Delhi District Court
3.Title State vs . Wasim Etc. on 14 October, 2022
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 405/99, PS Bhajanpura
2.Unique Case no. 463198/2015
3.Title State Vs. Wasim etc.
3(A).Name of complainant Mohd. Hanif, S/o Shri Amir Ali.
3(B).Name of accused 1. Iqbal, S/o Anwar Mohd., R/o H. No.
2420, Gali Rang Wali, Delhi since abated
V.O.D 04.02.2019
2. Wasim, S/o Anwar Mohd., R/o H. No.
2420, Gali Rang Wali, Delhi.
3. Fahim, S/o Anwar Mohd., R/o H. No.
2420, Gali Rang Wali, Delhi.
4. Nadeem, S/o Anwar Mohd., R/o H. No.
2420, Gali Rang Wali, Delhi.
5. Anwar, S/o Ali Mohd., R/o H. No. 2420,
Gali Rang Wali, Delhi since abated V.O.D
20.04.2012
6. Saiyyad Abbas Ali, S/o Mustaq Ali, R/o
H. No. 1088/7, Katra Block, Lal Kuan,
Delhi.
4.Date of institution of challan 07.12.2004
5.Date of Reserving judgment 28.09.2022
6.Date of pronouncement 14.10.2022
7.Date of commission of offence 1987-1999
8.Offence complained of U/s 406/420/468/471/34 IPC
9.Offence charged with U/s 420/468/471/120B IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted
12. Date of receiving of judicial file 14.11.2017
in this court
State Vs. Wasim etc. Page 1 of 22 FIR No. : 405/99
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, Mohd. Hanif, S/o Amir Ali that Accused Zahir met the complainant Md Hanif at Saudi Arabia. There, they both became friends. Then the complainant at the advice of accused Zahir and his father i.e. accused Anwar purchased property bearing no. 700/35, Vijay Park, Delhi. However, when he came back to India, he found that accused persons took the original documents pertaining to the property.Further accused persons prepared forged documents of said property bearing no. 700/35, Vijay Park, Delhi in favour of accused Zahir Ahmad which was owned by the complainant Mohd. Hanif, S/o Shri Amir Ali and fraudulently sold the said property to one Gulzar Ahmad, S/o Shri Noor Ahmad and to Amir Ahmad, S/o Shri Abiz Ali. Thus, accused persons caused wrongful loss to the complainant Mohd. Hanif, S/o Shri Amir Ali, which he would not have suffered, if he was not so deceived and thereby committed offences punishable u/s 420/468/471/120B IPC and within the cognizance of this Court.
2. On the basis of the complaint, FIR U/s 406/420/468/471/34 IPC was registered. Accused Zaheer was declared PO during the stage of investigation.After completion of investigation, chargesheet was filed.
3. The accused persons namely Iqbal, Waseem, Faheem, Nadeem, Anwar and Saiyad Abbas were summoned. On 06.05.2008, accused persons were charged with offences punishable under section 420/468/471/120B IPC to which they pleaded not guilty and claimed trial.
4. Prosecution had named total 14 witnesses in the charge sheet. However, PW Mohd Hanif (Complainant) remained untraceable even through DCP State Vs. Wasim etc. Page 2 of 22 FIR No. : 405/99 concerned and hence he was dropped vide order dated 28.03.2014. Further, PW Yunus and Sampoorna Nand had also remained untraceable and were dropped vide order dated 18.03.2015.
5. PW-1 is Smt. Raj Rani who has deposed that she was the registered owner of a house of 50 square yards at Maujpur. She sold the said house Complainant Mohd. Hanif vide GPA, Agreement to sell, affidavit, receipt dated 29.01.1992 are Ex. PW1/A to Ex. PW1/D all bearing his thumb impression and signature at point A and also having his photographs at point B. She was not cross examined on behalf of the accused persons.
6. PW-2 is Salim. He has deposed that he is having a dairy for earning his livelihood. He further deposed that several years back, one Raj Rani sold her house to one Hanif for an amount of Rs. 2,60,000/-. The said house was situated at main road, Vijay Park. The said house was already constructed and having shops and rooms. He correctly identified the accused persons present in the court and stated that they were the friends of Hanif. Hanif used to come to his dairy for taking milk and he resided in the said house for around three years. Later on he left for Saudi Arabia. Thereafter, these accused persons stated residing there. Hanif resided in Saudi Arabia for about three years and when he came back to Delhi, he came to know that the said house was sold by the accused persons. The time when Hanif returned, there was a hotel in the said house. He stated that he does not know the name of owner of the said hotel. He does not know Zaheer. He does not remember the name of owner of the hotel, but it was Zaheer. He does not remember whether any person in the name of Zaheer ever resided there or not. He was cross examined by Shri Iftikhar Ahmed, Counsel for all accused persons wherein he stated that Hanif was known to him prior to the purchase of the house. He does not know who State Vs. Wasim etc. Page 3 of 22 FIR No. : 405/99 was middleman in the said dealing. Native village of Hanif was situated in Kerala. He stated that Police never recorded his statement. He never told the police that accused persons were residing there. He never gave statement in any other case in the court. He had not met Hanif for the last ten years. He does not know the name of the person who sold the said plot in the absence of Hanif. He denied the suggestion that Hanif never told him that somebody had sold his house wrongly. He does not remember the name of person who was residing just next to the alleged house but perhaps she was the relative of Raj Rani and she was residing in a plot of 80 square yards. He came to know that he was a witness in the case when some police person came to his house with a summon. He does not know the name of the any of the accused persons by name. He denied the suggestion that he was deposing falsely because his statement had not been recorded by the Police.
7. PW-3 is Nasim Khan. He has deposed that he does not know the exact date of incident, but it took place about 15 years ago. His neighbour Gulzar and his relative Amir Ahmed purchased a flat bearing no. 700/35 measuring 50 square yards from Zahir which is situated at Vijay Park. Zahir was residing in the said flat prior to its selling. One person namely, Hanif came at the said flat and said that the said house belonged to him. Later on, they were called in the police station , where he told the police that accused Zahir had shown the property documents in question in his name. Accused Zahir had also shown the documents reflecting that he had purchased the property from Hanif. The payment has also been received by him only. The witness was cross examined by Ld. APP for the State as he had been resiling from his earlier statement. During his cross- examination, he stated that his statement was recorded by the police but he does not know whether it was recorded in the PS, or at his home. He State Vs. Wasim etc. Page 4 of 22 FIR No. : 405/99 denied the suggestion that he had seen Zahir Ahmed and his brothers namely, Nadeem, Faeem, Iqbal and Wasim residing in the aforesaid house since long. He further denied the suggestion that Zahir, his father Anwar and his brothers Nadeem, Faeem, Iqbal, Wasim took them in influence that the abovesaid house earlier purchased by Hanif from one Raj Rani and thereafter, Zahir purchased it from Hanif. He agreed that he came to know about filing of the case by Hanif against Zahir, his father and his brothers at PS Bhajanapura regarding preparation of forged documents in the year 1998. He agreed that he came to know about the accused Zahir and his family members having prepared GPA and agreement deed of Mohd. Hanif in pursuance to a conspiracy by imposing false signatures on the same and got the house registered in their name. Later on they sold the same at a huge profit. He denied the suggestion that Zahir had told him about purchase of the property from Mohd. Hanif for an amount of Rs. 1,80,000/- and its sale by him to Gulzar and Amir Ahmed for a total sum of Rs. 1,81,000/-. The transaction qua the sale of property by Zahir to Gulzar and Amir Ahmed took place in his presence. He further agreed that he had signed the property documents as a witness pertaining to property no. 700/35 which had been sold by Jahir to Shri Gulzar and Amir Ahmed and the said documents are placed on record in original which are Ex. PW3/A consisting of 8 pages bearing his signatures at point A, A1 and A2. He knows accused Zahir since he was residing in the property bearing no. 700/35 which was situated in the same area where he was residing and he used to see him often in the area. Gulzar and Amir Ahmed are his neighbours and so he knows them very well. He had gone to court alongwith Gulzar, Amir Ahmed in respect of deed of property bearing no. 700/35 and accused Zahir alongwith his father had also come in the court. The documents of the property bearing no. 700/35 were in the name of accused Zahir which he had further transferred to Gulzar and Aamir State Vs. Wasim etc. Page 5 of 22 FIR No. : 405/99 Ahmad and he was the witness of the transaction. He could not identify the accused persons who were present in the court on that day. He came to know about the forgery of the papers by accused Zahir pertaining to property bearing no. 700/35 when the actual owner of the property Mohd. Hanif came into their area and disclosed that his original papers were kept with accused Zahir and his father and the property were also being care off by them. However, they prepared the forged the documents showing the property transferred in their name by Mohd. Hanif and on the basis of that they further sold the property to Aamir Ahmad. Thereafter, the case was got registered by Mohd. Hanif and police of PS Bhajanpura called him for the examination and he gave his statement to police which was recorded. During his examination in chief, he could not disclose all these facts before the court due to the passage of time and he could not re-collect the facts after the questions were put to him. He was cross examined by Shri Iftikar Ahmad, counsel for all accused persons wherein he stated that he does not remember whether he had put his signatures on statement recorded by police. As far as he remember, he had signed the documents Ex. PW3/A in Seelampur court. He did not remember whether he had signed in any register, or not. He does not remember whether the seller and purchaser had also signed the documents in the court. Gulzar and Amir Ahmad had made payment to accused Zahir in his presence. He came to know about documents of forgery by accused Zahir through Mohd. Hanif. He can identify the accused Zahir who was not present in the court on that day.
8. PW-4 is SI Narender Kumar, On 22.01.2000, he was posted as SIU, North East as Head Constable. On that day, IO Inspector Bharat Singh obtained signatures of Complainant Hanif in his presence. The complainant put his signatures in English language on three documents.
State Vs. Wasim etc. Page 6 of 22 FIR No. : 405/99 The documents is Ex. PW4/A which bears his signatures at point A. The document Ex. PW4/B and document Ex. PW4/C bears his signatures at point A. He was not cross examined by the accused persons.
9. PW-5 is ASI Pratap Singh. He has deposed that in the year 2001, he was posted at DIU, North East, Bhajanapura, Delhi. In the month of July- August, 2001, he had been given one sealed pullanda duly sealed with the seal of RS by MHC(M) vide Road Certificate 22/21 for deposition of the same to CFSL, Kolkata. He accordingly deposited duly sealed pullanda to CFSL, Kolkota. The sealed pulinda was intact till it remained in his possession. Receiving of the said pullanda by CFSL was handed over to him by MHC(M), PS Bhajanapura. His statement was recorded by IO. He was not cross examined by the accused persons.
10. PW-6 is Retd. ASI Prem Singh. He has deposted that on 12.11.1999, he was posted at PS Bhajanpura as Head Constable. On the said day, he was present at PS and working as Duty Officer. He received the rukka on the basis of which he got registered the FIR bearing no. 405/99 Ex. PW6/A bearing his signatures at point A. He made endorsement on the rukka Ex. PW6/B bearing his signatures at point A. Thereafter, he handed over the original rukka and copy of FIR to Ct. Rakesh for handing it over to ASI Prabhu Dayal for further action. He was not cross examined by the accused persons.
11. PW-7 is ASI Rakesh Chand. He has deposed that on 12.11.1999, he was posted at PS Bhajanapura as Constable and on the said day he was present at PS. Duty Officer HC Prem Singh handed over to him copy of FIR and original rukka with the direction to give the same to ASI Prabhu Dayal for State Vs. Wasim etc. Page 7 of 22 FIR No. : 405/99 further action. He joined the investigation of the present case alongwith ASI Prabhu Dayal. They reached at Vijay Park, Gali no. 27 where one dhaba was running at the spot. IO prepared the site plan mark X at the instance of the complainant. IO recorded the statement of complainant Hanif. His statement was also recorded by the IO. He was cross examined by Counsel for accused persons Shri Iftkhar Ahmed wherein he stated that the fact of running of dhaba at the said spot was not recorded in his statement U/s 161 Cr.P.C. He denied the suggestion that he had not joined the investigation with the IO or his statement was recorded at the PS.
12. PW-8 is retd. SI Prabhu Dayal. Though he was not named in the list of witness but being first IO of the case, he was summoned vide order dt. 19.02.2018. He has deposed that on 12.11.1999, he was posted at PS Bhajanapura as ASI. Investigation with respect to the present case was marked to him on the direction of SHO. Thereafter, he alongwith Ct. Rakesh Kumar accompanied with the complainant Mohd. Hanif went to H. No. 700/35, Viay Vihar, Maujpur, Delhi where he prepared the site plan Ex. PW8/A bearing his signature at point A at the instance of complainant Mohd. Hanif. At the said spot, Mohd. Yunus met him. He inquired from him and recorded his statement mark P bearing his signatures at point A who told that he had been residing at the said address alongwith his family, first floor and on the ground floor he had been running a dhaba in the name of Yunus Muslim Dhaba. He further told that he had purchased the said property from Zaheer for a consideration of Rs. 3.5 Lacs about 7 years back. He further told that the complainant Mohd. Hanif was claiming his right on the said property. He further told that he could produce the documents alongwith the witnesses with respect to the said property. He had recorded the supplementary statement of Mohd. Hanif mark P1 bearing his signature at point A. After that he came back to the PS where State Vs. Wasim etc. Page 8 of 22 FIR No. : 405/99 he also recorded the statement of Ct. Rakesh bearing his signature at point A. After that he deposited the case file with MHC(R). He was not cross examined by Ld. Counsel for accused persons despite being given opportunity for the same.
13. PW-9 is retd. ACP Bharat Singh. On 06.12.1999, he was posted at SIU, North East as Inspector and the present case FIR No. 405/99 file was handed over to him for the further investigation through DCP, North East District. He examined and perused the case file. On 08.12.1999, he accordingly summoned and called the complainant Mohd. Hanif and visited the spot 700/35, Vijay Park, Maujpur, Delhi alongwith the Complainant. He handed over to him the photocopy of GPA accompanied with agreement to sell, sale deed and the receipt mark PW9/A (six pages). The original GPA accompanied with agreement to sell, affidavit, receipt already Ex. PW1/A (seven pages). He also called Raj Rani and recorded her statement Ex. X1 bearing his signature at point A. He also recorded the supplementary statement of Mohd. Hanif Ex. X2 bearing his signatures at point A and the said documents were taken into custody and seized vide seizure memo Ex. PW9/A bearing his signature at point A. He also called the accused Abbas Ali on 22.01.2000 and interrogated who admitted his involvement in the commission of the present offence alongwith the accused Jahir Abbas and ors. He accordingly, arrested the accused Abbas Ali and recorded his statement bearing his signatures at point A at the instance of Mohd. Hanif. Personal search of accused Abbas Ali was made vide personal search Ex. PW9/C bearing his signatures at point A. He got obtained the specimen signature Ex. PW4/B and Ex. PW4/C both bearing his signatures at point A of the complainant Mohd. Hanif. He had discussed the present file with Chief Prosecutor Shri T.M. Puri and after discussion with him, he added section 120-B IPC in the present case against the State Vs. Wasim etc. Page 9 of 22 FIR No. : 405/99 accused persons. He had also noticed and called the other suspects and accused persons namely, Faheem, Naeem, Waseem, Anwar, Jaheer and ors. However, the accused persons had moved anticipatory bail applications before the court and the said accused persons except Jahir got anticipatory bail. The accused persons namely, Mohd. Abbas had also called Mohd. Ahmad at the office of SIU, North East. He had arrested the accused Mohd. Anwar, Mohd. Nadeem, Mohd. Faeem, Mohd. Waseem vide arrest memo Ex. PW9/F, Ex. PW9/G and Ex. PW9/H and interrogated him all bearing his signatures at point A. While he inspected the spot one Mohd. Yunus was found in possession of the same and there was one dhaba/hotel running on there who told that he had purchased the said property from the accused Jahir (already PO). Mohd. Yunus had produced the photocopy of the said property i.e. 733. He had taken the photographs of the said receipt and GPA into custody vide seizure memo Ex. PW9/I bearing his signatures at point A. Original GPA, agreement to sell and receipt of the same placed on recordEx. PW3/A running into five pages. On 20.01.2000, Mohd. Yunus had also produced the original documents of the said property, one GPA on which passport size photographs of complaianant had been pasted. Deed of agreement, two pages. All the four pages bearing signature of complaianant Mohd Hanif bearing his signature at point q1, q2, q4 and q5. The said documents were signed by accused Syed Abbas Ali at point q3 and Salauddin as witness. The said two pages of deed agreement marked PW9/B were taken into custody and seized vide seizure memo Ex. PW9/J bearing his signature at point A. He had also recorded the statement of PWs and forwarded the said GPA as well as specimen signatures through FSL through expert opinion. In the meantime, He got transferred and on 26.09.2000, he submitted over the case file to MHC(R) and further investigation was marked to MHC(R). He stated that he getting treatment from Sarvodaya hospital, Faridabad and he was not able to recognize the State Vs. Wasim etc. Page 10 of 22 FIR No. : 405/99 accused Syed Abbas Ali on that day. His further examination was deferred but before he could be recalled, he expired on 29.07.2019 and hence he was not further examined in chief nor subjected to cross examination.
14. PW-10 is retd. SI Balbir Singh. He deposed that on 04.06.2003, he was posted at DIU, North East as Sub Inspector. On that day, he had arrested accused Mohd. Wasim and Mohd. Iqbal vide arrest memo Ex. PW10/A and Ex. PW10/B both bearing his signatures at point A. He had also got the proceedings of accused Jahir conducted u/s 82 Cr.P.C. On 02.08.2003, accused Jahir was declared as PO. Thereafter, he had filed the charge-sheet before the concerned court. He can identify the accused Wasim, Iqbal and Jahir, if shown to him. He was not cross examined by the accused persons.
15. PW-11 is retd. ACP Jagjeet Singh. He has deposed that on 08.03.2003, he was posted at DIU, North East as Inspector. On that day, the investigation of the present case was marked to him and during the course of investigation, he had obtained the process Under section 82/83 Cr.P.C. against accused Jahir, Waseem and Iqbal. The said process was executed by him. Apart from this he had also obtained the LOC against above named persons. He had also recorded the statement of Naseem Khan under section 161 Cr.P.C. Thereafter, on 12.05.2003, he handed over the present case file to Reader to ACP, DIU, as he was transferred. In his cross examination he denied the suggestion that he was deposing falsely or that process under section 82 Cr.P.C was issued qua accused Zaheer only.
16. Thereafter, ld. Defence Counsel admitted the genuineness of report furnished CFL Kolkatta under section 294 Cr.P.C on 29.11.2019 and hence, PW S K Saxena was not summoned. The state then closed the prosecution evidence on 29.11.2019. IN the statement of accused persons State Vs. Wasim etc. Page 11 of 22 FIR No. : 405/99 under section 281 Cr.P.C. r/w 313 Cr.P.C. they denied all the allegations against them.
17. Final arguments were addressed by Ld APP for the state Shri Rajesh Kumar and by Ld Defence Counsel Shri Iftikhar Ahmad.
18. I have heard the submissions of both the parties and perused the material on record. However, before proceeding to the merits of the case, I wish to first refer to the relevant provisions of law.
Section 467 provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Section 468 provides that whoever forges a document with the intent that the document shall be used for the purpose of cheating, shall be punished with imprisonment of either d scription for a term which may extend to seven years, and shall also be liable to fine.
Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.
Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in Section 463.
Section 463: Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
Section 464 defining "making a false document" is extracted below:
"464. Making a false document.--A person is said to make a false State Vs. Wasim etc. Page 12 of 22 FIR No. : 405/99 e document or false electronic record--
First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1.--A man's signature of his own name may amount to forgery.
Explanation 2.--The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note.-- The words 'digital signature' wherever they occur were substituted by the words 'electronic signature' by Amendment Act 10 of 2009.]"
State Vs. Wasim etc. Page 13 of 22 FIR No. : 405/99 The condition precedent for an offence under Sections 467, 468 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record.
19. An analysis of Section 464 of the Penal Code shows that it divides false documents into 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 person, 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 causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or
(b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
20. In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
21. 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 authorised 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 State Vs. Wasim etc. Page 14 of 22 FIR No. : 405/99 are two possibilities. The first is that he bona fide believes that 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 documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it 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.
22. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised 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 under Section 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.
19. Now proceeding upon the basis of aforesaid principles of law, I shall render my finding against the accused qua the offences.
20. The present case was registered on the basis of complaint Mohd Hanif. It is not in dispute that complainant Mohd. Hanif purchased property bearing number 700/35, measuring 50 sq yards of Khasra no 31 situated in village Maujpur in the abadi of Vijay park Maujpur Delhi-53 (hereinafter referred to as case property) from PW1 Raj Rani. The case of the prosecution is that GPA, agreement dt 14.05.1992 Ex. PW9/B vide which the case property was purportedly transferred by Complainant Mohd Hanif to Accused Zaheer ( already PO) was never executed by the Complainant Mohd Hanif but is in fact a forged document created by the accused State Vs. Wasim etc. Page 15 of 22 FIR No. : 405/99 persons in conspiracy to cause wrongful loss to the complainant. PW1, PW2 and PW3 are the public witnesses. Remaining witnesses are the police officers who merely prove the registration of FIR, apprehension of accused persons and the investigation conducted. The testimony the said witnesses does not pertain the genuineness of the impugned documents i.e. Ex PW9/B.
21. Now coming to the testimony of PW1, PW2 and PW3. PW1 is previous owner of the case property. In her testimony she reiterated that she sold the case property to the complainant Mohd Hanif. But the said fact is not in issue. Therefore, her testimony is not relevant. Moving to the testimony of PW2. He supports the version of PW1. He deposed that PW1 Raj Rani sold case property to complainant Mohd Hanif. But he did not depose anything regarding the impugned documents i.e. ExPW9/B. He stated that he does not know Zaheer. His entire testimony in no way moves forward the case of the prosecution. He is neither a witness to the impugned documents or nor to any deception or misrepresentation by the accused persons made to the complainant. PW3 has deposed that his neighbour Gulzar and his relative Amir Ahmed purchased case property Zahir. He has further deposed that complainant Hanif came at the said flat i.e. case property and stated that case property belonged to him. He is witness to documents Ex. PW3/A consisting of 8 pages bearing his signatures at point A, A1 and A2 vide which case property was sold by Accused Zahir to Shri Gulzar and Amir Ahmed. However, the genuineness of said documents is not a fact in issue. Neither the prosecution nor the defence counsel has contended that the said documents i.e. Ex. PW3/A were not executed by accused Zahir. Here it is also pertinent to mention no complaint of either Gulzar nor Amir Ahmad have been brought to the notice of this court alleging any forgery or wrongful loss to Amir Ahmed or Gulzar.
State Vs. Wasim etc. Page 16 of 22 FIR No. : 405/99
22. The question regarding genuineness of PW3/A shall only arise if the state proves that the accused persons created false document i.e. Ex PW9/B to claim ownership of case property. Ld APP for the State has argued that the accused persons have admitted the CFL result and the said result shows that specimen signatures of complainant running from S3 to S5 are not of same person who signed at point Q1, Q2, Q4 & Q5 (i.e. purported signatures of complainant at the impugned documents Ex. PW9/B). Here it is pertinent to mention that the CFL report is only an opinion of an expert and cannot be said to be conclusive proof. It is no longer res integra that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This is specially so in the present case when the State has failed to secure the presence of the Complainant. The complainant has not entered the witness box and categorically deposed that the signatures on the impugned document Ex. PW9/B at point Q1, Q2, Q4 and Q5 are not his own but forged. It is cardinal principle of criminal trial that accused is presumed to be innocent until proven guilty. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. Hence, benefit of doubt must go in favour of the accused.
23. The failure of the State to secure the presence of the complainant leaves material inconsistency in the chain of circumstances sought to proved by the State. In the absence of testimony of the complainant Mohd Hanif, State fails to prove on the basis of preponderance of probabilities that the impugned documents Ex. PW9/B are a false document u/s 464 IPC which have been executed dishonestly or fraudulently by the accused persons in State Vs. Wasim etc. Page 17 of 22 FIR No. : 405/99 conspiracy, with the intention of causing it to be believed that Ex PW9/B was executed by Mohd Hanif when they knew that it was not made or executed by Mohd Hanif. Forgery is a condition precedent for the offence u/s 468/471 IPC. As the state fails to discharge its burden and prove the condition precedent, offence under section 468/471 IPC does not stand. Thus, the state fails to prove ingredients of offences punishable under section 468/471 IPC qua the accused persons.
24. Now let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the 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 act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
23. To constitute an offence under Section 420, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. However, it is not the case of prosecution that the accused Zaheer, induced Amir and Gulzar to purchase the case property by State Vs. Wasim etc. Page 18 of 22 FIR No. : 405/99 deception. Rather, the state has argued that accused Zaheer in connivance with the co-accused committed deception and cheating with complainant Mohd Hanif.
24. The term "fraud" is not defined in the Code. The dictionary definition of "fraud" is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines "fraud" with reference to a party to a contract. In Vimla (Dr.) v. Delhi Admn. AIR 1963 SC 1572 the Apex Court explained the meaning of the expression "defraud" thus: (AIR pp. 1576-77, para 14) "14. ... the expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
25. The above definition was in essence reiterated in State of U.P. v. Ranjit Singh (1999) 2 SCC 617. The Penal Code however defines "fraudulently", an adjective form of the word "fraud" in Section 25, as follows:
"25. 'Fraudulently'.--A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
26. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Section 24 as follows:
"24. 'Dishonestly'.--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' State Vs. Wasim etc. Page 19 of 22 FIR No. : 405/99
27. To "defraud" or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (Sections 206, 421 and 424).
(ii) Fraudulent claim to property to prevent seizure (Section 207).
(iii) Fraudulent suffering or obtaining a decree (Sections 208 and
210).
(iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253).
(vi) Fraudulent acts relating to stamps (Sections 255 to 261).
(vii) Fraudulent use of false instrument/weight/measure (Sections 264 to 266).
(viii)Cheating (Sections 415 to 420).
(ix) Fraudulent prevention of debt being available to creditors (Section 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (Section 423).
(xi) Forgery making or executing a false document (Sections 463 to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security, etc. (Section 477).
(xiii) Fraudulently going through marriage ceremony (Section 496).
28. It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.
25. It is not the case of the prosecution that any of the accused tried to deceive the complainant Mohd Hanif 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 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 so deceived. The testimony of the public State Vs. Wasim etc. Page 20 of 22 FIR No. : 405/99 witnesses PW1, PW2 and PW3 does not aid the case of prosecution in this respect. PW1 and PW 2 merely show transfer of case property from PW1 to Complainant Mohd Hanif. PW3 merely deposes regarding subsequent transfer of said case property by Accused Zahir to Gulzar and Amir Ahmed. None has deposed regarding any misrepresentation or deception to the complainant on the part accused persons. Here it is pertinent to note that the complainant Mohd Hanif who was the star witness of the prosecution remained untraceable. In the absence of the testimony of the complainant, the essential ingredients of offence of cheating i.e. (i) fraudulent or dishonest inducement of Mohd Hanif to either deliver any property or to consent to the retention thereof by any person or (ii) to intentional inducement of Mohd Hanif to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to Mohd Hanif in body, mind, reputation or property remained unproved. 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. Reference is had to the decision of the Hon'ble Apex Court in Mohammed Ibrahim And Others Versus State Of Bihar And Another (2009) 8 Supreme Court Cases 751.
26. Now moving to the allegations of criminal conspiracy punishable under section 120B IPC. The case of prosecution is that accused persons in criminal conspiracy created false document i.e. Ex PW9/B pertaining to property of the complainant in order to cause wrongful loss to him and subsequently transferred the said property to Gulzar and Amir. But the state has failed to prove that the document Ex. PW9/B is a false document. Further, in the absence of testimony of complainant, it cannot be held that there was any prior agreement between the accused persons to commit an State Vs. Wasim etc. Page 21 of 22 FIR No. : 405/99 offence. The testimony of PW1 and PW2 merely shows purchase of case property by the complainant. The testimony of PW3 shows the transfer of case property by accused Zahir to Gulzar and Amir Ahmad. None of the prosecution witnesses have deposed anything relevant to the impugned transfer of case property vide Ex PW9/B from Hanif to Zahir. The State failed to secure the presence of Complainant Mohd Hanif. As the burden was on the prosecution, the benefit of doubt must go in favour of the accused persons as material link in the prosecution story is missing.
27. Accordingly, in view of aforesaid findings and discussion, I hold that the State has failed to prove it case beyond reasonable doubt. Hence, accused persons, namely Waseem, Faheem, Nadeem and Saiyad Abbas Ali stand acquitted for the offences punishable under section 420/468/471/120B IPC.
28. File be consigned to the Record Room as per rules.
Digitally signed by Rupinder Rupinder Singh Dhiman
Singh Dhiman Date: 2022.10.14
17:28:28 +05'30'
Announced in the (RUPINDER SINGH DHIMAN)
Open Court on 14.10.2022 Metropolitan Magistrate-01
KKD Courts, Delhi
It is certified that this judgment contains twenty two (22) pages and each page bears my signature. Rupinder Singh Digitally signed by Rupinder Singh Dhiman Dhiman Date: 2022.10.14 17:28:41 +05'30' (RUPINDER SINGH DHIMAN) Metropolitan Magistrate-01 NE/KKD Courts, Delhi 14.10.2022 State Vs. Wasim etc. Page 22 of 22 FIR No. : 405/99