Delhi District Court
State vs . Yogita Khatwani & Another on 29 October, 2022
IN THE COURT OF SH. APOORV GUPTA, MM02,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
STATE Vs. YOGITA KHATWANI & ANOTHER
FIR No. 380/2006
PS : TIMARPUR
U/S : 420/468/471/120b IPC
Date of institution of the case : 12.05.2008
Date of judgment reserved : 15.10.2022
CNR : DLCT020008842008
Date of commission of offence : On or about June, 2006
Name of the complainant : SI B. M. Bahuguna
Name of accused and address : (1) YOGITA KHATWANI
D/o Sh. Hira Nand
R/o Lalagunen Apartment, H 701,
Golf Course Road, Sector54,
Gurugram, Haryana.
(2) VIJAY KUMAR MATA
S/o Sh. Goverdhan Dass
R/o D62, Ground Floor,
Lord Krishna Marg, Adarsh Nagar,
Delhi.
Offence complained of : 420/468/471/120 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 29.10.2022
Final Order : ACQUITTED
JUDGMENT
1. The case of the prosecution against the accused persons is that they hatched a criminal conspiracy to prepare the forged election ID card bearing no. KSP0689801 in the name of accused Yogita Khatwani purportedly issued by Election Commission of India and on the basis of forged Election ID card dishonestly or fraudulently induced the Transport Authority Mall Road to transfer registration of Sonata Car bearing registration no. DL 4CB 0006 in the STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 1 / 18 name of accused Yogita Khatwani and thereby committed an offence punishable under Section 420/468/471/120B IPC.
COURT PROCEEDINGS :
2. Investigation was completed and police report u/s 173 Cr.P.C was filed under Sections 420/468/471/120B IPC. Cognizance was taken and accused persons were summoned. Provisions of Section 207 Cr.P.C. were complied with after appearance of the accused persons.
CHARGE :
3. After hearing arguments on charge, vide order dated 12.07.2010 charge was ordered to be framed for the offence under Section 420/468/471/120B IPC against the accused persons. The said order was challenged. Vide order dated 28.09.2010 accused Ashish Hans was discharged. Vide order dated 17.04.2012 charge was framed against accused Yogita Khatwani and Vijay Kumar Mata. The said order was challenged by filing a revision petition which was dismissed vide order dated 03.08.2012.
EVIDENCE OF THE PROSECUTION :
4. In order to substantiate its case, prosecution has examined twelve witnesses.
5. PW1 Md. Haroon deposed that he was running business of selling and purchasing of old cars with the name Stars Motors. Accused Yogita Ghotwani approached him to buy a car. He sold her a car make Sonata bearing no. DL 4CV 0006 against which she produced some documents which he STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 2 / 18 further handed over to one Sunil Kaushik who also works with him at Star Motors for transfer of ownership of the car in favour of accused. The documents were further handed over by Sunil Kaushik to one Vijay Mata but this fact was not told to him by Sunil Kaushik. On being asked by Ld. APP he stated that he came to know about the forged documents from the police. He stated that he did not know about the forged election ID card of the accused Yogita Khatwani and also did not know who did the same. He only gave form 29 & 30 to Sunil Kaushik for transfer of the vehicle. He further deposed that the registered owner of the vehicle Md. Shahid gave form 29 & 30 which was signed by him and he got it signed from the accused Yogita Khatwani.
6. PW2 Sunil Kaushik deposed that on 10.05.2006, he was running business of sale and purchase of cars. On that day, accused Yogita Khatwani along with one person namely Ankit came and purchased one Sonata car bearing no. DL 4C 0006. After around 15 days, she again came for the purpose of transfer of ownership of the said car. They submitted form no. 29, 30, RC book, Insurance and photocopy of passport of Ankit. They further submitted the aforesaid documents to accused Vijay Matta to transfer the ownership of the car. After transfer, accused Vijay handed over the RC in the name of accused Yogita which he gave to accused Yogita. Later on, he came to know that the election ID card of accused Yogita was fake.
7. PW3 Dalbir Kumar Solanki handed over the photocopy of the receipt Mark X pertaining to transfer of vehicle No. DL 4 CV0006 to the police officials which was seized vide seizure memo Ex.PW3/A. He was unable to STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 3 / 18 produce the original receipt as he was not associated with the transport department since last 11 years.
8. PW 4 Insp. B.M Bahuguna deposed that on 27.07.2006 one car bearing no. DL 4 CV 0006, intruded into the premises of PM house i.e., 7 RCR by impersonation. In that car, two girls namely Yogita Ghotwani and Veena Chaudhary and one boy namely Imran were sitting. FIR No.147/06 u/s 447/419/34 IPC PS Chanakya Puri was registered. During the investigation of said FIR accused Yogita Khatwani disclosed that she purchased the car from one Jahid through car dealer Harun. She produced the RC of vehicle and it was found that the said car was registered in her name as per RC. On verification the same from transport authority, he found that one voter ID card which was submitted alongwith other documents for transfer of the ownership by accused Yogita Khatwani was forged. He made a complaint at PS TimarPur Ex.PW 4/A. He handed over photocopy of RC, voter ID Card and DL of accused.
9. PW5 Pushkar Singh deposed that on 09.08.2006, he handed over the photocopy of documents relating to the vehicle no. DL 4CV 0006 in respect of transfer of ownership from Jahid to accused Yogita Khatwani to IO Rakesh Kumar. The photocopies of documents were seized by the IO vide seizure memo Ex. PW 5/A.
10. PW6 Md. Waseem Ahmad deposed that on 30.08.2006 he checked one election card number KSP0689801 under direction of Sh. Jai Bhagwan ,SDM(Election) and found no record regarding the above stated STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 4 / 18 Election Card. He was unable to produce any record regarding the same as he was now posted in Revenue Department, North West District (D. M. Office).
11. PW7 Zahid deposed that he had sold one car Sonata bearing no. DL. 4C 0006 on 12.08.2006 to accused Yogita Khatwani.
12. PW8 ASI Ved Pal was posted as duty officer from 8:00 am to 4:00 PM on 09.08.2006. On receiving rukka at 2:10 pm he registered FIR Ex. PW 8/A and made endorsement Ex. PW8/B.
13. PW9 Balraj Malhotra deposed that he was running business of sale and purchase of old cars. Accused Vijay Mata used to come to his office for business purpose. He went to Mal Road authority office and accused Vijay Mata met him over there and handed him some documents i.e. original RC, sale letter, photocopy of insurance and photocopy of address proof for the purpose of transfer of car bearing no. DL4CV0006. He deposited those documents in the authority and had taken slip of Rs.100 and Rs. 370/ and handed over those receipts to the accused Vijay. Receipt of Rs. 100/ is already mark X. Copy of insurance is mark A. Copy of pollution is mark B. Copy of RC is mark C. Those documents were handed over to him for the purpose of transfer in the name of accused Yogita Khatwani.
14. PW10 Inspector Rakesh Kumar is the IO of the case. On 09.08.2006, case file was handed over to him for further investigation. He requested the transport authority for some documents which were provided by the authority and were seized vide seizure memo Ex.PW5/A. He also seized STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 5 / 18 some documents which were taken from the B.M. Bahuguna vide seizure memo Ex.PW4/A. He also collected copy of identity card of accused Yogita Mark L from authority. On 20.08.2006, accused Yogita was formally arrested vide arrest memo Ex.PW10/A. He had taken two receipts from the authority. He seized a receipt of Rs. 100/from Dalbir Kumar vide seizure memo Ex. PW3/A. He seized one computer vide seizure memo Ex. PW10/B. Accused Vijay Matta was arrested vide arrest memo Ex.PW10/C. His disclosure statement Ex.PW 10/D was recorded. Accused Ashish was arrested vide arrest memo Ex. PW 10/E. His disclosure statement Ex. PW10/F was recorded. Case property was deposited in FSL. Form no. 29 and 30 are already Ex. PW2/D1 and PW2/D2 respectively. He recorded the statement of remaining witnesses and filed the chargesheet along with the FSL Report.
15. PW11 Rani Hans deposed that she does not remember anything in the present case due to the lapse of long time. However, police had taken her signature on blank paper. She correctly identified her signatures on seizure memo Ex.PW10/B.
16. PW12 HC Satyavir joined the investigation with IO and is a witness to the proceedings conducted by IO.
STATEMENT / DEFENCE OF THE ACCUSED :
17. In examination under Section 313 Cr.P.C., both accused persons pleaded their innocence in the present case. However, they did not prefer to lead any evidence in defence.
STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 6 / 18
18. I have heard Ld. APP for the State and Ld. Counsels for the accused persons and have perused the record.
ANALYSIS AND FINDINGS :
19. Before proceeding further with discussing the present case on merits, it becomes inevitable to discuss here the settled legal position in criminal cases. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favour the innocence of the accused is to be accepted by the Court.
20. The offences for which the accused persons have been charged with are Section 420/468/471/120B IPC. So broadly the offences for which the accused persons have been charged with can be divided in three categories i.e.
(i) cheating as punishable U/s 420 IPC,
(ii) forgery as punishable U/s 468/471 IPC and
(iii) criminal conspiracy U/s 120B IPC.
21. The first offence for which accused has been charged with is offence under Section 420 IPC. Before proceeding further with the factual position/findings qua commission of the offence U/s 420 IPC, it become STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 7 / 18 inevitable to deal with the basic legal principle as enumerated u/s 420 IPC r/w Section 415 IPC.
22. Section 420 of IPC deals with "cheating" which has been defined in Section 415 of IPC. Section 415 IPC reads as under :
"415. Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.A dishonest concealment of facts is a deception within the meaning of this section."
23. After going through the abovementioned definition U/s 415 IPC it can be deduced that in order to attract allegations of "cheating", following ingredients must exist :
(i) deception of a person;
(ii) (A) fraudulent or dishonest inducement of that person,
(a) to deliver any property to any person; or,
(b) to consent that any person shall retain any property, STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 8 / 18 (B) intentional inducing that person to do or omit to do any thing,
(a) which he would not do or omit if he was not so deceived, and,
(b) such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
24. Section 420 IPC reads as under :
"420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
25. After going through the abovementioned definition as provided U/s 420 IPC, it can be said that in order to attract Section 420 IPC, following essential ingredients must be shown to be existed :
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 9 / 18 sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
26. After going through the essential legal ingredients which are required to be proved for commission of the offence U/s 420 IPC, the Court deem it fit to discuss here the settled legal principals as decided by Hon'ble Apex Court.
26.1 In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
26.2 In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
26.3 In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 10 / 18
27. After going through the settled legal principal with respect to commission of cheating and coming to the factual matrix of the case, it is observed by the court that throughout the prosecution evidence the only effort which had been made by prosecution is towards proving the commission of the offence of forgery and no efforts have been made to substantiate the factum of commission of the offence U/s 420 IPC. There is no proof or evidence to substantiate or even to give hint towards commission of offence of cheating. In the absence of any evidence, the Court is bound to give finding that prosecution has miserably failed to prove the commission of the offence U/s 420 IPC.
28. The second set of offence for which the accused has been charged with are Sections 468/471 IPC. All these sections punish commission of forgery. Before starting the discussion on the commission of the offence U/s 468/471 IPC, it would be relevant to take note of Section 463 and 464 of IPC which defines commission of offence of forgery.
29. 463 IPC defines "forgery" which reads as under : Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 11 / 18
30. 464 IPC defines "making a false document" which reads as under : A person is said to make a false document or false electronic record First Who dishonestly or fraudulently
(a) makes signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) Affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, With the intention of causing it to be believed that such document or part of document, electronic record or digital signature was make, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 12 / 18 electronic record to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of unsoundness of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alterations.
31. Basic ingredients of the offence under Section 468 and 471 IPC are that there should be forgery under Section 463 and forgery in turn depends upon creation of a false document as defined in Section 464 IPC.
32. Section 471 IPC reads as under :
471. Using as genuine a forged [document or electronic record].Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
32.1 As far as commission of the offence U/s 471 IPC is concerned, the Court has observed that only allegation against the accused persons is that they have forged the document. There is not even a single allegation to the effect that he had used such forged document as genuine. There is not even a single evidence to substantiate the commission of offence U/s 471 IPC. So, it can be STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 13 / 18 deduced without hesitation that commission of the offence U/s 471 IPC has also not been proved against accused.
33. Section 468 IPC provides:
"468. Forgery for purpose of cheating. Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
34. To substantiate the commission of offence U/s 468 IPC, the prosecution was duty bound to prove the following ingredients :
1. The accused is found to be possession of some documents.
2. The impugned documents are forged documents.
3. The accused forged these documents and the forgery is for the purpose of cheating.
35. After going through the settled legal principal which are required to prove the commission of the offence of forgery U/s 468 IPC and coming to the factual matrix of the present case, the court deem it fit to mention here that the prosecution case is that accused Yogita Khatwani got prepared a forged identity card for getting a vehicle purchased by her transferred in her name. The documents pertaining to ownership of car produced by her were found to be forged. The documents on the basis of which the car was transferred in her STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 14 / 18 name were also investigated by the police. During course of investigation it was found that one identity card issued by Election Commission of India was in her name but was having photograph of another woman. It was also found that accused Vijay Kumar Mata had got the vehicle transferred in the name of accused Yogita Khatwani. He disclosed that voter ID card was prepared by Ashish Hans. On this disclosure, house of accused Ashish Hans was searched and a computer was seized. It was sent for FSL. The revisional court has discharged accused Ashish Hans on the ground that statement of coaccused is not admissible unless there is recovery. Further it has been held that there is no recovery of image of voter ID card from the computer seized from his premises. Since, accused Ashish Hans, who is alleged to have created the forged documents has been discharged by the court, the court is of the opinion that there is no evidence against accused Yogita Khatwani and Vijay Kumar Mata for offence u/s 468 IPC. So, it can be deduced without hesitation that commission of the offence U/s 468 IPC has also not been proved against accused.
36. The third set of offence for which the accused has been charged with are Sections 120B IPC. Section 120A of IPC defines criminal conspiracy as :
Section 120A: Definition of criminal conspiracy:When two or more persons agree to do, or cause to be done (1) and illegal act, or (2) and act, which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 15 / 18 Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. ExplanationIt is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
36.1 Section 120B reads as under :
120B. Punishment of criminal conspiracy.(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
37. In Ajay Aggarwal Vs. Union of India & Ors. 1993 (3) SCC 609 Hon'ble Apex Court indicated the conspiracy is having conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 16 / 18 ultimate aim of the' agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy.
38. In Mohammad Usman Mohammad Hussain Maniyar & Ors. Vs. State of Maharashtra (1981) 2 SCC 443 it was held that for an offence under Section 120B IPC, the prosecution need not necessarily prove that the conspirator expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication.
39. In R.K. Dalmia Etc. Vs. Delhi Administration 1963 SCR (1) 253 Hon'ble Supreme Court emphasized that it is not necessary that each member of a conspiracy must know all the details of conspiracy.
40. To find an accused guilty under Section 120B IPC, the prosecution should prove that there was direct meeting of the minds of two or more accused. In the light of principles enunciated by the Apex Court, this Court is of the view that the prosecution had not adduced any evidence, direct or indirect, to show that both the accused had conspired together to get the car transferred in the name of accused Yogita Khatwani on the basis of forged documents. There is no evidence against accused Yogita Khatwani and Vijay Kumar Mata for offence u/s 120B IPC.
STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 17 / 18
41. In the present case, there is not even an iota of evidence to show that accused persons prepared any forged document. Hence, in view of the discussion made above and after scanning the entire evidence, the prosecution has miserably failed to prove the case against the accused persons beyond reasonable doubt. Accordingly, accused persons Yogita Khatwani and Vijay Kumar Matta are entitled to benefit of doubt and are accordingly acquitted of the offences u/s 420/468/471/120B IPC.
ANNOUNCED IN THE OPEN (Apoorv Gupta)
COURT ON 29th OCTOBER, 2022 MM02, Central District
Tis Hazari Courts/29.10.2022
This judgment consists of 18 pages and each and every page of this judgment is signed by me.
(Apoorv Gupta) MM02, Central District Tis Hazari Courts/29.10.2022 STATE Vs. YOGITA KHATWANI & ANR FIR No. 380/2006 PS TIMARPUR PAGE NO. 18 / 18