which was proved as Ex.DW1/J. S.I. Jagtar had also deposed as witness in that civil suit. He had applied before DGHS, Ministry of Health regarding presence of Mr. Tej Pal Singh, another marginal witness through application i.e. Ex.DW1/K, in respect of his duty hours, on 29.06.2007 and he was replied by the department along with the log book. He had also lodged complaint before ACP, DCP and SHO regarding the false case filed against him. The certified copies of the same were proved as Ex.DW1/L. He had not signed Ex.PW1/A on five revenue stamps nor did he took Rs. 6,50,000/- from the complainant. Mr. Swaroop Singh was relative of nephew of the complainant being 'sadhu' (brother-in-law). The present case was lodged against him in connivance of Acharya Arun Dev (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 6 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 because he had refused to deliver the possession of Birla Mills Dairy.
13.DW-2 Sh. Ramesh Chander produced log book of Mr. Tej Pal Singh, driver from the office of DGHS, Nirmal Bhawan, Delhi. According to this record, Mr. Tej Pal Singh was present on his duty on 10.12.1999 from 8 AM to 11 PM. Certified copy of this record was proved as Ex.DW2/A.
14.DW-3 Sh. Vijay Kumar was resident of the same village i.e. Village:
Karkardooma. He deposed that Mr. Swaroop Singh was 'sadu' (brother-in-law) of Mr. Hari Ram and Mr. Hari Ram was nephew of Smt. Phool Wati.
15.DW-4 Sh. Mahender Kumar appeared on behalf of Syndicate Bank, Nirman Vihar, Delhi and brought the record of declaration of RD A/C No. AKS-1260.
16.DW-5 Sh. Ranvir Singh was patwari in Karawal Nagar, who produced the record of Khasra Girdawari of Karawal Nagar area for the period between 1996 to 2000, as pertaining to Khasra No.
250. According to this record, the land under this khasra was in the name of different persons than the complainant.
17.DW-6 Sh. Jai Ram Singh was working in Birla Dairy Firm. He also deposed that Birla Dairy was running on the land of Sita Ram Bhandar Trust as tenant and Acharya Arun Dev was attorney of Sita Ram Bhandar Trust. He further deposed that complainant Smt. Phoolwati was known to her as she used to do agricultural work on the land of Sita Ram Bhandar Trust and her cattle used to graze on (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 7 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 the land of this trust.
18.DW-7 Sh. Deepak Jain was handwriting expert, who had examined the disputed signatures Q1 to Q5 and had compared signatures appearing on the revenue stamps with the specimen signatures i.e S1 to S5. He had given a negative opinion in respect of identity of these signatures.
Arguments of appellant:
19.Ld. counsel for appellant raised following points to challenge the impugned judgment:-
(i) Report of handwriting expert Ex.PW-4/A cannot be relied upon because specimen Ex.PW-7/A-1 to Ex.PW-
7/A-5 were not taken with permission of the Court. Evidence of handwriting explert i.e. PW-4 is not reliable. Admittedly no mark were found on the questioned documents. Such situation shows that the report was given without any examination. There is no seal of FSL either on the questioned document, as against the settled norm of the FSL to affix its own seal on the questioned documents. Besides that, the opinion given by PW-4 suffers from many flaws which cannot be accepted. His testimony shows that he has opined on the basis of presumption rather than on the basis of any scientific reasons.
(ii) Mark-A to Mark A-12 (admitted handwriting of (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 8 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 accused) were not proved. Mark-A to Mark A-12 were not put for admission-denial under Section 294 Cr.P.C. nor original documents were called for. Therefore, these documents cannot be read in evidence.
(iii) PW-7/IO collected Mark A-1 to Mark A-12, however there is no seizure memo on the record nor Sh. R.C. Goel was called as witness to prove handing over of these documents.
(iv) The handwriting expert did not enlarge the photo of questioned documents and without enlarged photograph of the same, the questioned documents could not be compared validly.
(v) Ex. PW-1/A was laminated and it could not be compared with specimen handwriting.
(vi) The proforma of Ex. PW1/A shows that such proforma came in the market in the year 2000, however the execution date of Ex. PW1/A pertains to the year 1999. This fact shows the manipulation done by the complainant.
(vii) In respect of duration of talk for alleged transaction, different versions were given by the PW-1 and PW-5. PW-1/complainant deposed that such talks continued for around three year with the appellant. On the other hand, son of the complainant i.e. PW-5 deposed that such talks continued for a month. This contradiction in respect of a (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 9 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 vital fact is one of the various contradictory statement given by PW-1 and Pw-5 which go into the root of this case and to raise doubt over the creditability of the case of the prosecution.
(viii) Sh. Khem Chand was not examined by the prosecution to prove that he had executed any GPA in favour of the appellant.
(ix) No proof of source of money was given by the complainant.
(x) IO did not prepare site plan of disputed land.
(xi) There was delay in lodging the complaint dt. 18.12.2001, which was lodged after about 2 years of transaction.
(xii) DW-2 produced duty roaster of Sh. Tejpal, thereby showing that he was on duty from 08:00 AM to 11:00 PM on the date of alleged execution of Ex. PW1/A, but prosecution shows that Sh. Tejpal was witness to this document, though he was not examined by prosecution.
(xiii) The document Ex. PW1/A does not establish the alleged transaction of sale of the land, being in the form of pronote with vague contents. In fact, the complainant manipulated the document to falsely support her case in order to recover money from the appellant.
(xiv) The complainant and his family members falsely implicated the appellant in connivance with Archarya (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 10 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 Arun Dev of Sita Ram Bhandar Trust., The family of complainant was well aware about the ownership of the land pertaining to Sita Ram Bhandar Trust and PW-1 admitted that her own land was situated adjacent to the land belonging to Sita Ram Bhandar Trust. She also admitted that the land of appellant was adjacent to her land, which was acquired by the Government. In these circumstances, it cannot be believed that the land which was allegedly sold by the appellant to the complainant, could not have been within the knowledge of the complainant especially regards to its ownership.
(xv) Ld. counsel for appellant referred to judgment passed in Rakesh Kumar v. State [2004 (1) JCC 110] to submit that the specimen signature and handwriting obtained without permission of the court could not be used as evidence during the trial. He referred to Kailash Gour and ors. v. State of Assam [2012 (1) LRC 81 (SC)] to submit that on the basis of faulty investigation, conviction cannot be recorded against the accused. He referred to Matu Ram v. State of Haryana [2008 (4) RCR (Crl.) 168] to submit that any confessional statement of the accused recorded under Section 313 Cr.P.C. is not admissible in evidence. For the same purpose, he referred to another case law cited as Shahbuddin v. State [2002 (1) JCC 368 (DHC)]. Ld. (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 11 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 counsel further referred to B. Suresh Yadav v. Sharifa Bee & anr. [2007 (4) RCR (Crl.) 870 (SC)] and V. Y. Jose & anr. v. State of Gujrat & anr. [2009 (1) RCR (Crl.) 869 (SC)] to submit that in order to establish the offence of cheating, the complainant was required to show that the accused had fraudulent or dishonest intention since the time of making promise. He referred to Shraon Michael & ors. v. State of Tamil Nadu & anr. [2009 (1) RCR Crl. 759 (SC)] to explain the ingredients of offence of cheating. He referred to State of Haryana v. Ram Singh [2002 (1) JCC 385 (SC)] and Anil Sharma v. State of Jharkhand [2004 (3) RCR (Crl.) 774 (SC)] to submit that defence witnesses are entitled for equal treatment. He referred to V. Sujatha v. State of Kerala [1995 (2) CCC 18 (SC)] and LIC v. Ram Pal Singh [2010 (2) CCC 315 (SC)] to submit that photostate copy of a document is not admissible in evidence. He referred to Dilawar Singh v. State of Delhi [2007 (4) RCR (Crl.) 115 (SC)] to submit that delay in lodging complaint is fatal for the case of the prosecution. He referred to State of Maharashtra v. Sukhdeo Singh & anr. [AIR 1992 SC 2100] to submit that evidence of handwriting expert in itself is not sufficient to prove the offence until unless it is corroborated by other piece of evidence.
(Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 12 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 Arguments of prosecution:
20.Ld. Chief PP with assistance of counsel for complainant raised following points to support the impugned judgment :-
(i) The complainant and her son knew accused for 30 years and there was no reason for them to falsely implicate the appellant in this case.
(ii) There is nothing on record to disbelieve the testimonies of handwriting expert and patwari.
(iii) Money was paid by complainant out of inducement and therefore, the appellant had committed cheating.
(iv) With permission of the Court, admitted signatures of accused were taken from his office for comparison.
(v) PW-1 and PW-5 have explained the source of some of the payments and they were not cross-examined on this aspect.
(vi) Sh. Tejpal was won over by the accused and even accused did not produce him. It is very much possible that a person marks attendance without being present on duty.
(vii) The delay in registration of FIR was due to the fact that complainant pursued the matter with the accused persons seeking return of her money and the accused persons had kept on lingering this matter on one or other pretext. However, when complainant realized that accused persons were befooling her, then she finally (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 13 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 approached the police with her complaint.
Findings
21.The case of prosecution is mainly based upon a pro-note Ex.PW1/A and the oral testimonies of PW-1, PW-2 and PW-5. The trial court relied upon the oral testimony to conclude that alleged transaction had taken place at the home of the complainant on 10.11.1999. The trial court also relied upon the testimony of PW-4 and the report given by him to conclude that appellant had executed this pro-note. Therefore, I intend to analyze these evidences in order to appreciate the contentions made on behalf of the appellant.
22.Ex.PW1/A was alleged to be signed by appellant at the residence of the complainant on 10.12.1999. According to PW-1, appellant came to her house at 7:30 AM and he had brought already executed pro-note with him, which means that this pro-note was already signed by the appellant. PW-1 further deposed that the attesting witnesses of this pro-note i.e. PW-2 and Tej Pal were already present in her house before coming of accused at 7.30 AM. She had called both of them to become witness. However, such statement of PW-1 is contradicted by testimony of PW-2 and PW-5. According to PW-2, he was merely passing-by and he was called by PW-1 and then he went to her house at about 12:30 - 1:00 PM. According to PW-2 and PW-5, this pro-note was signed by appellant in their presence and it was so executed around 1:00 PM. Even PW-5 i.e. son of the complainant deposed that this pro-
(Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 14 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 note was executed at around 1:00 PM. Thus, a contradiction appears in evidence of these three alleged witnesses of execution of Ex.PW1/A, regarding the time as well as regarding due execution of this pro-note. The difference between time of 7.30 AM as stated by PW-1 and the time of around 1.00 PM as stated by PW-2 and PW-5, is so much that it cannot be inferred that this contradiction appeared due to some misconception or confusion.
23.Furthermore, PW-4 i.e. the handwriting expert gave opinion that Ex.PW1/A bore signature of appellant. His such opinion is based upon the comparison of alleged documents i.e. A1 to A12 with the signatures appearing on Ex.PW1/A. I find merit in the argument of the ld. Counsel for the appellant that it was duty of the prosecution to prove that the documents A1 to A12 bore signature of the appellant and no one else. However, it is worth to mention that the IO i.e. PW-7 did note cite Mr. R.C. Goyal as witness from whom, he had allegedly obtained these documents. It would have been Mr. R.C. Goyal, who could have told IO that these documents bore signatures of the appellant. In that situation Mr. R.C. Goyal should have been brought into the witness box to depose before the court that these documents bore signatures of the appellant. The appellant was entitled for an opportunity to cross-examine this witness, in order to challenge this fact. However, it was not done so before the trial court. Still, the trial court proceeded on the presumptions that A1 to A12 bore admitted signature of the appellant, despite the fact that such fact was challenged by the (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 15 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 appellant since beginning by making his complaint before police i.e. DW1/2 and during examination of PW-1, PW-2 and PW-5. The trial court observed that the appellant did not deny in his statement U/s 313 Cr.P.C that these documents contained his signatures. In respect of such observations, I am in agreement with the argument of the appellant that the statement U/s 313 Cr.P.C.is not a piece of evidence.
24.Answers under Section 313 Cr.P.C. become relevant, only when there is incriminating evidence on the record. In absence of any evidence to say that documents Ex. A1 to Ex. A12 contained signature of accused, such question was improper. A1 to A12 were not proved by any witness, hence, they could not be read in evidence.
25.If A-1 to A-12 cannot be read in evidence, any opinion given by PW-4 on the basis of these documents, cannot be accepted by the Court as a reliable and acceptable opinion. I say so for simple reasons that until and unless, it is proved by the prosecution that the alleged admitted signatures pertained to appellant, then any comparison made with alleged admitted signature becomes a useless exercise. Therefore, Ex.PW4/A is of no significance in this case. In absence of Ex.PW4/A, it cannot be said conclusively that Ex.PW1/A bear the signatures of the appellant. I have already highlighted the material contradictions in oral testimony of PW-1, PW-2 and PW-5 related to execution of Ex.PW1/A. In these circumstances, I find that this evidence projected by the (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 16 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 prosecution is not reliable i.e. to say that Ex.PW1/A cannot be assumed to be executed by the appellant.
26.PW-2, who was shown as a chance witness by the prosecution, was alleged to be a relative of PW-1. DW-3 deposed before the Court that PW-2 was brother-in-law of the nephew of PW-1 and the prosecution did not challenge this fact during his cross- examination. The contradiction in the statement of PW-1, PW-2 and PW-5 regarding the time of arrival of PW-2 and regarding the fact that PW-2 was called in advance by PW-1 to become a witness, make it a doubtful story to say that PW-2 was a chance witness.
27.Another witness to Ex.PW1/A namely Sh. Tej Pal Singh was proved to be attending his office on the said date. Prosecution could not challenge the evidence produced by DW-2, which established that Tej Pal Singh was attending his office between 8 AM to 11 PM. In these circumstances, the contradictions appearing in the statement of PW-1, PW-2 and PW-5 become more relevant. This witness was, however, produced by the appellant in the admitted civil proceedings between the complainant and appellant. Ex.DW1/N is the certified copy of affidavit of Mr. Tej Pal, which was filed before the Civil Court and in that affidavit, Mr. Tej Pal had stated that PW- 5 had called him to his house and said that his mother had given a loan to the appellant herein and had asked him to sign the document, though such document was not executed before him. Therefore, the execution of pro-note Ex.PW1/A remains a doubtful (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 17 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 transaction. The other part of transaction i.e. handing over of Rs. 6.5 lacs to the appellant was also a part of same transaction, in which execution of this pro-note was shown by the complainant and the prosecution. In fact, this pro-note was used by prosecution to prove that such amount was actually paid by PW-1 to the appellant.
28.PW-1 and the prosecution did not produce any evidence before the trial court to show and establish the source of such amount. PW-1 merely gave oral statement that she had sold a plot in Karawal Nagar for Rs. 4.5 lacs and she had arranged Rs. 1 lac after selling her jewelleries and Rs. 1 lac from her shop of sweets. On the other hand, PW-5 i.e. son of PW-1 deposed that he had contributed more than Rs. 1 lac after withdrawing the same from his bank account. He further deposed that he had informed the IO about this fact. But neither any sale documents of the plot allegedly sold in Karawal Nagar by PW-1, was proved nor record of bank account of any of these parties was proved before the trial court. Therefore, I find that this important aspect was ignored by the trial court. On the other hand, from Ex.DW1/J i.e. certified copy of statement given by PW-1 in the civil proceedings regarding same transaction, I find that she altogether refused to recollect even the time when such plot was allegedly sold by her or the particulars of jeweller to whom she had allegedly sold her jeweleries. This is improbable situation, if these transactions would actually have taken place, that a person would not even remember the time of (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 18 of 19 Karkardooma Courts / Delhi Criminal Appeal No. 11/14 such transaction or the particular of the person with whom such important and big transaction had taken place. Therefore, I find that even source of the amount allegedly paid by PW-1 to PW-5 is not established by the prosecution. In these circumstances, I find the whole story of the complainant of paying money against transaction of purchase of a land, is a doubtful story and is not proved on the record beyond reasonable doubts. In that situation, there cannot be any ground to raise assumption of guilt of appellant for the offence of cheating as apparently basic ingredients of this offence are not satisfied. Hence, this appeal is allowed.
29.Impugned judgment dated 03.07.2013 and order on sentence dated 11.07.2013, passed in FIR No.39/2002, PS : Anand Vihar are hereby set-aside. Appellant Madan Singh is acquitted of the charges. Appellant shall be entitled for refund of fine from the trial court, which was deposited by him in this case. File of appeal be consigned to record room.
Announced in the open court (PULASTYA PRAMACHALA) today on 21.06.2014 Additional Sessions Judge (Shahdara), Karkardooma Courts, Delhi.
(This order contains 19 pages) (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Page no. 19 of 19 Karkardooma Courts / Delhi