Delhi District Court
Cbi vs ) Naresh Chandra on 28 August, 2014
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS : DELHI.
CBI No. : 56/11
RC No. : 8(A)/2002/CBI/ACB/New Delhi
Under Sections : 120B/420/465/466/467/468/471 IPC
13(2) read with 13(1)(d) PC Act, 1988.
CBI
Versus
1) Naresh Chandra
S/o Late Sh. Jagdish Chandra
R/o E152, Saket, New Delhi17.
2) Harish Chand Verma
S/o Late Sh. Jai Mal Singh Verma
R/o H. No. 90, Gautam Puri,
Village and Post Office Dadri,
District Ghaziabad, Uttar Pradesh. ... Accused
Date of institution of case : 15.10.2004
File received on transfer on : 03.05.2011
Date of reserving judgment : 13.08.2014
Date of pronouncement of judgment : 28.08.2014
J U D G M E N T
I. CASE OF THE PROSECUTION :
1. The FIR in the present case was registered on a complaint lodged by Mr. Jayant Kashmiri, the then Inspector, CBI, New Delhi alleging therein that accused Naresh Chandra (A1), Proprietor of CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 1 of 48 Nidhi Builders, had entered into a criminal conspiracy with coaccused Harish Chand Verma (A2), the then Superintendent, CE Branch, DDA, Vikas Sadan, New Delhi and in furtherance of the criminal conspiracy they got the leasehold rights of property no. B7/105A, Safdarjung Development Area, New Delhi (hereinafter referred to as 'the said property'), converted into freehold from the DDA on the basis of forged documents.
2. The case of the prosecution, in brief, is that PW11 Mohan Jain used to frequent Delhi on account of his business trips. He was introduced to accused Naresh Chandra (A1) by a common friend. Mohan Jain expressed his desire to purchase a DDA plot. Around November1993, accused Naresh Chandra (A1) telephonically informed Mohan Jain that one DDA plot i.e. the said property was to be auctioned by the DDA. Since Mohan Jain himself could not come to Delhi, he sent his son Vishal Jain to attend the said auction. Vishal Jain attended the auction and made highest bid for the said property for Rs.62,05,000/. The bid was knocked down in his favour.
3. In February1994, Mohan Jain and his wife Deepika Jain came to Delhi and got the leasedeed executed in their favour in the DDA office wherein their signatures were attested by accused Harish Chand Verma (A2). On 09.07.1994, accused Naresh Chandra (A1) went to the residence of Mohan Jain at Mumbai alongwith some CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 2 of 48 Notary or Registrar and got their signatures on certain General Power of Attorney and Special Power of Attorney under pressure. Accused Naresh Chandra (A1) got an application form seeking conversation of the said property from leasehold to freehold filled up by accused Harish Chand Verma (A2) and deposited the same in the DDA office alongwith relevant documents like Affidavit, Indemnity Bond, Undertakings, Copy of perpetual Lease Deed, prescribed fees/challan, Form D on 09.12.1994. The required conversion fee was paid. The signatures of Mohan Jain and Deepika Jain appearing on all the abovesaid documents were found to be forged which was also confirmed by GEQD vide their letter dated 09.02.2004.
4. The said application for conversation was processed in the Land Sales Branch Section right from the Dealing Hand to Assistant Director. After getting the dues cleared from the Account Section, Sh. M. C. Singhal, Assistant Director, Lease Administration Branch, issued a letter dated 21.02.1995 to Mohan Jain and Deepika Jain at their residence i.e. B7/104A, SDA Extension, New Delhi requiring them to submit their four specimen signatures and photographs on a sheet duly attested by a gazetted officer as the same were not submitted alongwith the application for conversion. In response thereto, four forged signatures appended on a sheet but genuine photographs of Mohan Jain and Deepika Jain duly attested by CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 3 of 48 accused Harish Chand Verma (A2) were submitted in the DDA's Lok Adalat.
5. A letter dated 21.03.1995 was issued in the name of Mohan Jain and Deepika Jain alongwith four unsigned copies of the Conveyance Deed forms requiring them to deposit the same in the DDA office after getting them stamped from the Collector of Stamps so that the Conveyance Deed could be executed. The said stamped Conveyance Deed copies were deposited in the DDA office vide letter dated 04.05.1994. In response thereto, a letter dated 09.05.1995 was issued by Lease Administrative Officer, LA Branch, in the name of Mohan Jain and Deepika Jain calling them for execution of the Conveyance Deed in respect of the said property.
6. On 10.05.1995 accused Naresh Chandra (A1) appeared in the DDA office with a Special Power of Attorney bearing forged signatures of Mohan Jain and Deepika Jain and sought execution of the Conveyance Deed in the capacity of Special Power of Attorney Holder of Mohan Jain and Deepika Jain. PW12 Sh. M. C. Singhal asked accused Naresh Chandra (A1) to bring one witness who knew him as well as the original allottees and, consequently, accused Naresh Chandra (A1) brought accused Harish Chand Verma (A2) who told Sh. M. C. Singhal that he knew both the parties and also identified the signatures of Mohan Jain and Deepika Jain on the Special Power of CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 4 of 48 Attorney. After the property was converted to freehold from lease hold, accused Naresh Chandra (A1) got the property transferred in his name vide Sale Deed dated 27.11.1995 executed by his wife as Special Power of Attorney Holder of Mohan Jain and Deepika Jain on the basis of genuine Special Power of Attorney executed by Mohan Jain and Deepika Jain in her favour.
7. As per prosecution, accused Naresh Chandra (A1), instead of applying for conversion of the property from leasehold to freehold in his own name by depositing an extra surcharge 33.33% apart from the conversion fee, sought conversion of the property in the name of original allottees i.e. Mohan Jain and Deepika Jain so that he did not have to deposit the extra surcharge of 33.33% of the conversion fee. Thus, accused Naresh Chandra (A1) caused loss to the DDA to the extent of that 33.33% surcharge amount.
8. On these allegations, the chargesheet was filed against both accused for having committed offences punishable under Sections 120B/420/465/466/467/471 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C. Act').
II. CHARGES FRAMED :
9. On the above allegations, charges were framed vide order dated 17.04.2006 passed by Ms. I. K. Kochhar, learned Special Judge, CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 5 of 48 CBI (as her Ladyship then was) against both the accused for having committed offences punishable under Sections 120B IPC read with Ss. 420/465/466/467/468/471 IPC r/w S. 13(2) r/w 13(1) (d) of the P.C. Act; against accused Naresh Chandra (A1) for having committed offences punishable under Sections 420/465/466/467/468/471 IPC and against accused Harish Chand Verma (A2) for having committed offences punishable under Section 420 IPC and S. 13 (2) r/w 13 (1) (d) of the P.C. Act to which both accused pleaded not guilty and claimed trial. They were accordingly put to trial.
III. PROSECUTION WITNESSES :
10. Trial proceeded and in the course of trial, the prosecution, in order to substantiate its case against the accused, examined nineteen witnesses in all who may be clubbed in four groups for convenience. The four groups are as hereunder :
A) Prime Witnesses B) Witnesses from DDA.
C) Witnesses from Bank.
D) Others.
11. PRIME WITNESSES :
i) PW11 Mohan Kapoor Chand Jain
ii) PW13 Deepika Jain
12. PW11 Mohan Kapoor Chand Jain testified that he is in the CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 6 of 48 business of trading in plastic under the name and style of M/s Indo Plas at Mumbai since 1972. In the year 1992, he was introduced to accused Naresh Chandra (A1) through a common friend namely Nagesh Pathak. He used to come to Delhi for attending exhibitions / seminars relating to Plastic Industry. He told accused Naresh Chandra (A1) that one residentialcumcommercial flat was needed by him. In November, 1993, he got a call from A1 that some property in his area was under auction. He was unable to attend the auction on 08.12.1993 because of his foreign trip. He asked A1 to purchase the plot in his own name to which he (A1) declined stating that he had already one plot in his own name. He was asked by A1 to send his son Vishal Jain for that purpose. It was made clear to A1 that he had no funds to purchase the plot. The plot bearing number B7/105A, Safdarjung Enclave, New Delhi was purchased by A1 in the joint name of PW11 Mohan Jain and and his wife PW13 Deepika Jain by projecting them to be the owners of the said plot. The sale price of the said plot was got transferred by A1 from his account in the account of Vishal Jain.
13. PW11 further testified that residentialcumcommercial flat was needed by him and not by A1. He proved the original Perpetual LeaseDeed bearing his signatures as well as signatures of his wife in respect to said plot as Ex.PW11/A [Note: Separate notarised copy and another copy of the same document have also been CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 7 of 48 exhibited as Ex.PW3/A2 & Ex.PW15/X1]. He categorically denied that the application form Ex.PW3/A1 for conversion of leasehold property into freehold property bears his signature as well as of his wife and the said form was not filled up by him. He further denied the execution of application / challan, Indemnity Bond Ex.PW14/B, Undertakings Ex.PW14/C, Affidavit Ex.PW14/D, Specimen Signatures Ex.PW7/C, 7/D and Special Power Attorney Ex.PW11/BB.
14. He further testified that before sending his son Vishal Jain, it was made clear to A1 that he was not interested in any plot and, as such, a request for flat only was made in lieu of the plot. A1 had agreed to give him a flat at cost price. A bank account in Vishal's name was opened. A1 had arranged the funds for purchasing the plot by depositing the money in Vishal's account.
15. He further testified that in the second week of February, 1994, he and his wife were asked by A1 to accompany him to the office of DDA for the purpose of Perpetual LeaseDeed. In June/July 1994, A1 came to Bombay alongwith his wife and one Registrar and pressurized him to give signatures on certain documents which included GPA, SPA, Will etc. Those documents were signed by him and his wife under pressure.
16. During his crossexamination, PW11 was confronted with his statement under Section 161 Cr.P.C. (Ex.PW11/DA) wherein CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 8 of 48 it is not recorded that he had asked A1 to purchase a plot in his own name as he was unable to attend the auction due to his foreign trip. It was admitted that the bank account of Vishal Jain has not been closed and amounts of Rs.28,00,000/ and Rs.26,05,000/ were given to Vishal Jain through cheques. It was further admitted by PW11 that when the Perpetual LeaseDeed Ex.PW11/A was executed, he and his wife had gone to the office of DDA. The execution of Affidavit Ex.PW11/K was also not denied by PW11. PW11 further admitted that he did not lodge any complaint with the Police or any other Authority after A1 allegedly got signed certain papers including Ex.PW11/DB from him under pressure. He further admitted that no application / complaint was made to DDA for cancellation of documents Ex.PW11/DB and Ex.PW11/A.
17. PW11 further admitted during his crossexamination that no complaint was lodged by him with the Bank regarding opening of a bank account in the name of his son Vishal without his consent by A1. He further admitted that no document is on record to show that his son Vishal was minor at the time of auction. It was further admitted by PW11 that neither he nor his son Vishal had suffered any monetary loss in relation to the plot and he did not lodge any complaint with the DDA / Police in relation to the fact that he and his wife were projected as owners of the plot whereas he had nothing to CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 9 of 48 do with the said plot. PW11 did not seek cancellation of auction, SaleDeed and ConveyanceDeed. It was further admitted by PW11 that no complaint was made with the Ration Card Department in relation to the fact that A1 got issued a false Ration Card in his name. It is further admitted by PW11 in his crossexamination that he never made any complaint / request to DDA that the Perpetual LeaseDeed executed in his name bore false address i.e. B7/104A, Safdarjung Development Area, New Delhi. PW11 further admitted in his cross examination that he never sought cancellation of genuine Special Power of Attorney (Ex.PW11/DX1) and General Power of Attorney (Ex.PW11/DX2) executed by him and his wife and he also did not file any suit seeking cancellation of the Sale Deed executed in favour of A1.
18. PW13 Ms. Deepika Jain has corroborated the testimony of PW11. She testified that A1 came to their residence at Mumbai alongwith his wife and one Notary / Registrar. A1 asked them to sign GPA, SPA, Agreement to Sell, Will etc. which were signed under pressure. She produced the photocopy of Agreement to Sell which was marked as Mark 13/Z (Collectively). In response to the Court question, she replied that the aforesaid documents were not available at the time of investigation as the same was found 78 days ago while shifting her godown.
CBI No.56/11CBI Vs. Naresh Chandra & Another Page No. 10 of 48
19. During her crossexamination, she was confronted with her statement Ex.PW13/DA recorded under Section 161 Cr.P.C. wherein it is not recorded that it was made clear to A1 that they intended to purchase a flat and they have no capacity to buy a plot. She was also confronted with her statement Ex.PW13/DA where it is not recorded that they had told A1 that they have no money to purchase the plot or to raise the construction thereon. She was confronted with her abovereferred statement on other aspects also which shows that she made improvements in her statement before the Court. She admitted that during investigation it was not told to the CBI that A1 had also got their signatures on the Agreement to Sell and Will. It was admitted by her in her crossexamination that she never revoked / cancelled the General Power of Attorney / Special Power of Attorney executed by them in favour of Ms. Shashi Singhal. She also did not hand over any proof in relation to his son being minor at the time of opening the bank account. It was also admitted by PW13 that Special Power of Attorney (Ex.PW11/DX1) and General Power of Attorney (Ex.PW11/DX2) bear her genuine signatures and she never executed any document revoking the same.
20. WITNESSES FROM DDA :
i) PW3 Bishamber Nath Chandna,
ii) PW7 Satya Pal, CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 11 of 48
iii) PW9 Narottam Sharma,
iv) PW12 Mehar Chand Singhal,
v) PW14 Nand Lal,
vi) PW15 D. P. Dwevidi,
vii) PW16 Yashpal Singh,
21. PW3 Bishamber Nath Chandna testified that on 11.11.2003 he was working in LAB (H) as Assistant Director in DDA. He proved that application for conversion from leasehold to freehold in file Ex.PW3/A (Pages 63 to 72) is filledin in the handwriting of accused Harish Chand Verma (A2). He proved the said application as Ex.PW3/A1 and also identified the signatures of accused Harish Chand Verma (A2) on Ex.PW3/A2 and Ex.PW3/A3. He also identified the signature of accused Harish Chand Verma (A2) on notesheet page 19/N (Ex.PW7/J). During his crossexamination, PW3 admitted that aforesaid documents were not signed or executed in his presence.
22. PW7 Satya Pal deposed that in the year 2004 he was working as Assistant Director, Commercial Land, DDA, Vikas Sadan, New Delhi. One application Ex.PW3/A1 was received from Deepika Jain and Mohan Jain for conversion of property from leasehold to freehold. In response to the letter Ex.PW7/B, four photographs with specimen signatures duly attested by the then Superintendent (CE), CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 12 of 48 DDA were submitted in Lok Adalat. The file for issuance of Conveyance Deed was processed by him and four forms of Conveyance Deed were sent to the allottees for the purpose of stamping. He further deposed that on completing the formalities, he recommended for the execution of the Conveyance Deed and, thereafter, the same was executed. He proved the Conveyance Deed as Ex.PW7/K. [Note: Another copy of the same is also exhibited as Ex.PW15/X2]
23. During his crossexamination, he admitted that full conversion charges in respect of the said property were paid as per the Accounts Branch of the DDA. He further admitted that Conveyance Deed was executed on behalf of the allottees through SPA and the Undertaking was given by the SPA Naresh Chandra (A1).
24. PW9 Narottam Sharma testified that in the year 2004 he was working as Assistant Director (Vigilance), DDA, Vikas Sadan, New Delhi. He is a formal witness who has proved his noting at page 14/N in file D4 (Ex.PW3/A) vide which he had sent this file to the Record Room for the removal of original lease deed, SubRegistrar's endorsement and site plan which were part and parcel of the lease deed. He proved his noting in this regard as Ex.PW9/A. During his crossexamination, he admitted that he has no personal knowledge of the present case.
CBI No.56/11CBI Vs. Naresh Chandra & Another Page No. 13 of 48
25. PW12 M.C. Singhal is a material witness. He testified that he dealt with the file Ex.PW3/A in the year 1995. He testified that alongwith the application for conversion of the property from leasehold to freehold requisite documents i.e. Indemnity Bond, Undertaking, Affidavits etc. were also filed. The specimen signatures alongwith the photographs were filed subsequently. These documents were submitted in the Bank and, thereafter, the same were processed and checked as per rules and guidelines in the Lease Administration Branch of DDA. The matter was approved by the Competent Authority and Conveyance Deed Ex.PW7/K was executed.
26. He further testified that SPA Naresh Chandra (A1) appeared before him for the execution of conveyance deed and informed him that the original allottees were sick. He asked him that there was enough time and the time could further be extended. A1 told him that he had already brought the witnesses and, being SPA, he was competent to execute the Conveyance Deed. A1 was asked as to why he was in hurry. A1 was asked to bring at least one witness who could identify the original allottees. A1 immediately brought A2 Harish Chand Verma. A2 made endorsement in the file to the effect "I know the lessees and SPA personally and identify their signatures made on SPA". As per PW12, since the signatures were attested by a Gazetted Officer, there was no reason to disbelieve those signatures. CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 14 of 48
27. During his crossexamination, PW12 admitted that in case of a GPA Holder having a valid Agreement to Sell and proof of possession in his name, he would be required to pay an additional sum of 33.33% of the conversion charges which were to be paid by the original allottees. He further admitted that 33.33% of this conversion charges would amount to Rs.50,360/. Had the GPA Holder satisfied all the aforesaid conditions, then the property would be transfered in his name and there would be no requirement of his getting Sale Deed executed from the original allottees. He further admitted that no communication was received from the allottees / owner of the property regarding their change of address after the execution of the Perpetual Lease Deed. He also admitted that copy of the Ration Card in the name of the allottees is there alongwith the Perpetual Lease Deed.
28. PW14 Nand Lal testified that in the year 1994 he was posted in Lease Administration Branch, DDA, Vikas Sadan, New Delhi. He has corroborated the testimony of PW7 Satya Pal. He further testified that vide challan Ex.PW14/K an amount of Rs. 1,52,090/ was deposited on behalf of Deepika Jain and Mohan Jain. The documents i.e. Indemnity Bond Ex.PW14/B, Undertaking Ex.PW14/C and Affidavit Ex.PW14/D were submitted on behalf of Deepika Jain and Mohan Jain. In response to letter dated 21.02.2005, four specimen signatures and photographs duly attested by Notary CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 15 of 48 Public were submitted. He further testified that after completing all the formalities, letter dated 09.05.1995 (Ex.PW7/H) was issued under his signature asking the parties to attend the DDA office alongwith the witnesses having proper identification in GPA. However, in this case, the clause of GPA was not applicable and the concerned parties were to appear in the office.
29. During his crossexamination, PW14 testified that we ascertain whether the allottees are in possession are not only on the basis of documents Ration Card etc. submitted by the allottees. Ration Card in the name of Mohan Jain and Deepika Jain was submitted as a proof of possession by the allottees. No communication was received regarding change of address and full conversion charges were paid which were applicable to the original allottees. He further admitted that no loss has occurred to the DDA. It was also admitted by PW14 that a GPA holder can apply for conversion of the property from leasehold to freehold provided that he furnishes a proof of physical possession and an Agreement to Sell duly executed in his favour by allottees.
30. PW15 D. P. Dwivedi testified that in February, 2004 he was working as Director, Residential Land, DDA, Vikas Sadan, New Delhi. He has also corroborated the testimony of PW7 Satya Pal. He testified that plot no. B7/105A, SDA, New Delhi was allotted to CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 16 of 48 Deepika Jain and Mohan Jain by way of auction. He further deposed that after completing the formalities, possession of the aforesaid plot was handed over to Mohan Jain and Deepika Jain on 14.02.1994. He proved the letter in this regard as Ex.PW15/B.
31. During his crossexamination, PW15 admitted that a GPA holder can apply for conversion of property from leasehold to freehold provided he is in physical possession of the property under a validly executed Agreement to Sell and he has also to submit a proof of possession like Possession Letter, Ration Card etc. He further admitted that letters Ex.PW11/G and Ex.PW11/P written by Deepika Jain were addressed to Deputy Director, DDA, New Delhi requesting for handing over possession of the plot in their favour and, consequently, vide letter dated 14.02.1994 (Ex.PW15/B) possession of the plot was handed over to them. He further admitted that as per record, the possession of the plot was never handed over by Mohan Jain and Deepika Jain in favour of A1 Naresh Chandra or anybody else. It was further admitted that no intimation regarding change of address as mentioned in the Lease Deed and other documents was ever received. He further admitted that no loss was caused to the DDA as full conversion charges were paid as per the policy of the DDA. It was also admitted by him that the original allottees never intimated the DDA that they had sold out the property.
CBI No.56/11CBI Vs. Naresh Chandra & Another Page No. 17 of 48
32. PW16 Yashpal Singh is a formal witness. He proved the seizure memo regarding handing over the file Ex.PW3/A to PW19 Jayant Kashmiri, Inspector, CBI, New Delhi vide seizure memo Ex.PW16/1.
33. WITNESSES FROM BANK :
i) PW4 Uttam Chand Ahuja,
ii) PW6 Hamad Bava,
iii) PW8 Ashok Kumar,
34. PW4 Uttam Chand Ahuja proved the seizure memo vide which one ledger sheet pertaining to account number 9704 in the name of accused Naresh Chandra (A1) was seized vide memo Ex.PW4/A. He also proved the ledger sheet Ex.PW4/A1. He also testified that account number 9704 was opened in February, 1992. He further proved his letter Ex.PW4/A2 dated 05.04.2004 vide which the documents mentioned therein were handed over to CBI. He also proved the account opening form as Ex.PW4/A3; specimen signature card as Ex.PW4/A4; statement of account for the period 29.01.1999 to 30.08.2000 as Ex.PW4/A5 and the certificate issued under under Section 2A of Bankers' Book Evidence Act, 1891 as Ex.PW4/A6.
35. PW6 Hamad Bava testified that in the year 2004 he was posted as Senior Branch Manager of Vijaya Bank, R. K. Puram Branch, New Delhi. He proved the statement of accounts pertaining to CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 18 of 48 A1 Naresh Chandra, Vishal, Shashi Singhal, M/s Nidhi Promoters Private Limited and M/s Nidhi Builders. He deposed that account of Vishal Mohan Jain was opened on the introduction of A1 and he proved the account opening form as Ex.PW6/A8. He also proved various entries i.e. X1 to X8 in the statement of account of Vishal Mohan Jain which is Ex.PW6/A5.
36. During his crossexamination, PW6 admitted that cheque dated 26.04.1994 bearing no. 405557 for a sum of 62,20,000/ drawn in favour of Naresh Chandra (A1) from the account of Vishal Jain was dishonoured because the amount exceeded the arrangement. He proved the memo in this regard as Ex.PW6/DA and cheque as Ex.PW6/DB.
37. PW8 Ashok Kumar is a formal witness who deposed that he was working as Manager in Oriental Bank of Commerce, Palam Vihar Branch, Gurgaon, Haryana. He proved the statement of account of Naresh Chandra (A1) as Ex.PW8/A. He has corroborated the testimony of PW4.
38. OTHER WITNESSES :
i) PW1 Rakesh Kumar (Specimen Signatures),
ii) PW2 Manoj Kumar (Specimen Signatures),
iii) PW5 Ramesh Chander (Specimen Signatures),
iv) PW10 Madhukar Gupta (Prosecution Sanction).CBI No.56/11
CBI Vs. Naresh Chandra & Another Page No. 19 of 48
v) PW17 Jayant Kashimiri (Complainant),
vi) PW18 Naveen Kumar Jain (Investigating Officer),
vii) PW19 T. Joshi (GEQD Report)
39. PW1 Rakesh Kumar is a formal witness in whose presence specimen handwriting of Mohan Jain and Deepika Jain were obtained and he proved the same as Ex.PW1/A1 to Ex.PW1/A14 & Ex.PW11/AA5 and Ex.PW1/A15 to Ex.PW1/A27.
40. PW2 Manoj Kumar is also a formal witness in whose presence specimen handwriting of accused Naresh Chandra (A1) was obtained and he proved the same as Ex.PW2/A1 to A20.
41. PW5 Ramesh Chander is also a formal witness who testified that specimen signatures and handwritings of accused Harish Chand Verma (A2) were obtained in his presence and he proved the same as Ex.PW5/A1 to Ex.PW5/A48.
42. PW10 Madhukar Gupta testified that he accorded sanction for prosecution of Harish Chand Verma (A2) vide sanction order Ex.PW10/A. During his crossexamination, he denied the suggestion that rough typed draft of the sanction was received from CBI office.
43. PW17 Jayant Kashimiri is the complainant who has deposed that he was investigating officer of FIR No. RC44A/2000/DLI registered at CBI, New Delhi and during investigation of that case it CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 20 of 48 was observed that A1 in conspiracy of unknown official of the DDA had managed to change the dimension of the said property and also used the name of Mohan Jain and Deepika Jain as a front for getting allotted the said property in their names. He proved his complaint in this regard as Ex.PW17/A, the FIR in the present case as Ex.PW17/B and seizure memo Ex.PW16/A. He further testified the original of SPA (Mark PW17/X) and GPA (Mark PW17/Y) were filled in aforesaid FIR No. RC44/2000/DLI pending in the Court of Special Judge (CBI) at Saket District Courts, New Delhi.
44. During his crossexamination, he testified that he does not remember on what basis he had written in his complaint that during investigation of RC No. 44A/2000/DLI it had emerged that A1 of Nidhi Builders had secured the said property by using Mohan Jain and Deepika Jain as front with an intention to circumvent the regulation of Delhi Urban Land Ceiling Act. He further testified that he does not remember as to on what basis it was mentioned by him that A1 had dishonestly and fraudulently got the said property converted from lease hold to freehold from the DDA through forged / bogus SPA with the connivance of DDA officials. For other facts also as mentioned in his complaint, the same was his reply that he does not remember the basis on which those facts were mentioned by him in the complaint. He further admitted that he does not remember if he had verified the CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 21 of 48 fact that any loss was caused to any private person or the Government Authority.
45. PW18 Naveen Kumar Jain is the Investigating Officer of the present case who has deposed that during investigation he recorded the statements of the witnesses; seized documents; obtained specimen handwriting of Naresh Chandra (A1), PW11 Mohan Jain, PW13 Deepika Jain and Harish Chand Verma (A2). The questioned documents alongwith specimen signatures and handwriting of aforesaid persons were sent to GEQD for seeking expert opinion and after completing the investigation, the chargesheet was filed in the Court.
46. During his crossexamination, PW18 testified that the said property was handed over and received by Mohan Jain and Deepika Jain vide Ex.PW15/B on 14.02.1994. He further deposed that he had made enquiries from the Ration Card Department as to whether the Ration Card Ex.PW11/DA1 was genuinely issued in favour of Mohan Jain and Deepika Jain but the records in respect thereof were not traceable. However, he admitted that the said fact has not been mentioned by him in the chargesheet. He further admitted that during investigation he did not come across any document which could be termed as Agreement to Sell executed by Mohan Jain and Deepika Jain in the favour of A1. He further admitted that a GPA holder CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 22 of 48 cannot seek conversion from leasehold to freehold unless he is in possession of a plot under a validly executed Agreement to Sell. He further admitted that he has not mentioned in the chargesheet of any complaint lodged by Mohan Jain and Deepika Jain during the period 15.02.1994 to 12.05.2003 against Naresh Chandra (A1) regarding getting their signatures on documents under pressure. He further admitted that in the chargesheet he has not mentioned that he tried to find out / trace the Notary / Registrar who had accompanied A1 to Mumbai and got the signatures of Mohan Jain and Deepika Jain on certain documents under pressure. He further admitted that no complaint was lodged by Mohan Jain and Deepika Jain seeking cancellation of Conveyance Deed on the ground that the same was executed by way of forged documents or for the cancellation of the Lease Deed on the ground that signatures were obtained thereon under pressure. It was also admitted by him that no request was made to the DDA for the cancellation of the Lease Deed in respect of the said property. It was further admitted by him that no document was furnished by Mohan Jain and Deepika Jain that their son was minor at the time of auction and, as such, no document has been placed on record to this effect. He further admitted that the factum of execution of Agreement to Sell in favour of A1 in relation to the said property was not disclosed to him during investigation by Mohan Jain and CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 23 of 48 Deepika Jain. PW18 admitted that SPA Ex.PW11/BB was purchased in the name of Deepika Jain but no enquiries were made from the Stamp Vendor in this regard. IO further admitted that statements of Notaries who had attested SPA Ex.PW11/BB, Ex.PW14/B, Ex.PW14/C and Ex.PW14/D are not on record. He further admitted that A1 Naresh Chandra, A2 Harish Chand Verma and Vishal Jain were not asked to sign as Mohan Jain and Deepika Jain and such signatures were not sent to GEQD to ascertain as to whether they had forged the signatures in the DDA file.
47. PW19 T. Joshi is the handwriting expert who proved his reports as Ex.PW18/E and Ex.PW18/G and reasons thereon as Ex.PW19/A and Ex.PW19/B respectively. During his cross examination, it was admitted by PW19 that no writings of A1 and A2 were sent to him wherein they had signed as Mohan Jain and Deepika Jain seeking his opinion as to whether they had forged the signatures of Mohan Jain and Deepika Jain. It was further admitted by him that no specimen signatures of Vishal Jain were sent to him for comparing the same with the questioned signatures of Mohan Jain and Deepika Jain.
IV STAND OF ACCUSED UNDER SEC 313 CR.P.C.
48. The statements of accused Naresh Chandra (A1) and Harish Chand Verma (A2) under Section 313 Cr.PC were recorded CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 24 of 48 when a chance was given to explain the incriminating evidence against them.
49. A1 has denied the case of the prosecution and has claimed that he has been falsely roped in the present case. As per accused Naresh Chandra (A1), a false complaint was lodged by the complainant. PW11 had asked not for a flat but for a plot. He had requested A1 to inform about the availability of some plot for auction in Delhi as he was seriously interesting in purchasing the plot. Mohan Jain and Deepika Jain were the real owners of the said property and, subsequently, they also got the Lease Deed executed in their names from the DDA and that is why they from their own free will had signed those documents so that the Lease Deed and Conveyance Deed could be executed in their names. They were throughout aware about the transactions and events which transpired in the DDA in relation to the said property and that is why they have not lodged any complaint against A1 or any other person with any authority. The Conveyance Deed was also executed by DDA in their favour through their special attorney i.e A1 at their instance and instructions. They and their son had taken a loan of Rs.74,20,000/ from A1 to purchase the said property in auction and, subsequently, to raise construction thereon. Out of the said loan amount only Rs.12,00,000/ were returned by Mr. Vishal Jain. At their instance their son Vishal Jain issued cheque CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 25 of 48 bearing no.405557 dated 26.4.1994 drawn on Vijaya Bank for Rs. 62,20,000/ in favour of A1 towards the part payment of the aforesaid loan amount. The said cheque got dishonoured when the same was presented by A1 for encashment with the banker. When A1 demanded back the loan amount in relation to which the above said cheque was dishonoured, they sought some time to make the payment thereof as they were undergoing financial hardship. After some time elapsed, A1 again demanded back his loan amount. On such demands, they told A1 that they would not be able to return the loan but in lieu of the same, they would sell the plot in question to A1. To that end, they had executed GPA and SPA in favour of A1. Even after much insistence exercised by A1, they did not execute any Agreement to Sell or Possession Letter in favour of A1 because they knew that without having Agreement to Sell and the Possession Letter A1 could not have applied for the conversion of the property in his favour from leasehold to freehold only on the basis of the GPA and SPA. When A1 again requested them to execute the Possession Letter and the Agreement to Sell in favour of A1, they gave A1 a lullaby stating that there was no need for execution of the said documents as they would first get the property freehold in their names and then would execute a sale deed in respect of the said property in favour of A1.
50. PW11 Mohan Jain and PW13 Deepika Jain themselves CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 26 of 48 got prepared false documents bearing their false signatures and introduced them in the file of the said property lying with the DDA. Mohan Jain and Deepika Jain themselves gave the SPA Ex.PW11/BB bearing their false signatures to A1 for execution of the Conveyance Deed. A1 took the same to DDA office and at their instance and instructions got the Conveyance Deed executed. They prepared false documents and introduced the same in the file of the said property in DDA because A1 knew if at any stage any forgery is detected regarding the execution of the documents in respect of the Conveyance Deed then the same would be null and void in terms of clause (iv) of the conveyance deed. Their plan was that once the Conveyance Deed thus executed on the basis of false documents got declared null and void, they would execute fresh GPA and SPA alongwith Agreement to Sell and Possession Letter in favour of some third party against consideration so that they can apply for fresh conversion in their favour on the basis of above said documents seeking freehold of the said property in the favour of A1. With this scheme in mind, they had never made any complaint to the DDA stating that they were not the real owners of the said property and were only the projected owners. As their malafide designs to cheat A1 of his hard earned money failed and they had to sell off the property to A1 and A1 being entitled for the same in lieu of his loan amount, they have deposed against A1 in CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 27 of 48 the Court.
51. A2 has also denied the case of the prosecution and has claimed that he has been falsely roped in the present case. As per accused Harish Chand Verma (A2), he is falsely implicated in this case and he had never forged and fabricated any document. He had never obtained any pecuniary advantage or illegal gratification or any benefit. He was awarded several times by the DDA for commendable service rendered in DDA. His work done in the DDA, Lease Administration Branch (Housing) has been appreciated by the general public.
52. Both the accused did not examine any witness in their defence.
53. I have heard Sh. Varun Deswal, learned Counsel for A1 and Sh. Neeraj Verma, learned Counsel for A2. No arguments were advanced on behalf of the CBI.
V CONTENTIONS OF ACCUSED
54. Sh. Varun Deswal, learned Counsel for A1 contended that it is the case of prosecution that A1 instead of getting the said plot converted into leasehold to freehold in his own name as GPA Holder thereof by depositing 33.33% extra surcharge apart from the regular conveyance fee, got the same converted into freehold in the name of original allottees and, hence, caused wrongful loss to the CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 28 of 48 DDA to the extent of that extra surcharge. However, A1 could have applied for the conversion of the property in his own name as no Agreement to Sell and Possession Letter were ever executed by PW11 Mohan Jain and PW13 Deepika Jain in favour of A1. The entire conversion charges were duly paid and, as such, there was no loss to the DDA. Thus, ingredient of Section 420 of IPC are not attracted as no loss was caused to the DDA or to the original allottees. According to learned counsel, as regard offences punishable under Sections 465/466/467/468/471 IPC, there is no evidence that accused Naresh Chandra had appended false signatures of Mohan Jain and Deepika Jain on alleged documents or A1 at the time of submitting forged SPA Ex.PW11/BB in the DDA office knew or had reason to believe that the said SPA was forged. On these grounds, it has been contended that A1 has been falsely implicated in the present case and is liable to be acquitted.
55. Sh. Neeraj Verma, learned Counsel for A2 contended that the FIR was lodged in the present case without verifying the facts. It is contended that there was no dishonest intention which can be attributed to A2. It is vehemently argued that A2, at the relevant time, was the Superintendent of the CE Branch, DDA, Vikas Sadan, New Delhi but his act of attesting the signatures and photographs of Mohan Jain and Deepika Jain was clearly not an act which had been CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 29 of 48 performed by him in the discharge of his official duties and, thus, the provisions of P.C Act are not attracted. According to him, even otherwise, there is no evidence on record to show that A2 had demanded or obtained illegal gratification from anybody or any loss was caused to the DDA or to the original allottees. According to learned Counsel, A2 is liable to be acquitted in this case.
VI EVALUATION OF EVIDENCE AND FINDINGS :
56. This Court has given consideration to arguments advanced and has also perused the record.
CHEATING (SECTION 420 IPC)
57. The definition of cheating is provided in Section 415 IPC. For the offence of cheating, one of the ingredient is that the alleged act must have been committed either dishonestly or fraudulently.
58. Section 24 IPC defines 'dishonestly'. It reads as follows :
"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'"
Section 25 IPC defines 'fraudulently' and it reads as follows :
"A person is said to do a thing 'fraudulently' if he does that thing with intent to defraud but not otherwise."
59. From the testimonies of prosecution witnesses it is clear that A1 could not have applied for the conversion of the property in CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 30 of 48 his own name as there is no evidence on record to the effect that any Agreement to Sell and Possession Letter were ever executed by Mohan Jain and Deepika Jain in favour of Naresh Chandra. Though, PW11 Mohan Jain and PW13 Deepika Jain have deposed about having executed GPA and SPA in favour of A1 but for a GPA Holder to apply for conversion of the property from leasehold to freehold, it is sine qua non that he is in possession of the property under a validly executed Agreement to Sell. From the perusal of the evidence on record it is clear that exclusive possession of the said property always remained with the original allottess i.e. Mohan Jain and Deepika Jain. Therefore, A1 had no option for applying for conversion in his own name as GPA Holder. From the record it has emerged that the original allottess applied for conversion in their own names and the requisite conversion charges were duly paid and, thus, no loss was caused to the DDA or to the original allottees which is clear from the testimonies of PW11 Mohan Jain, PW12 Mehar Chand Singhal, PW14 Nand Lal and PW15 D. P. Dwevidi referred to hereinabove above in paras to 17, 27, 29 and 31 as the same are not repeated here for the sake of brevity and to avoid repetition.
60. It is pertinent to mention that A1 disclosed his defence in the form of suggestions put to PW11 during his crossexamination conducted on 14.02.2014 that Mohan Jain and Deepika Jain had CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 31 of 48 deliberately not executed any Agreement to Sell and Possession Letter in favour of A1 and for the said reason he could not have applied for the conversion in his own name as the GPA holder of the said property. As a result, PW13 Deepika Jain during her examinationin chief conducted on 06.05.2014 came up with a story that when A1 had come to their residence at Mumbai for getting the GPA/SPA signed from them under pressure, he had also got signed from them Agreement to Sell and Will. She introduced the said Agreement to Sell and the Will in the court for the first time which were marked as PW13/Z collectively. In response to a court question as to why the photocopy of the said Agreement to Sell was not handed over to CBI during investigation, PW13 replied, "I found this document only 78 days ago while shifting our godown. The said document was not available at the time of investigation ..."
61. She was crossexamined on this aspect and from her crossexamination it is clear that the alleged shifting of godown never took place. The relevant portion of her crossexamination conducted on 17.05.2014 is as hereunder :
"...My present address is Plot No.67, 4th Floor, Tulsi, N S Road No.12, Juhu Scheme, Ville Parle West, Mumbai49. In February, 2014 I was residing at the abovesaid address. Till 2007 we resided at C4, Jeevan Sudha, First Floor, Barfi Wala Road, Andheri West, Mumbai56. Our godown is situated at Wadala, Mumbai. In February, 2014 our godown was in CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 32 of 48 Wadala and still it is there. It is wrong to suggest that I have not come across any agreement to sell while shifting my godown seveneight days before 6.5.2014. It is wrong to suggest that the said agreement to sell has been fabricated by me after the examination and crossexamination of my husband Mohan Jain which was concluded on 14.2.2014 as the accused has disclosed his defence and had put the same to Sh. Mohan Jain in the crossexamination. It is wrong to suggest that accused Naresh Chandra nor his wife ever came to Mumbai and got signed Agreement to Sell, GPA, SPA from us under pressure..."
62. Even otherwise, the documents marked as Mark PW13/Z (collectively) have not been proved in accordance with law as PW13 Deepika Jain did not identify the signatures thereon.
63. From the perusal of evidence on record, the following facts have emerged :
(a) The possession of the said property was handed over after the auction of the plot to Mohan Jain and Deepika Jain by DDA.
(b) They never handed over the possession of the said property to A1.
(c) No communication was ever made to DDA or any other authority by Mohan Jain and Deepika Jain that they had handed over the possession of the said property to A1.
(d) No intimation was ever given to DDA that they had already sold off the said property to A1 and, as such, they were not interested in getting the said property freehold in their own names.CBI No.56/11
CBI Vs. Naresh Chandra & Another Page No. 33 of 48
(e) They never executed any Agreement to Sell in favour of A1. The authenticity of photocopy of Agreement to Sell produced by PW13 for the first time in the court during her examinationinchief is doubtful. The same has not been proved in accordance with law.
(f) In the facts and circumstances of the case, as mentioned herein above, A1 could not have applied for conversion of property from leasehold to freehold in his own name as GPA holder by paying extra 33.33% surcharge because PW11 and PW13 had never executed any Agreement to Sell and Possession Letter in his favour.
(g) No loss ever occurred either to the DDA or the original allottees as full conversion charges were paid to the DDA in respect of conversion of plot from leasehold to freehold in the name of original allottees.
64. From the perusal of evidence on record, it is clear that neither any wrongful loss was caused to anybody nor any wrongful gain to accused. Thus, the acts of the A1 cannot be termed to have been done dishonestly. He did not intend defrauding. This Court is, therefore, satisfied that his conduct does not come within S.420 IPC.
FORGERY; COMMITTING FORGERY FOR THE PURPOSE OF CHEATING & USING AS GENUINE A FORGED DOCUMENT (SEC. 465-468, 471 IPC) CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 34 of 48
65. The case of the prosecution with regard to offences of forgery can be split into following two parts :
a) Submission of false / forged application Ex.PW3/A1 for conversion of the said property from leasehold to freehold alongwith required documents i.e Indemnity Bond Ex.PW14/B, Undertaking Ex.PW14/C and Affidavit Ex.PW14/C etc. (hereinafter referred to as 'first set of documents') in the DDA bearing false signatures of Mohan Jain and Deepika Jain.
b) Submission of forged SPA Ex.PW11/BB (hereinafter referred to as 'second document') on the basis of which Conveyance Deed was executed in favour of Mohan Jain and Deepika Jain.
66. The offences with which the accused are charged are:
a) an offence of forgery for the purpose of cheating (S.465 -
468 IPC and
b) an offence of using a forged document as a genuine one (S. 471 IPC) FIRST SET OF DOCUMENTS
67. S.463 IPC defines 'forgery'. It is clear from the definition of Section 463 IPC that apart from making a false document, the person should intend to cause damage or injury either to the public or CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 35 of 48 to any person, and then only it would amount to forgery.
68. S.464 IPC defines 'making a false document'. It says that a person is said to make a false document, who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document. It is clear from this that a person is said to have made a false document if he dishonestly or fraudulently makes or executes such a document. All nongenuine documents are not forged. They must be covered by the conditions indicated in Sections 463 & 464 IPC.
69. As regards false / forged application for conversion of the said property submitted in the DDA, prosecution has failed to show that it was accused who had appended false signatures of Mohan Jain and Deepika Jain on the aforesaid application as well as the other documents i.e. Indemnity Bond, Undertaking and Affidavit submitted alongwith the aforesaid application. There is no evidence on record to suggest even remotely that it was accused who had deposited the said documents. No opinion was sought from GEQD in order to ascertain if any of the accused had appended the false signatures of Mohan Jain and Deepika Jain on the aforesaid documents. Thus, there is no evidence on record as to who had appended those signatures on the aforesaid documents. From the testimonies of PW14 Nand Lal and PW15 D. P. Dwevidi it is clear that it was the allottees who CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 36 of 48 themselves deposited the aforesaid documents in the office of DDA. The letters which were issued by the DDA requiring the submission of necessary documents were issued in the names of Mohan Jain and Deepika Jain at their address B7/104A, SDA, New Delhi and the said address is duly reflected in the Ration Card. The original allottees never sought cancellation of said Ration Card or deletion of their names therefrom. No investigation was made by the Investigating Officer to ascertain as to whether the said Ration Card was genuinely issued or not. Not a single witness was examined from the Ration Card Department to the effect that the record relating to the aforesaid Ration Card could not be traced out (as has been claimed by the I.O in his crossexamination).
70. Thus, in the present case at hand, it has not been proved that the alleged signatures on aforementioned documents were in the handwriting of accused persons. Though not referred to or relied upon, it has been held in Upender Nath Nayak Vs. Union of India, AIR 1984 Orissa 71 that the charge of forgery based on mere suspicion or doubt is not maintainable. It has further been held in judgment reported as Binayak Dass Vs. State of Orissa, 1974 Cut LR (Cri) 545 that the opinion of handwriting expert is absolutely necessary to prove the charge of forgery against the accused. As the prosecution has failed to prove the forgery qua the aforementioned first set of documents, CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 37 of 48 accused cannot be convicted for these offences.
SECOND DOCUMENT
71. The essential ingredients of Section 471 are :
a) fraudulent or dishonest use of document as genuine
b) knowledge or reasonable belief on the part of person using the document that it is a forged one. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself.
72. For an offence under Section 471, one of the necessary ingredient is fraudulent and dishonest use of the document as genuine. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the document to be a forged one.
73. Section 26 IPC explains the meaning of the words 'reason to believe' thus.
"26. Reason to believe : A person is said to have 'reason to believe' a thing,if he has sufficient cause to believe that thing but not otherwise".
74. These two requirements i.e. 'knowledge' and 'reason to believe' have to be deduced from various circumstances of the case.
75. Though not referred to or relied upon, in judgment - Dr. CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 38 of 48 S. Dutt Vs. State of U.P., 1966 Crl. L. J. 459, it is clearly laid down as to when exactly a person can be said to have acted dishonestly or fraudulently. In the said case, their Lordships of the Supreme Court have pointed out that even if a person makes a false document, unless he acts dishonestly or fraudulently, it would not amount to an offence of forgery. Their Lordship in that case were considering the conduct of Dr. Dutt who produced a forged diploma to make out that he was an expert. He was prosecuted for having committed the offences under Section 465 and 471 IPC. In the said case when examining the question whether Dr. Dutt is guilty of the offence under Section 465 and 471 IPC, their Lordships held that Dr. Dutt might have intended to deceive the Court that he was a forensic expert when he produced the false diploma certificate but he did not act dishonestly. His intention was not to cause any one wrongful loss and he had no intention of defrauding. In paragraph 13 of the judgment, their Lordships have observed as follows :
"... It may be pointed out at once that it was not suggested before us that Dr. Dutt made a false document within the definition of the expression in Section 464 of the IPC. In fact, there was no complaint that he committed the forgery himself. He was said to have used a false document as genuine dishonestly and fraudulently. The word dishonestly is defined by Section 24 of Penal Code. A person who does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. Dr. Dutt's CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 39 of 48 conduct involves neither a gain to any person nor loss to another. He was asked to produce the diploma in Court and he did. It is a matter of some doubt whether he can be said to have used the diploma because he did not voluntarily bring the diploma to Court. There is authority to show that such a user is not contemplated by Section 471 of the IPC. Even if one were to hold that he did use the document as genuine his intention in producing it was to support his statement and not to cause a wrongful gain to himself or to cause wrongful loss to another. This part of the section does not apply. The next question is whether his conduct can be said to be fraudulent. The word 'fraudulently' is defined by Section 25 of the Penal Code. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The last three words 'but not otherwise' clearly indicate that the intent must be an 'intent to defraud'...".
76. The Apex Court in Dr. S Dutt (supra) has explained the words 'intent to defraud' as being not synonymous with the words 'intent to deceive'. It requires some action resulting in disadvantage which but for the deception the person defrauded would have avoided.
77. Another aspect of forgery which is being imputed to accused Naresh Chandra (A1) is that he had himself submitted the forged SPA in the DDA office and got the Conveyance Deed executed on the basis of the said SPA. It is for the prosecution to prove that A1 knew or had reason to believe that the SPA Ex.PW11/BB was forged when the same was submitted in the DDA office. The prosecution has not led any evidence showing that A1 knew or had reason to believe CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 40 of 48 at the time of submitting the said SPA in the DDA office that the same bore false signatures of the original allottees. Vide letter dated 09.05.1995 the allottees were invited to execute the Conveyance Deed which is evident from the fact that the letter was issued in the names of original allottees and at their address which is reflected in their Ration Card. It cannot be imagined by any stretch of imagination that A1 could get to know about the original allottees being called for execution of the Conveyance Deed. From the facts and circumstances of this case, it is quite possible that the said SPA might have been given to A1 by the original allottees themselves. The accused have taken the probable defence and the same has remained consistent throughout the trial. Even otherwise, it is the case of the prosecution itself that A1 was already having genuine GPA and SPA in his favour executed by the original allottees. Therefore, there was no need for him to forge another SPA Ex.PW11/BB. In the facts and circumstances of this case, I am of the view that A1 would have never appended his own genuine signatures on Ex.PW11/BB, had he been knowing it to be a false/forged document.
78. Further, by the delivery of forged SPA Ex.PW11/BB, there is neither any wrongful gain to anyone nor any wrongful loss to another. The act of the accused could not, thus, be termed to have been done dishonestly. Likewise the appellant cannot be said to have any CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 41 of 48 intention to defraud because his action resulted in no disadvantage to anyone which but for the deception the person defrauded would have acted otherwise. As I have already held, in the facts and circumstances of this case, there is probability that PW11/PW13 themselves gave the forged SPA to A1. The prosecution has failed to prove that the accused knew or had reason to believe that the said document to be forged one. The basic ingredients of Section 471 IPC being missing, accused, therefore, cannot be convicted for the offence u/s 471 IPC.
CRIMINAL MISCONDUCT BY A PUBLIC SERVANT [SEC. 13(1)(d) R/W S. 13 (2) OF PC ACT] AND CONSPIRACY (SECTION 120B IPC)
79. Section 13 (1) (d) of P.C. Act read as under:
Section 13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,
(a) ...
(b) ...
(c) ...
(d) if he
i.by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or ii.by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;CBI No.56/11
CBI Vs. Naresh Chandra & Another Page No. 42 of 48
80. A perusal of the aforesaid Section shows that the essential ingredients of a criminal misconduct are :
i) That the accused should be a public servant;
ii) That he should use some corrupt or illegal means or otherwise abuse his position as a public servant and
iii) That he should either for himself or for some other person obtains any valuable thing or pecuniary advantage.
81. As distinguished from Section 161 IPC (which has since been repealed), in order to be a criminal misconduct, the action of a public servant deriving pecuniary advantage need not necessarily be connected with the performance of his official duty. Even if an accused, who is a public servant, obtains some pecuniary advantage for himself or for someone else by abusing his position as a public servant, he would come within the clutches of the law. Thus, the contention of the learned Counsel for A2 that the act of A2 attesting the signatures and photographs of Mohan Jain and Deepika Jain is not an act which had been performed by him in discharge of his official duty and, thus, the provisions of P.C Act will not be attracted is without any merit. Though not referred to or relied upon, for taking this view I am supported with the judgment State of U.P. Vs. Kanhaiya Lal, 1976, Crl. L. J. 1230.
CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 43 of 48
82. According to the prosecution case, A2 dishonestly induced the DDA to allow conversion of said property from leasehold to freehold on the basis of forged SPA which he authenticated on 10.05.95 before PW12 M C Singhal and, thus, obtained pecuniary advantage for coaccused A1 and such an act amounted to criminal misconduct.
83. It has been proved by the prosecution that application form Ex.PW3/A1 is in the handwriting of A2 and it bears forged signatures of original allottees Mohan Jain and Deepika Jain. It has also been proved that PW12 Mehar Chand Singhal allowed execution of the Conveyance Deed only after A2 made an endorsement at page No.19/N (Ex. PW7/J) wherein it is written "I know the lessees and the SPA personally and I identify their signatures made on SPA". It has also been proved that the SPA Ex.PW11/BB does not bear genuine signatures of Mohan Jain and Deepika Jain. Now what has to be seen is whether the act of A2 amounts to criminal misconduct u/s 13 (1)
(d) of PC Act or not.
84. It is not the case that A2 did not know Mohan Jain and Deepika Jain prior to 10.05.95. The Perpetual Lease Deed Ex.PW15/X1 bears the genuine signatures of Mohan Jain and Deepika Jain and same was executed in the presence of A2 Harish Chand Verma on 15.02.94. It cannot be said that A2 had any CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 44 of 48 malafide/dishonest intention when he made an endorsement Ex.PW17/J on the notesheet or attested the false signatures of Mohan Jain and Deepika Jain on the documents. At the most, he can be said to be careless or negligent. He appears to have acted in good faith. There is nothing on record that A2 had demanded or obtained illegal gratification from anybody. In these circumstances, I am of the opinion that prosecution has failed to prove its case against A2 for committing offence u/s 13 (1) (d) r/w S. 13 (2) of the P.C Act. The charge of conspiracy has also not been proved against the accused persons.
DEFICIENCIES IN INVESTIGATION
85. Before parting, I would like to say that investigation is laking at some places.
a) As per prosecution, it was Vishal Jain son of Mohan Jain who had participated in the auction with respect to the said property. The said Vishal Jain was not made a witness in this case.
b) It is claimed that Vishal Jain was minor at the time of opening the bank account as well as at the time of his participating in the auction bid. However, no investigation in this respect was conducted by the Investigating Officer.
c) The specimen signatures / handwritings of Vishal Jain CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 45 of 48 were neither obtained nor sent to CFSL for comparison with the forged signatures of Mohan Jain and Deepika Jain so as to ascertain if he had forged said signatures.
d) Though the signatures of A1 and A2 were sent to GEQD but no opinion was sought as to whether it was the accused persons who had appended false signatures of Mohan Jain and Deepika Jain on the documents submitted alongwith the application for conversion of the said property from leasehold to freehold and also the SPA on the basis of which the conveyance deed was executed.
e) No effort was made by the IO to ascertain as to who was the Notary / Registrar who had accompanied A1 to Mumbai.
f) The only evidence which could have shown that the accused had knowledge while submitting the said SPA that the same was forged one, was the Notary Public and register of this Stamp Vendor wherein A1 could have appended his signatures. However, no investigation in this regard was conducted.
g) No evidence was collected from the Ration Card Department as to whether they had genuinely issued the Ration Card in favour of Mohan Jain and Deepika Jain or CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 46 of 48 that the record relating to the said Ration Card was not traceable in the Ration Card Department (as has been claimed by IO in his crossexamination).
h) The factum of Vishal Jain issuing two separate cheques for the sum of Rs.12,00,000/ and Rs.62,20,000/ in favour of Naresh Chandra (A1) has neither been reflected by IO in the chargesheet nor mentioned by PW6 Hamad Bava in his statement u/s 161 Cr.PC. While the first cheque of Rs. 12,00,000/ was honored, the second one could not be honored because the amount exceeded the arrangement. It is not the case of the prosecution that the certain blank cheques were obtained by A1 which were later on misused by him. Only Vishal Jain could have thrown light in this respect but he has not been made a witness for the reasons best known to the IO.
i) Marginal witnesses to false documents were not examined during investigation.
VIII CONCLUSION :
86. This court is conscious of the decisions of the Apex Court titled as Visveswaran Vs. State, 2003 (6) SCC 73 and C. Muniappan Vs. State of Tamil Nadu, AIR 2010 SC 3718 wherein it has been held that any discrepancy or irregularity in investigation need CBI No.56/11 CBI Vs. Naresh Chandra & Another Page No. 47 of 48 not necessarily lead to the rejection of the case of the prosecution. However, even after ignoring the above referred discrepancies/irregularities, this court is of the opinion that the prosecution has failed to prove its case against both the accused beyond reasonable doubt.
87. In view of foregoing discussion, accused Naresh Chandra (A1) and Harish Chand Verma (A2) are hereby acquitted of all the charges levelled against them in the present case. Their personal bonds are cancelled and respective sureties are discharged. A1 and A2 are simultaneously directed to submit bonds under Section 437 (A) Cr.PC. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to record room.
Announced in the open (Praveen Kumar)
court today i.e on 28.08.2014 Special Judge, CBI3, P C Act,
Rohini Courts, Delhi.
CBI No.56/11
CBI Vs. Naresh Chandra & Another Page No. 48 of 48