Delhi District Court
State vs . Chottey Lal Etc. on 5 May, 2018
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT020020982012
CIS No. 298299/16
State Vs. Chottey Lal etc.
FIR No. 40/04
PS. Nabi Karim
U/s. 120B/420/467/468/471/506 IPC
JUDGMENT
1) The date of commission of offence : on or before 04.03.2003
2) The name of the complainant : Shri Om Prakash Chawla
3) The name & parentage of accused : 1) Chhote Lal S/o. Sada Ram R/o. 5746/3 & 5660, Gali Hanuman Mandir, Nabi Karim, Delhi(Since expired)
2) Bhim Sen Chhabra S/o. Nand Lal, R/o. MP53, Pritam Pura Delhi
3) Sushil Kumar S/o. Ram Phool Singh R/o. 5918, Nabi Karim, Delhi.
4) Rajiv S/o. Bhim Sen Chabra R/o. MP53, Pitam Pura, Delhi(already discharged)
4) Offence complained of : U/s. 120B/420/467/ 468/471/506 IPC
5) The plea of accused persons : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 05.05.2018 Date of Institution : 16.04.2004 Judgment reserved on : 04.04.2018 Judgment announced on : 05.05.2018 THE BRIEF REASONS FOR THE JUDGMENT:
1) In brief, the case of the prosecution against the accused persons is that they hatched a criminal conspiracy to cheat the complainant by executing forged / false documents of his property i.e a shop situated in property bearing no. 5746, situated at Singhara Chowk, Nabi Karim, Factor Road, Delhi(hereinafter as 'property in question'). In furtherance of that conspiracy false documents qua the above mentioned property were prepared as per which accused Chottey Lal (since expired) sold the property to accused Bhim Sen and accused Sushil Kumar signed those documents as a witness. Those forged documents were used as genuine and for the purpose of cheating. It is the further case of the prosecution against the accused Bhim Sen that he threatened the complainant, Harsh Chawla and Surender Chawla to kill them.
2) After completion of investigation, charge sheet was filed against the accused persons. In compliance of Sec. 207 Cr.PC, documents supplied to the accused persons. Arguments on point of charge were heard. Vide order dated 21.04.11, charge u/s. 120B/420/467/468/471 IPC was framed upon the accused persons to which they pleaded not guilty and claimed trial. A sperate charge u/s. 506 IPC was framed upon accused Bhim Sen Chabra, to which he pleaded not guilty and claimed trial. At this stage, it is pertinent to mention here that accused Rajiv was discharged by the orders of Ld. ASJ.
3) In support of its case, prosecution has examined thirteen witnesses. Statements of accused persons were recorded under section 313 Cr.P.C, in which they denied all the allegations. Accused persons Bhim Sen and Sushil Kumar wish to lead DE. Five witnesses were examined in defence.
4) I have heard the arguments of Ld. APP for State, Ld Counsel for Complainant and Ld Counsel for accused persons. I have also perused the record carefully.
5) At this stage, it is necessary to mention, in brief, the testimony of prosecution witnesses : Complainant / Eyewitnesses:
5.1) PW1 Om Prakash Chawla deposed that the property in question was purchased by M/s. Prakash Leather Store from its previous owner by virtue of Sale Deed. It is stated that accused Chottey Lal was the tenant in the property in question and he executed forged documents qua the property in question in favour of Bhim Sen on which accused Sushil Kumar signed as witness. It is deposed that on the strength of those documents the possession of the property was taken by accused Bhim Sen. He deposed that when the possession of Bhim Sen was objected by him, he was threatened by the accused Bhim Sen Chabra. 5.2) PW2 Surender Chawla also deposed on the lines of PW1 by deposing that the firm M/s. Prakash Leather Store is the owner of property in question in which the deceased accused Chottey Lal was tenant. He deposed that on 16.03.03, he came to know that accused Bhim Sen took the possession of the property on the basis of forged documents executed in his favour by Chottey Lal. He deposed that accused Bhim Sen and his son Rajiv threatened him that they would kill him, when the possession of accused Bhim Sen, over the property in question was objected by him.
5.3) PW3 Shri Rajesh Kalra also supported the case of the prosecution by deposing that the firm M/s. Prakash Art Leather Store is the owner of property in question, in which Chottey Lal was tenant. He deposed that on 16.03.03, accused Chottey Lal handed over the possession of shop to Bhim Sen without the consent of complainant on the basis of false documents. He deposed that accused Bhim Sen and his son Rajiv threatened him when the transfer of possession of shop was objected. Official witnesses:
5.4) PW4 Sh Satveer Singh, UDC SubRegistrarI Office, Kashmere Gate, Delhi proved the sale deed dated 06.07.1981 qua the property in question as Ex.PW4/A. 5.5) PW5 Sh Rajbir Singh Dahiya, deposed that in the year 2004, he was posted as Tehshildaar(Nazul) at Vikas Sadan, DDA and he had given a reply to SHO, PS Nabi Karim on 04.02.2004 regarding the investigation of the present case which is Ex.PW5/A. He deposed that he had written another reply dated 26.03.2004 Ex.PW5/B qua the property in question.
5.6) PW6 S.K Tyagi deposed that in the year 200304 he was posted as SubRegistrarIII Asif Ali Road. He deposed that on 04.03.2003 GPA, SPA and will qua the property in question were got registered by Chottey Lal in favour of Bhim Sen Chabra. GPA, SPA and Will were proved as Ex.PW6/A, Ex.PW6/B and Ex.PW6/C respectively. 5.7) PW7 Harish Kumar, Deputy Director Vigilance DDA, deposed that file bearing no. FD/QS/77/2105 qua the property in question was sent to their office vide letter dated 10.03.2006 from the office of Co ordinating Officer(Damages) and thereafter the file was sent to Director Land Management and from there the file was returned to Coordinate Officer(Damages) DDA.
5.8) PW8 Sevajit Yadav, proved the sale deed dated 05.06.1964 qua the property in question as Ex.PW8/A. 5.9) PW13 Dr Y.Surya Parkash proved the FSL reports qua the signatures on the exhibits involved in the present case as ExPW13/H. Witnesses to the investigation.
5.10) PW9 HC Yograj that on 29.03.2004, accused Bhim Sen Chabra, produced the power of attorney and some other documents qua the property in question before the IO which was seized vide Ex.PW9/A. He deposed that on 01.04.2004, accused Bhim Sen Chabra produced will qua the property in question which was seized by IO vide Ex.PW9/B. He further deposed that on 27.05.2004 the original agreement to sell and affidavit qua the property in question was seized by the IO vide Ex.PW 9/C. 5.11) PW10 SI Mahender Singh proved the present FIR as Ex.PW10/A and endorsement on rukka as Ex.PW10/B. 5.12) PW11 HC Ghure Singh deposed that on 16.02.2004, IO SI Ishwar Singh had arrested accused Chottey Lal.
5.13) PW12 SI Ishwar Singh deposed that he made endorsement on the complaint and got the present FIR registered. He deposed that he seized all the documents qua the property in question and thereafter arrested accused persons. He deposed that on 13.04.2004, complainant produced 11 original rent receipts which was seized. He deposed that relevant specimen signatures were obtained and thereafter sent to FSL.
6) Now, the testimony of defence witnesses examined in the present case are required to be mentioned, in brief: 6.1) DW1 Sh Jeet Ram, surveyor Slum Department brought the summoned record i.e. file no. FAP/3126/867/SAC/2003, Section Director(Town Planning), Slum Area CertificateSubChottey Lal property no. shop no. 5746/3, Ward No. XV, Singhara Chowk, Nabi Karim, Factory Road, Delhi55, regarding issuance of Slum Area Certificate. He deposed that this file contains a letter no. FAP/3126(867)/SAC/200203/D102, dated 21.07.2003, issued by Sh Jarnail Singh, Director (Town Planning) addressed to Sh Chottey Lal S/o Sh Sada Ram, shop no. 5746/3, Factory Road, Singhara Chowk, Nabi Karim, Delhi55. He identified the signatures of Sh Jarnail Singh, Director(Slum Area) Town Planning on ExDW1/A. 6.2) DW2 Sh Rajender Kumar deposed that he know accused Sushil Kumar for last 40 years. He deposed that he is the president of RWA of the area where he is residing. He deposed that accused Sushil Kumar doing the work of construction from last many years. 6.3) DW3 accused Sushil Kumar deposed that he has no concern with the present case. He deposed that in the year 2003 a property deal was executed between accused Chottey Lal and Bhim Sen and he had no role in that deal.
6.4) DW4 Sh Balkishan UDC, Damages Branch DDA, Vikas Sadan, New Delhi deposed that he has brought the summoned record i.e File no. D/US/77/2105 and this file contains the copy of notice dated 18.10.2004 issued to Bhim Sen Chabra for recovery of damages to the tune of Rs 51,039/. He deposed that the file also contains a photocopy of notices dated 18.10.2004, 07.02.2003, 15.03.2000, 06.03.1998, 01.10.1993, 07.09.1984, 04.01.1982 and 03.05.1980 issued to Chottey Lal for the recovery of damages.
6.5) DW5 accused Bhim Sen Chabra deposed that he purchased the shop of Chottey Lal in the sum of Rs 18 Lacs and that deal was got struck with the intervention of property dealer namely Sushil Kumar(accused). He deposed that he was assured that the property is in slum area and Chottey Lal was owner of that property. He deposed that he was handed over the damages receipts issued by DDA in the favour of Chottey Lal.
7) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
8) It is not claimed by any of the accused persons who are facing trial at this stage, i.e accused Bhim Sen and Sushil Kumar that they are/were owners of the property. The accused Chottey Lal who allegedly sold the property in question by claiming himself to be the owner of the property got expired during trial and thus matter stands abated qua him.
9) This is not in dispute that the property in question was originally purchased by way of public auction by Sh Ganpat Rai through custodian, Department of Ministry of Rehabilitation. The property in question was sold by Sh Ganpat Rai in the year 1964 to Sh Nand Lal and Smt Devi Bai vide sale deed dated 1964 Ex.PW1/C. The firm M/s Parkash Art Leather Store purchased the property in question vide sale deed Ex.PW 1/A, from Nand Lal and Devi Bai in the year 1981. The complainant is the partner of that firm and thus is the owner of property in question. Thus it is proved on record that the property in question is owned by the complainant.
10) Though, it is subsequent to the filing of the present complaint yet pertinent to mention the admitted fact that the accused Bhim Sen had already vacated the property in question. The property is now in the possession of the complainant. The complainant got the property vacated by filing a eviction petition in the court of Ld ARC.
11) The accused Chottey Lal executed some documents i.e GPA, SPA etc qua the property in question in favour of Bhim Sen on which the accused Sushil signed as witness. It is not relevant to discuss the capacity of Chottey Lal in the property in question because it came on record that the owner of the property was the complainant. It will not make any difference as to whether the accused Chottey Lal was the tenant in the property or licensee in the property or an unauthorized occupier. In any of the case the accused Chottey Lal was not in the capacity to transfer the ownership rights or better right which he himself had in the property in question in the favour of accused Bhim Sen. Further by virtue of rent receipts and the admissions made by the deceased accused Chottey Lal while examination U/s 313 Cr.PC it came on record that accused Chottey Lal was tenant in the property.
12) It is important to mention here some basis facts of the present case proved on record which would be relevant for deciding the fact in issue qua the offence of cheating and preparation of false documents:
(a) Complainant is the owner of the property by virtue of sale deed Ex.PW1/A.
(b) Chottey Lal was the tenant in the one shop of the property in question for long. Qua this rent receipts on record, eviction petition allowed by Ld ARC and the admission made by deceased accused Chottey Lal in the examination U/s 313 Cr.PC is sufficient.
(c) When the property was purchased by the complainant the possession of one of the shop in the property in question was with the deceased accused Chottey Lal. The same was admitted by complainant/PW1 in the crossexamination.
(d) Chottey Lal executed GPA Ex.PW6/A, SPA Ex.PW6/B and will Ex.PW6/C in the favour of accused Bhim Sen on 04.05.2003.
(e) Accused Sushil Kumar signed on Ex.PW6/A to Ex.PW6/C as a witness. Same is admitted by PW1 in the crossexamination. While keeping in mind these facts proved on record, let us examine whether the offences U/s 420/467/468/471/120B IPC proved on record against accused persons Bhim Sen and Sushil Kumar. Qua Section 467/468/471 IPC .
13) Section 467 IPC provides that whoever forges a documents which purports to be a valuable security shall be punished with the imprisonment of life or with imprisonment of either description which may extents to ten years and shall also be liable for fine. Section 468 IPC provides that whoever commit forgery intending that the documents forged shall be used for the purpose of cheating shall be punished with the imprisonment of either description for a term which may extents to seven years and shall also be liable for fine. Section 471 IPC reads that whoever fraudulently or dishonestly uses as genuine any documents which he knows or has reasons to believe to be forged shall be punished in the same manner as if he had forged such documents. Only the relevant portions of abovementioned sections which are relevant to the present case have been mentioned.
14) Section 470 IPC defines a forged document made by the forgery. The term forgery is define in section 463 IPC which reads as whoever makes any false documents with the intent to cause damage or injury to the public or to any person, or to support any claim for title or to to cause any person to part with the property or to enter into express or implied contract, or with the intent to commit fraud or that they fraud with the committed, commits forgery. Section 464 IPC defines making of false documents. The condition precedent for the offence U/s 467/468/471 IPC is the forgery. If the section 464 IPC be read carefully than the false documents can be categorized in three categories. i. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other persons, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. ii. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
iii. The third is where a person dishonestly or fraudulently caused any person to sign, execute or alter a document knowing that such person could not by reason of (a) soundness of mind; or
(b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
15) Thus, a person is stated to have made a forged document if i) he made for executed a document claiming to someone else or authorized by someone else; or ii) he altered or tempered a document; or iii) he obtained a document by practicing deception or from a person not in control of his senses.
16) The documents Ex.PW6/A to Ex.PW6/C executed by accused Chottey Lal in favour of Bhim Sen does not fall in the second or third category as mentioned above. Thus it is to be analyzed whether the case of the complainant that the execution of Ex.PW6/A to Ex.PW6/C by deceased Chottey Lal, who was not owner of the property, amounting to committing of forgery of the document with the intention of taking the possession of shop of the complainant would bring the case under the first category of 'false documents' as mentioned above.
17) If the documents Ex.PW6/A to Ex.PW6/C be perused carefully than it came out that the deceased accused Chottey Lal claimed himself to be owner of the property in question and executed alleged title documents in favour of accused Bhim Sen. Here reference to judgment titled as Mohd Ibrahim Vs State of Bihar(2009) 8SCC 751, the Hon'ble Apex Court is relevant, wherein a case containing identical facts to the present case it was held that "There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he may be the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of 'false document', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that is should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else or is her claiming that he authorized by someone else. Therefore, execution of such document (purporting to convey some property, of which he is not the owner) is not execution of a false document as defined U/s 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the code are attracted".
18) In the present case also the documents have been executed by accused Chottey Lal which was not his property and he was not claiming himself to be the someone else nor he was claiming that he was authorized by someone else(complainant in the present case). Chottey Lal not impersonated himself as complainant or claimed that he was been authorized by complainant to execute documents in question. Therefore the execution of Ex.PW6/A to Ex.PW6/C is not a execution of 'false documents' as defined U/s 464 IPC. If the documents Ex.PW 6/A to Ex.PW6/C are not false document than they cannot be said to be forged documents in view of abovediscussion. If, there is no forgery than neither section 467,468 or 471 IPC are attracted. Case of prosecution fails qua these offences.
Qua Section 420 IPC
19) The essential ingredients of offence of cheating are as follows:
i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
iii) such or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence Section 420 IPC there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived i) to delivery the property to any person, or ii) to make alter or destroy wholly or impart a valuable security.
20) When the Ex.PW6/A to Ex.PW6/C were executed by deceased accused Chottey Lal claiming his ownership over the property in question, it is possible for the purchaser(accused Bhim Sen) to alleged that the vendor(accused Chottey Lal) has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in the present case the complainant is not the purchaser on the other hand the purchaser is the coaccused. Accused Bhim Sen paid a huge consideration to accused Chottey Lal for the purchase of property in question. Had the accused Bhim Sen knew about the real capacity of accused Chottey Lal he would not have part with the huge sale consideration. It seems that the main victim is the accused Bhim Sen only.
21) It is not the case of complainant that any of accused persons tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver the property. It is nowhere the case of prosecution that accused Chottey Lal pretend to be the complainant while executing document Ex.PW6/A to Ex.PW6/C and therefore it cannot be said that the accused Chottey Lal by the act of executing Ex.PW6/A to Ex.PW6/C in favour of the second accused i.e accused Bhim Sen or the second accused Bhim Sen by the reason of being purchaser or by third accused Sushil by being the witness deceived the complainant in any manner. As the ingredients of offence of cheating as defined in Section 415 IPC not proved and hence it cannot be said that there was an offence punishable U/s 420 IPC.
22) Qua this aspect also support could be drawn from judgment of Mohd Ibrahim (Supra) wherein Hon'ble Apex Court held while dealing the case of similar facts held that "It is not the case of the complainant that any of the accused tried to deceive him either by making a false or mislead representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to delivery any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not to so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason or being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code". Accordingly the offence U/s 420 IPC qua the complainant is not proved.
Qua the offence 120B IPC.
23) The case of the prosecution against the accused persons is that they hatched a criminal conspiracy to cheat the complainant by preparing false documents of the property in question. Since in view of abovediscussion the offence of cheating and forgery not made out hence the criminal conspiracy to commit cheating or forgery not proved. Qua the offence U/s 506 IPC.
24) The charge U/s 506 IPC is against the accused Bhim Sen only. The case of the prosecution is that on 13.04.2004 accused Bhim criminally intimated the complainant, Harsh Chawla and Surender Chawla to kill them. There are several contradictions in the testimony of PW1, PW2 and PW3 qua the alleged threatening by the accused Bhim Sen. PW1 deposed that the accused Bhim Sen Chabra threatened him to leave immediately else he would be killed. PW2 Surender Chawla deposed that the accused Bhim Sen and his son Rajiv threatened him. Thus there is a contradiction qua the presence of accused Rajiv(since discharged) at the time of alleged threatening. PW3 deposed that the accused Bhim Sen Chabra and his son threatened complainant Om Parkash. Thus PW3 not deposed that the son of complainant Sh Surender Chawla(PW2) was also threatened which is so claimed by PW2. All these contradictions leads to doubt on the case of prosecution qua the alleged threatening by the accused Bhim Sen. Further the names of PW2 and PW3 were not mentioned in the complaint U/s 200 Cr.PC on the basis of which the case was initiated. Further if the accused persons were threatened on 16.03.2003 than why no complaint was made to any authority till 12.04.2004. The silence of the accused persons for a long time and the consequent delayed reporting which is unexplained leads to doubt in the case of prosecution as far as offence U/s 506 IPC is concerned. In the judgment titled as Sonali Verma Vs Ramvir Sharma 2000 I AD(Delhi) 868 it was held by Hon'ble High Court of Delhi thatso far as offence U/s 506 IPC is concerned there is not even a single whisper in the complaint that the threat alleged to have been given by the accused caused any alarm to the respondent and the cognizance of the offence U/s 506 IPC was declared as illegality. In the case in hand also the prosecution failed to prove that due to the alleged threatening any alarm caused to the complainant. Support could be drawn from judgment titled as Noble Mohan Dass Vs State 1989 Criminal Law Journal 669 decided by Hon'ble Madras High Court. Thus in the considered opinion of this court the prosecution failed to discharge its burden of proof qua the offence U/s 506 IPC also.
Conclusion.
25) It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
26) Thus in view of above discussion, the prosecution is not able to discharge its burden of proof. Accordingly accused persons namely Bhim Sen Chabra S/o Nand Lal and Sushil Kumar S/o Sh Phool Singh are hereby acquitted from the present case.
File be consigned to Record Room after due compliance subject to furnishing of bail bonds U/s 437 A Cr.PC by accused persons.
Digitally signed KAPIL by KAPIL KUMAR
KUMAR Date: 2018.05.06
16:00:39 +0530
Announced in open court (Kapil Kumar)
on 05.05.2018 MM5/Central District
Tis Hazari Courts/Delhi,