Delhi District Court
State vs Mahinder Kumar Ors on 16 October, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presided over by - Ms. Medha Arya, DJS
Cr. Case No. : 2031752/2016
FIR No. : 434/2000
Police Station : Kotla Mubarakpur
Section(s) : 419/420/467/468/471/409/120B IPC
In the matter of -
STATE
Vs.
i) Mahinder Kumar
S/o Sh. Devi Dayal
R/o BG-5/75B
Paschim Vihar
New Delhi
ii) Subhash Chander Chugh
S/o Sh. Dhan Pal Rai
R/o L-1/101A, DDA Flat
Kalkaji, New Delhi
iii) Jai Prakash Gupta
S/o Late Sh. Amolak Ram
R/o A-39B, Ashok Vihar-I
Delhi
iv) Rakesh Sharma
S/o Late Sh. P.D. Sharma
R/o 234, Sector 4
Gurugram, Haryana
v) Sri Krishan Goel
S/o Sh. B.M. Goel
R/o C-60A, Gangotri Apartments
Alaknanda, New Delhi .... Accused
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 1 of 40
Sh. Amar Chatterjee, the then
1.Name of Complainant : Director (Housing-I), DDA, INA, New Delhi
2. Name of Accused : As above.
3. Offence complained of or proved : 471/409/120B IPC
4. Plea of Accused : Not guilty
5. Date of commission of offence : In or around 1998-2000
6. Date of Filing of case : 26.02.2001
7. Date of Reserving Order : 19.09.2025
8. Date of Pronouncement : 16.10.2025
9. Final Order : Acquitted Argued by - Ld. APP for the State.
Ld. Respective Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION "A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, "Am I never to hear the truth?" "No, my lord, merely the evidence", replied counsel."
- Peter Murphy The prosecution case is that certain DDA officials conspired and finagled with a property dealer and a bank manager, wrongly issued possession letter of a flat in favour of the said property dealer, and also misappropriated DDA funds by processing an unauthorised refund for the flat. However, the crucial link in the prosecution case remained unproved, as there is no evidence to show that refund amount was ever received by the property dealer, or that he ever gained the possession of the flat. Consequently, the very warp and woof of the prosecution story is found to be unestablished.
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 2 of 40FACTUAL MATRIX -
1. One Mohd. Zahid, resident of H. No. 1607, Gali Andheri, Chitali Kabar, Delhi, was registered in the 5th Self Finance Scheme of DDA. Initially, a flat at Rohini was allotted to him vide demand letter dated 31.12.1991, which allotment was subsequently cancelled. Thereafter, another application for allotment of flat was submitted by him on 04.01.1994, which showed his residential address to be F-463, Sarita Vihar, New Delhi. On the said application, he was allotted a Category-II flat in Jasola, Delhi, vide allocation letter dated 15.03.1994. Payments for the said flat were later discovered to have been deposited by some other person on behalf of the allottee. Be that as it may, a 5th and final demand letter for the aforesaid flat no. 83-T, Sector 7, Category II, Jasola, New Delhi (hereinafter, "flat in question") was issued to him at a total cost of Rs.10,16,600/- on 05.11.1998. After the said payment was made, on 09.03.2000, possession letter of the flat in question was handed over to one Smt. Mini Gupta, in whose favour the allottee had purportedly executed an SPA dated 14.12.1998. Meanwhile, on 31.03.1999, DDA notified a policy for reduction of cost in some cases of flat allotments. Pursuant thereto, a request letter dated 16.09.1999 was received at the DDA office under the signatures of the allottee seeking reduction of the cost of the flat in question from Rs.10.16 lakhs to Rs.7.85 lakhs. The letter was processed, and the refund was issued in favour of the allottee by officials of DDA/accused Mahender Kumar, J.P. Gupta and S.C. Chugh, although they did not have the competence to process the refund. Subsequently, the request letter as well as all the other documents deposited with the DDA on behalf of the allottee, including the SPA purportedly executed by him in favour of Smt. Mini Gupta, were found to be forged. It was also found that the refund in State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 3 of 40favour of the allottee was dishonestly processed by the DDA officials, to give undue advantage to accused S.K Goel. Upon physical verification, it was also found that the flat in question is in possession of the purported SPA holder of the allottee. Scrutiny of the file of the allottee bearing no. F.178(62)94/SFS/JL/II revealed that at the first instance, while getting registered for the SFS Scheme, he had given his date of birth 14.11.1947, in the subsequent application he put his date of birth as 08.08.1949, and in the last application vide which the allotment was made to him, he mentioned his date of birth as 08.08.1948. The said discrepancies were ignored, and refund was still issued in his favor. After the complaint of Sh. Amar Chatterjee, the then Director, Housing, DDA, qua the above mentioned irregularities was received with DCP, Crime, EOW, Crime Branch, the subject FIR was registered, and investigation was undertaken.
2. Investigation revealed various anomalies in the allotment file of the allottee Mohd. Zahid. It was also revealed during investigation that the refund amount of Rs.2,11,305/-, for which a cheque in the name of Mohd Zahid was issued, was actually withdrawn by accused SK Goel, who got opened a joint bank account no. 6583 in Union Bank of India, Anand Niketan Branch in his name and in the name of the allottee for the said purpose, basis a forged bank account opening form. It is alleged in the charge sheet that the staff of the Housing Accounts Wing and Management Wing of DDA, and the property dealer conspired with each other, and were involved in fraudulent allotment of the aforesaid flat to Mohd. Zahid, and also in fraudulently processing the refund w.r.t. the said flat, to cause unlawful gain to themselves, and unlawful loss to the DDA. The requisite sanction u/s 197 CrPC was obtained, and charge sheet was filed against the aforesaid four State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 4 of 40accused for the offences punishable u/s 419/420/467/468/471/ 409/120B IPC. Annexed with the charge sheet is the FSL report confirming that the aforesaid documents filed with the DDA in the name of the allottee are forged and fabricated.
3. Subsequently, a supplementary charge sheet was also filed against accused Rakesh Sharma with the allegation that in the capacity of Sr. Branch Manager, Union Bank of India, Anand Niketan Branch, he had permitted accused SK Goel to open a joint bank account adding the name of allottee Mohd. Zahid therein, on the basis of a forged account opening form, in the absence of the said allottee. This, in brief, is the factual expose.
4. Cognizance of the offences as disclosed in the charge sheet was taken, and the accused persons were summoned to face trial. Copy of charge- sheet was supplied to them in compliance of Section 207 CrPC. Thereafter, charge for the offences punishable u/s 120B/471 IPC was framed against accused SK Goel. Charge for the offence punishable u/s 120B IPC was framed against accused Rakesh Sharma. Charge for the offences punishable u/s 409/120B IPC was framed against accused S.C. Chugh, J.P. Gupta and Mahender Kumar. All of the accused pleaded not guilty to the charges alleged against them, and claimed trial. Proceedings then progressed to the stage of PE.
5. In support of its version, prosecution examined 19 witnesses:
PW Name Nature of Testimony
PW1 Smt. Nirmala S. She denied having attested and signed the
Nayyar
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 5 of 40
documents Mark PW1/1 to PW1/5, and
Ex.PW1/1 to PW1/2 (conveyance documents
purportedly executed by Mohd Zahid in
favour of Ms. Mini Gupta).
PW2 Sh. Devendra He testified that in February 2001, he was
Bhushan Gupta
posted as Commissioner (Housing), DDA.
The then Addl. Chief
Secretary, PWD, He testified that refund for the flat in Govt. of Rajasthan question could have been processed by Vice Chairman, DDA, and by his delegation, Financial Advisor (Housing). He testified that latter was also not authorized to sub-
delegate his delegated powers to anybody else. Any refunds made at the level of Joint Financial Advisor (Housing) or below were wrong. He stated that the note on DDA file bearing no. F.178 (62)94/SFS/JL/II in the name of Mohd. Zahid for taking permission of Vice Chairman, DDA, for referring the matter to the police was dictated by him, being Ex.PW2/A. PW3 Sh. KP Lakshmana He testified that he had granted sanction u/s Rao 197 CrPC for prosecution of accused SC The then Finance Member, DDA Chugh, Mahender Kumar, and JP Gupta. He proved the said sanction letters being Ex.PW3/A, PW3/B and PW3/C. PW4 Sh. Amar Chatterjee He proved his complaint, Ex PW4/A as well State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 6 of 40The then Director, as seizure memo of documents which were Housing-I, DDA seized by the IO vide Mark PW4/B. PW5 Insp. Satya Prakash He testified that he obtained the certified Formal Witness/filed attested copy of FSL report as well as the Supplementary chargesheet exhibits, and also testified that the originals were found to have already been collected by some other person. He filed the supplementary charge-sheet.
PW6 Sh. Ami Lal Daksh He proved the FSL report prepared by him, Retired Senior Ex.PW6/A. Scientific Assistant (Documents), FSL, Rohini PW7 Mohd. Zahid He testified that he had booked a flat in DDA Allottee of the flat in in the year 1982. He admitted to having sold question the flat in question to some person, but stated he does not remember the name of such person. Certain documents bearing his purported signatures and filed with DDA were admitted by him . He denied his signatures on the allotment application (Mark 7C), and stated that copies of the no-
sale affidavit Mark 7/D and Undertaking Mark 7/E bear his signatures, but when he signed the same, they were blank. He testified similarly qua the copy of SPA executed by him in favour of Ms. Mini State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 7 of 40Gupta, Mark 7/G. He denied his signatures on the copy of the bank account opening form, Mark 7/A. He testified that he had never resided at Sarita Vihar or Jasola. He testified that he has been residing at Daryaganj for over 20 years, and prior to that, he had been residing at Jama Masjid area. He testified that he never opened any account at Union Bank of India, Anand Niketan branch, nor does he know any person by the name of Mini Gupta.He testified that after selling the flat in question, he had never any transaction regarding any money with DDA. He also testified that his mental condition has deteriorated due to diseases and old age. On account of which, he does not remember material facts of the case.
PW8 Sh. Praveen He testified that he had introduced account of Gambhir accused SK Goel at Union Bank of India of To prove the forgery in Bank Account manager/accused Rakesh Sharma, but when opening form he signed the account opening form, the same did not bear the signatures of Mohd Zahid.
PW9 Sh. Manoj Kumar He testified that on 12.01.2001,the Aggarwal investigation of the case was marked to him, Retired Inspector State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 8 of 40and he interrogated accused S.K. Goel and Formal Witness recorded his statement Ex PW9/C, and thereafter, arrested him vide memo Ex PW9/E, and conduced his personal search vide memo Ex PW9/B. He correctly identified accused SK Goel during trial.
PW10 ACP Anil Kumar He testified that on 15.11.2001, he was posted as SI at LBR Section, EOW, Crime.
First IO He testified that when he received the complaint from DDA, he made an endorsement Ex. PW10/A thereon, and on the basis of the same, the subject FIR was registered. He testified that he seized the file of Mohd. Zahid from DDA office vide seizure memo Ex. PW10/B. The said file was exhibited as Ex PW10/C. He testified that during investigation, he recorded the statement of witnesses u/s 161 CrPC, and arrested accused, SC Chugh, Mahinder Kumar, JP Gupta vide memos Ex PW10/D, PW10/E, and PW10/F. PW11 Sh. D.R. Srivastava He testified that he was posted as Legal Assistant between years 1992 to 2001 at The then Legal Assistant, DDA. DDA, Vikas Sadan, INA New Delhi. He testified that on one of the days, IO showed him the file 178(62)/SFS/JL/II pertaining to State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 9 of 40allottee Mohd. Zahid. The witness testified that he told the IO that whenever any file was put up before him, he used to check the legal documents, give his opinion thereon, and forward the same to the Superintendent, and he never checked the identity or genuineness of any allottee or SPA holder.
PW12 Sh. Pawan Kumar He testified that he was working as Dealing Sharma Assistant, till his superannuation in March Concerned dealing 2013, with DDA. He testified that he had assistant, DDA gone to the crime branch office while the investigation of the case was underway, and after seeing his noting in file no.
178-6294/SFS/JL2 of Mohd. Zahid, he had duly informed the IO that whenever he received any letter regarding the above-
mentioned file, he had merely put up the same before his Superintendent/Assistant Director. He identified his notings as Ex.
PW12/A, PW12/B and PW12/C. PW13 Sh. J.S. Mishra He testified that in the duration for which the (ACP) investigation of the case entrusted to him, he 2nd IO had scrutinized the file of allottee Mohd.
Zahid, collected relevant documents from Union Bank of India Anand Niketan Branch, interrogated accused SK Goel and thereafter, State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 10 of 40arrested him, and had also conducted his personal search, and recorded his disclosure statement. He also testified that he had obtained the specimen handwriting of accused SK Goel being Mark PW13/1. He testified that he had also obtained the specimen signatures of Nirmala Singh Nayyar for the purpose of comparison being Mark PW1/5 to PW1/13. He testified that he had then forwarded all the exhibits to FSL vide letter Mark 13/2. He also testified that during the course of investigation, he had formally arrested Rakesh Sharma vide arrest memo Ex PW13/A, and thereafter, the said accused was released on anticipatory bail.
PW14 Sh. Chaman Lal He testified that on 20.09.1998, he was posted as UDC in DDA. He testified that on Concerned UDC from DDA. To prove that day, dealing assistant of file no. conspiracy between F.178(62)94/SFS/JL/II was on leave. He the accused persons testified that he was called by the then AO/ accused JP Gupta and AAO Mahinder Kumar to the office of accused JP Gupta, and he was directed to put up the above mentioned file immediately on the ground that allottee was known to them. He testified that one other person was also present there State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 11 of 40at the said time. He testified that he checked the file and put up a noting thereon that the interest has not been calculated, Ex PW14/A. He also testified that on 18.09.1999, application of allottee was received through management wing and he made his noting thereon, Ex PW14/B. He also testified that on 22.09.1999, application of allottee of flat of Jasola was received through Lok Shivir, and he made notings regarding the same, Ex PW14/C. He testified that the file was again marked to him by the AAO and AO, whereupon he made a noting upon the same that as per the demand letter dated 22.09.1999, an amount of Rs.2,11,305/ is lying in excess, so refund bill is added for signatures and his notings Ex PW14/D were put up before the AAO and AO/SFS for signatures. He further testified that on 28.09.1999, after approval of AO/SFS, the forwarding letter with cheque dated 23.09.1999 for Rs.2,11,305/- were put up before the AAO and AO/SFS, with his notings Ex PW14/E. He also testified that he had prepared the forwarding letter Ex PW14/G regarding the cheque of excess State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 12 of 40amount, and the noting in the file in this regard is Ex PW14/H. PW15 ASI Vijender He testified that he had joined the Formal Witness investigation of this case on 12.02.2001 with IO SI JS Mishra. He also testified regarding the codal formalities discharged by the IO regarding the arrest of the accused persons.
PW16 Ms. Mini Gupta She testified that in the year 1996-97, she had purchased a DDA flat no. 83T, 3rd Floor, Subsequent Purchaser of the Flat Jasola Vihar, New Delhi from accused SK in question.
Goel, property dealer. She testified that she later sold the said flat to accused SK Goel in the year 2011-12. She testified that the flat was allotted in the name of Mohd. Zahid, but she never met him nor did she ever visit the DDA office w.r.t. any dealing qua the flat.
The witness correctly identified her signatures on the photocopy of SPA, Mark 7/G, and also on the document Ex PW1/1.
She testified that the documents were prepared at the office of accused SK Goel.
She testified that she does not remember by what mode she had paid the consideration or received the consideration qua the said flat. She testified that she was handed over the flat by accused SK Goel. She also testified that State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 13 of 40she never received any amount in her account from DDA regarding any refund.
PW17 Ms. Ila Singh She testified that she was posted as FA (Housing) at DDA between April 1996 to Formal Witness/ the then Financial October 2000. She testified that the file no. Advisor, DDA F.178(62)94/SFS/JL/II was never marked to her.
PW18 Sh. V.D. Arora He testified that the Vice Chairman, DDA The then Financial had been delegated the power to fix the price Advisor, DDA for DDA flats, and the same was calculated as per the resolution of DDA after receiving the expenditure data from engineering wing. He also testified that application for refund of excess cost had to be delivered at the counter of housing manager, and AAO/AO were duty bound to ensure that the application had been received from the original allottee, along with authentic documents in support of change of his last address. He also testified that they were also duty bound to ensure the genuineness of the signatures of the allottee on the refund application. He also testified that the refund application had to be processed after the approval of competent authority only.
PW19 Ms. Vandana Kumar She testified that as per the record, the State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 14 of 40The Branch savings bank account bearing no.
Manager, Union 40350210006583 which was jointly held in Bank of India the name of accused SK Goel and Mohd.
Zahid is a dormant account, and the same was sent to RBI DEF Scheme, 2014 dated 26.02.2019. In her testimony, she relied upon the bank account statement Ex PW19/A, and testified that the account opening form with relevant documents of the said account are not traceable.
6. After conclusion of prosecution evidence, separate statements of all the accused were recorded under Section 281/313 CrPC, wherein they claimed to be innocent and denied the allegations levelled against them. Accused SC Chugh out-rightly denied the allegations that he had processed the allotment file of Mohd. Zahid, knowing that it contains forged documents. He stated that at the time of allotment of flat in question to the allottee Mohd Zahid, and the time when his refund for excess amount was processed, he was not posted in the relevant DDA department. Accused Mahender Kumar and J.P. Gupta stated that they had no role to play in the allocation of flat in question to Mohd Zahid, and processed the refund as per the relevant policy dated 31.03.1999. They stated that it was not in the realm of their duties to verify the veracity of the documents of the allottee. Accused Rakesh Sharma stated that he had permitted the opening of the joint bank accounts of accused S.K. Goel and Mohd. Zahid after they were introduced by existing customer Praveen Gambhir. He also stated that all of the State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 15 of 40aforesaid persons were present before him when the formalities for opening of bank account were completed. He also stated that even as per internal inquiry conducted by the concerned bank, it was found that the bank account had been opened as per proper procedure. Accused S.K. Goel also similarly submitted that the joint bank accounts was opened on the basis of account opening form duly signed by Mohd. Zahid himself. He stated that the account was opened after Mohd. Zahid had approached him for selling the aforesaid flat ahead, and had also sought his assistance in ensuring that no default is made in making payments to the DDA. He stated that to ensure that the payments to be made to DDA are adjusted from the consideration amount to be paid by his subsequent buyer, the said account was opened. When on the specific query, accused Mahender, J.P. Gupta and S.C. Chugh opted to lead to DE in the affirmative. Proceedings were accordingly adjourned for leading DE.
7. At the stage of DE, the following DWs were examined by the aforesaid accused:
DW Name Nature of Testimony DW1 Sh. Prahlad Narayan He produced the letter of the then Meena Financial Advisor (Housing), DDA JA/Ahlmad in the court of the undersigned from judicial file in FIR No. 422/2000, Ex. DW1/1 (OSR). He also produced the letter of the then Commissioner (Housing), DDA addressed to DCP EOW Delhi police from judicial file in State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 16 of 40FIR No. 433/2000, Ex. DW1/2 (OSR).
DW2 Sh. Shubham Singh He produced the posting order of Asstt. Accounts Officer, accused J.P. Gupta (Accounts Officer), DDA for the year 1991-2000 Ex. DW2/1 (OSR), and posting order of accused Mohinder Kumar (Asst. Accounts Officer, DDA), Ex.DW2/2 (OSR).
DW3 Sh. Nitin Kumar Sharma He produced the posting order of Sr. Secretariat Assistant, accused S.C. Chugh, (Assisting DDA Director from the office of DDA), pertaining to the year 1991-2000, Ex.
DW3/1 (OSR).
DW4 Sh. Rohit Sachdeva He produced the copy of letter dated Dy. Financial Advisor, 09.11.2006 issued from the file bearing DDA no. JT.FA (H)-I/RTI05/ 3853/233 issued by the office of the then Deputy Financial Advisor in reply to the RTI application of accused Mohinder Kumar, Ex. DW4/1 (OSR).
DW5 Sh. Ashok Kumar He produced the letter dated Director, Housing-I, DDA 08.04.2008 written by accused Mohinder Kumar under RTI and its reply dated 13.05.2008, Ex.
DW5/1(colly).
DW6 Sh. Aniraj Kumar He produced the copy of the JA/Ahlmad State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 17 of 40application filed by the prosecution u/s 311 Cr.PC in FIR No. 483/2000, titled as State vs Jai Prakash and Ors. on 08.03.2018, 11.07.2018 and 19.11.2018, Ex. DW6/1 (Colly).
DW7 Sh. Chirag Gautam He produced the closure report filed by JJA/Asstt. Ahlmad the IO in FIR NO. 157/1993 titled as State vs Final Report in the court of Ld. CJM, South East District, Saket, New Delhi, Ex. DW7/1 (Colly).
DW8 Sh. Deepak He produced the copy of the order JSA, SFS, Housing dated 17.11.1999 issued from the Branch, DDA office of the then Joint Director (SFS), DDA as provided to the accused S.C. Chugh vide reply dated 05.02.2018 under RTI, Ex. DW8/2 (Colly).
DW9 Sh. Mohinder Kumar He deposed in his favour. He testified (Accused himself) that allottee Mohd. Zahid was allotted the flat in question based on his allocation application dated 10.03.1994, Ex DW9/5. He testified that the demand letter as well as the refund cheque subsequently were sent to the allottee mentioned in his allotment file. He also relied upon the RTI reply Ex DW4/1, and testified that State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 18 of 40it was neither his duty nor his responsibility to cross-check the veracity of the signatures of the allottee while processing the accounts file for the purpose of calculation of refund, and stated that even the allotment letter was handed over to the SPA of the allotee after checking all the relevant documents in the check-list Ex PW4/D1. The witness was discharged after cross-examination at length.
8. Proceedings then progressed to the stage of final arguments. Arguments heard. Record perused. Considered.
RELEVANT LEGAL POSITION
9. Before proceeding further, it shall be apposite to discuss the relevant legal provisions which are pertinent for the adjudication of the controversies involved in the present case:
Sections 101 and 106 Indian Evidence Act, 1872
10. It is trite that burden of proving the guilt of the accused beyond reasonable doubt is on the prosecution, and the prosecution is required to State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 19 of 40traverse the distance between "may have" and "must have". This can be surmised from Section 101 of Evidence Act. As per 106 of the aforesaid enactment, the burden of proving any specific fact which is within the knowledge of the accused is on the accused.
Reasonable Doubt
11. Prosecution is required to prove its case against the accused persons beyond every reasonable doubt, and not beyond every doubt. The meaning of expression "Reasonable Doubt" has been explained by the Hon'ble Apex Court in Latesh @ Dadu Baburao Karlekar Vs. The State of Maharashtra, (2018) 3 SCC 66 thus:
"In our opinion, an ingenious mind can question anything and, on the other hand, there is nothing which it cannot convince. When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt."
Section 409 IPC
12. Section 409 IPC provides for the offence of Criminal Breach of Trust by a public servant, who has been entrusted with any property or dominion over any property in his capacity of public servant. The offence of criminal breach of trust itself is defined in Section 405 of the IPC. As per the same, whenever any person is entrusted with any property or with any dominion over any property, dishonestly misappropriates or converts the same to his own use in violation of any direction of law prescribing the mode in which State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 20 of 40such trust has been discharged, or of any express or implied legal contract, he is said to commit Criminal Breach of Trust. The scope of Section 409 IPC can be well understood from the pronouncement of the Hon'ble Apex Court in Som Narth Puri vs The State of Rajasthan, AIR 1972 SC 1490, wherein it was held as under:
"Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. The words 'in any manner' in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount recieved must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to, deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression 'entrusted' in section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person to whom the property is handed over may be an agent of the person to whom it is entrusted or to whom it may belong in which case if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he is entrusted with it."
Section 24 IPC
13. An essential ingredient of the offence of criminal breach of trust, as well as aggravated form of the said offence which is punishable u/s 409 IPC, is the dishonest intention of the accused. Section 24 IPC provides that 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. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 21 of 40Section 197 CrPC
14. Section 197 CrPC provides for the requirement of Sanction for prosecuting a public servant w.r.t. an offence alleged to have been committed by acting or purporting to act in the discharge of his official duty. In the case at hand, accused persons Mahender Kumar, S.C. Chugh and J.P. Gupta were employed with DDA, at the time of registration of subject FIR. However, as it has been alleged that they committed the offence punishable u/s 409/120B IPC, there was no requirement of Sanction u/s 197 CrPC for prosecuting them for the offences alleged. At this juncture, reliance can be placed on the pronouncement of Hon'ble Apex Court titled in Punjab State Warehousing Co. vs. Bhushan Chander and Anr., AIR 2016 SC 3014, wherein it has been held that:
"A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single Judge has placed reliance on the authority in B. Saha's (supra). The conclusion is based on the assumption that the allegation is that while being a public servant, the alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entrustment and missing of the entrusted items. There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the State vs. Mahinder Kumar & Ors.FIR No. 434/2000, PS: Kotla Mubarakpur Page 22 of 40
prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha (supra) has distinguished in Shreekantiah Ramayya Munipalli (supra) keeping in view the facts of the case. It had also treated the ratio in Amrik Singh (supra) to be confined to its own peculiar facts. The test to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dube (supra) which we have reproduced hereinbefore. The three-Judge Bench in B. Saha (supra) applied the test laid down in Gill's case wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office."
Section 471 IPC
15. Section 471 IPC provides that any person who uses as genuine a forged document shall be punished in the same manner as if they had forged the document themselves. What is a forged document is itself defined in Section 464 IPC. For the purposes of the case instant, a person can be said to have forged a document if he dishonestly or fraudulently makes, signs, seals, or executes a document or part of document with the intention of causing it to be believed that such document or part of document was made, signed, sealed, executed, transmitted, or affixed by or by the authority of a person by whom or by whose authority he knows it was not made, signed, sealed, executed or affixed. In the case Md. Ibrahim and Ors. Vs. State of Bihar and Anr., (2009) 8 SCC 751, it was held that:
"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 practicing deception, or from a person State vs. Mahinder Kumar & Ors.FIR No. 434/2000, PS: Kotla Mubarakpur Page 23 of 40
not in control of his senses."
Section 120B IPC
16. Section 120A IPC defines the offence of conspiracy, and punishment for the same is provided u/s 120B IPC. In Pratapbhai Hamirbhai Solanki vs. State of Gujarat, (2013) 1 SCC 613, the scope of offence punishable u/s 120B IPC was explained thus:
"23. In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
Section 313 CrPC
17. Statement of the accused u/s 313 CrPC is also relevant for the Court while deciding a case, and the opportunity accorded to accused to explain the incriminatory material brought on record by prosecution, is an opportunity to cast incredulity upon such material. Where the statement of the accused provides links or aids the case of prosecution, the same can also be considered by the Court while finally adjudicating the case. Reliance at this juncture can be placed on Md. Aslam vs State, CRL. A. No. 214/2016, Hon'ble High Court of Delhi (DOD 25.04.2016), wherein it was held as under:
State vs. Mahinder Kumar & Ors.FIR No. 434/2000, PS: Kotla Mubarakpur Page 24 of 40
"6.47 Answers given in statement recorded u/s 313 Cr.P.C. have also some relevance. Though, such statement u/s 313 Cr.P.C. is not a substantive piece of evidence since it is not recorded on oath nor it is subjected to any cross examination, yet such statement can, be taken into consideration, at the trial, against the accused for the purpose of arriving at the guilt or otherwise of the accused. Since no oath is administered to the accused, the statements made by the accused will not be, strictly speaking, evidence. Sub-section (3) also says that the accused shall not render himself liable to punishment if he give false answer. But, then comes sub-section (4), which provides that answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. Thus, the answers given by the accused, in response to his examination, under Section 313, can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly construed as evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. However, such self- incriminating statement indicting co-accused cannot be said to be sufficient in itself. The court can rely on a portion of the statement of the accused and find him guilty but such statement should not be considered in isolation but always in conjunction with evidence adduced by the prosecution. Reference be made to SANATAN NASKER VS. STATE OF BENGAL AIR 2010 SC 3570."
ANALYSIS AND FINDINGS
18. The facts of the case shall be analyzed through the prism of the legal position enunciated above.
In Re: ACCUSED MAHINDER KUMAR, S.C. CHUGH, AND J.P. GUPTA
19. At the outset, it merits to be adjudicated if the accused have been wrongly prosecuted, for want of appropriate sanction u/s 197 CrPC against them, as argued. To prove that a valid sanction had been obtained to prosecute the accused persons, prosecution examined PW3 Sh. K.P. Lakshmana Rao. He testified that on the relevant day, he was posted as State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 25 of 40Finance Member of DDA and had granted the sanctions under Section 197 CrPC for prosecution of accused Mahinder Kumar, S.C. Chugh, J.P. Gupta, after carefully examining the material placed before him in regard to their illegal activities in the capacity of their being public officers by the Crime Branch, Delhi Police. He testified that the sanctions granted by him are Ex PW3/A, Ex PW3/B and Ex PW3/C.In his cross-examination, he testified that he had received the documents along with the broad format for sanction for prosecution along with crime branch report, and he accorded sanction after perusing the record. He testified that he did not conduct any separate enquiry against accused Mahinder, J.P. Gupta and S.C. Chugh before according sanction, but relied upon the report of Director (Housing), DDA, Crime Branch and FIR. It is seen that in his cross examination, the witness conceded to lack of knowledge of the facts on the basis of which he accorded the sanction for prosecution against the accused persons. However, given the position of law discussed in the foregoing portions of this judgment, that where an offence such as one punishable u/s 409 IPC has been alleged against public servants, which offence cannot be said to have been committed by them in discharge of their official duties, there is no requirement for a prior sanction under Section 197 CrPC for prosecuting such public servants, the existence of some loopholes in the testimony of the witness does not adversely affect the prosecution case. The objection taken by the aforesaid accused that the prosecution against them is bad in law for want of proper sanction can thus, be set at naught.
20. The subject proceedings have been initiated not by the allottee Mohd. Zahid, but at the complaint of Sh. Amar Chhaterjee. As per the subject-line of the said complaint Ex PW4/A, the flat in question was State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 26 of 40fraudulently allotted to the allottee. The complaint describes how there were discrepancies in the multiple allotment letters received by DDA from the allottee Mohd Zahid, despite which the flat was allotted in his favour. It is alleged that not only the said documents were suspicious, but the letter requesting refund was also fake, despite which it was processed. It is alleged that against accused J.P Gupta and Mahender that they processed the said documents, and basis the said documents and fake conveyance documents allegedly executed by Mohd Zahid in favour of one Mini Gupta, and handed over the possession letter to her. Prosecution, however, has failed to conclusively establish that the said documents are forged. The transfer and posting orders of the accused persons, Ex DW2/1, Ex DW2/2 and Ex DW3/1, contents of which are uncontroverted, conclusively establish that accused persons were not posted in the relevant departments when the flat in question was allotted to the allottee Mohd Zahid. For any discrepancies in the applications for allotment received from him, and the fact that they were ignored when he was allotted the flat in question, liability cannot be affixed upon the accused. The allegation that accused Mahender, SC Chugh and JP Gupta wrongly and intentionally processed the fake documents at the time of issuance of possession letter and the refund shall be examined. The allottee Mohd Zahid, upon being confronted with the conveyance documents, testified as PW7 that signatures on some of the documents, including the SPA filed in favour of Ms. Mini Gupta, are his genuine signatures. He stated that when he signed the documents, they were blank. The latter part of his testimony does not appear to be believable, given his own admission that he had sold the registry documents of the flat in question to some person, a few years after being allotted the flat. At the time of the sale, he admittedly executed certain documents, although he failed to specify their nature.
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 27 of 40Having admitted both the sale of the flat, as also the fact that he had signed certain documents at the time of its sale, it can be inferred that the witness deliberately tried to be obfuscatory by testifying that some documents, when he signed them, were blank, and later professing lack of memory on various pretexts. Be that as it may, given his admission of sale of the flat in question, it appears to be probable that all the documents available with DDA, including the SPA in favour of Mini Gupta, were genuinely executed by him.
21. His purported SPA Mini Gupta testified that she had indeed purchased the flat in question through property dealer/accused SK Goel, to later sell it back to him. She also admitted her signatures on all the conveyance documents executed in her favour, but stated that she had never met Mohd Zahid. In her cross examination, at one point she stated that she had not met Mohd Zahid at the office of concerned sub-Registrar, but later contradicted herself. Even if it is presumed that she never met Mohd Zahid before the instant trial commenced, while this fact speaks of improper execution of the documents, the same by no stretch establishes that the said documents are forged. At best, it can be inferred that the buyer and seller signed the documents at different points in time, but not that their signatures on the same are forged. The said documents already being available on management file of the allottee when it was taken up by the accused persons, no liability can be affixed on them for processing the said documents.
22. PW Ms. Nirmala Nayyar denied the attestation of the above conveyance documents in her examination in chief. Interestingly, during her testimony, only faded, illegible photocopies could be put to her, and she testified in her cross examination that the stamps on the documents Mark State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 28 of 40PW1/1 to Marl PW1/5 are not fully legible, yet without hesitation, the same were disowned by her. She admitted that she does not even have the valid record to cross-check if she had indeed attested the signatures, that relevant registers which she was bound to maintain are not on record, and also admitted that she cannot specify in what manner the stamps on the documents differ from her original stamps. Despite the same, she insisted on disowning her stamps and signatures on the documents, as if in a motivated manner. Given the shaky nature of the testimony of the witness herself regarding her own stamps and signatures, accused persons cannot be faulted with for issuing a possession later in favour of Ms. Mini Gupta basis the said documents. Even if the testimony of the witness is believed to be true, it is seen that she didn't say that the stamps on the documents are such as are apparently forged, and any reasonable person would have known them to be false at the first instance. Minus evidence of this nature, no liability can be fastened upon the accused for processing the said documents.
23. Pertinently, the aforesaid documents bearing the purported signatures of allottee Mohd. Zahid were also sent for forensic examination. The result along with the original exhibits, was collected from FSL, but the same was not filed on record. PW5 Inspector Satyaprakash testified that as the original result could not be traced, he obtained the certified attested copy of the FSL report and the exhibits, which were filed along with the supplementary charge sheet. The testimony of this witness was not controverted. It lay the ground for prosecution to place on record secondary evidence of the said FSL result. The FSL result has been proved by PW6 Sh. Amilal Daksh. As per the FSL report Ex PW6/A, the refund request letter and the bank account opening form do not bear the genuine signatures of the allottee Mohd. Zahid.
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 29 of 40However, the conveyance documents including the SPA in favour of Mini Gupta, undertaking, no sale affidavit executed by Mohd. Zahid bear his genuine signatures. The FSL result is inconclusive qua the remaining documents. Considering that some of the documents placed before the DDA officials, especially the SPA executed in favour of Smt. Mini Gupta, contain the genuine signatures of allottee, in what manner the prosecution proposes to affix liability upon the accused persons merely because they processed the said documents is not clear. The cloud on the prosecution case thickens in view of categorical testimony of PW12 Sh Pawan Kumar Sharma that he had verified the correctness of the documents of the allottee before putting the same before his superintendent, who also verified the documents. This testimony indicates that the file was processed at all levels before being put before the accused for issuance of possession letter, and was processed by them per relevant rules.
24. The allotment applications of the allottee Mohd Zahid for different flats have discrepancies inter-se. Yet, he was allotted the flat in question by DDA officials, not being the accused, who were not posted in the relevant department at the relevant time, as is clear from the testimonies of DW2 and DW3, who proved the posting orders of the accused. In fact, testimony of PW4 Sh. Amar Chatterjee also establishes that the accused had no role to play in the allotment of the flat, which was done in a computerized system. Still, no liability has been fastened on any officials responsible for allotment in favour of the allottee. No liability has been affixed on the allottee also, for selling the DDA flat ahead, which was impermissible. All that the accused did was to issue a possession letter, and later refund excess amount paid on behalf of allottee for the said flat. There exists a reasonable doubt that the State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 30 of 40signatures on the conveyance documents looked into by the accused before issuing possession slip indeed belonged to the allottee. That they issued a possession letter in favour of Mini Gupta wrongly, basis forged documents, is a charge the prosecution has failed to establish , by failing to prove that the said documents are false to begin with.
25. It is next alleged against the accused that they processed the refund of excess amount in favour of the allottee basis a fake request letter, causing wrongful loss to DDA and wrongful gain to accused SK Goel. PW7 Mohd Zahid denied his signatures on the refund letter, and his testimony in this regard can be believed, as the overall sentiment of his deposition that once he sold the flat in question, he had no dealings with regards the same at any future point, is in conformity with such testimony. It is also supported by the FSL report, Ex PW6/A. However, the signatures on the said letter are not so apparently false that the forgery would be visible to the naked eye. So, accused persons cannot be faulted to have believed his signatures to be genuine, given their similarity with his genuine signatures. Also, it is of importance that in his testimony, PW4 Amar Chatterjee stated that the reduction of the cost of the flat in question was as per the DDA policy dated 31.03.1999, and that the refund had to be processed even without an application. It appears that the refund had to be processed by the accused persons irrespective of the request letter, and thus, imputing ill-motive to them for processing the said refund appears to be absurd.
26. The very question of refund pertains to the policy of DDA dated 31.03.1999. It merits to be ascertained if, as per the aforesaid policy, Mohd. Zahid was entitled to any refund in the first place or not. In this regard, PW2 State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 31 of 40D.B Gupta testified that as per the policy dated 31.03.1999, which came into force with immediate effect, the refund made in favour of allottee was proper. PW14 Sh. Chaman Lal testified that as per his noting Ex PW14/C in the allotment file of the allottee, the allottee was entitled to refund of Rs 211305/- as per demand letter dated 22.09.1999. PW 17 Ms Ila Singh also testified in this regard that as per the note Ex PW17/D1 pertaining to the VC observation on PUC dated 27.08.1999, which records the factum of a public hearing in the office of the Vice Chairman of DDA on the said date, refunds in all cases where possession of flat had been given, had to be processed in the same manner as that of cases where possession was not handed over to allottees. PW13 IO ACP JS Mishra testified that the refund was processed as per the policy dated 18.06.1998, which entitled the allottee to the refund despite the fact that he made the payment of the last instalment post 22.08.1996, the cut off in the earlier policy. He also agreed that he collected no document during investigation as per which the allottee was not entitled to a refund. Moreover, running contrary to the prosecution case, PW2 Sh. Devendra Bhushan Gupta also deposed on oath that allottee Mohd Zahid was entitled to a refund as per the relevant DDA policy. The refund being processed as per the relevant policy, the accused can be ascribed no fault for processing it.
27. It is alleged that the accused didn't have competence to process the refund. Even this allegation couldn't be established by the prosecution. PW2 DB Gupta stated in his examination in chief that since the refund in favour of the allottee was processed without the permission of the Vice Chairman, DDA, the same was bad. However, he admitted in his cross examination that neither any departmental action was taken against the accused qua the refund, nor the refund or allotment of flat in question was cancelled. This fact State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 32 of 40impels the Court to raise the inference that the refund was not processed wrongly. PW 18 VD Arora testified that the refund had to be processed as per the approval of the competent authority, but in his cross examination, stated that he does not know who was the competent authority at the relevant time. Similarly, PW4 Amar Chatterjee testified that every refund had to be processed by the Vice Chairman, but failed to cite any rule etc in this regard. Their testimonies, thus, do not further the prosecution case. PW17 Ila Singh's testimony assumes importance at this juncture. She categorically proved that her office note Ex PW17/D1 was processed by the then Commissioner, Housing, DDA, as per which refunds had to be processed as per the existing policy, impliedly without any specific approval of any authority. The testimonies of prosecution witnesses indicate that no requirement for approval of any authority existed. The letters of the FA (Housing) dated 05.01.2001 Ex DW1/1 and of the then Commissioner of DDA, Sh. DB Gupta Ex DW1/2, as also the reply received by accused Mahinder to his RTI application Ex DW5/1, further establishes the fact that there was no defined procedure in DDA per which it can be held that the refund was processed wrongly.
28. It is also a matter of record that after the refund was processed, the refund cheque was issued in the name of the allottee, and sent to his postal address as available on file. PW2 DB Gupta confirmed the same in his testimony. While PW7 Mohd Zahid stated that he never lived at Sarita Vihar, where the cheque was sent, he admitted his signatures and photograph on the application form Mark PW7/M, dated 04.01.1994, vide which the said address came on record. PW 13 IO ACP JS Mishra also conceded this fact in his cross-examination. As discussed above, the accused persons were not State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 33 of 40posted in the department concerned when this address of the allottee was taken on record. Since the refund cheque issued in favour of the allottee was sent by them at his postal address already on record, no criminal liability can be affixed on them for not doubting the veracity of the said address. It is the case of prosecution that the refund cheque was wrongly sent to accused SK Goel (property dealer) by the accused. But no evidence to establish this allegation has been brought on record when specifically asked as to who actually owned the residence mentioned on his applications, if they were not owned by allottee Mohd. Zahid, the IO vaguely stated that he does not remember the said fact. It is apparent that no investigation was done to establish that the address where the cheque was sent belonged to co-accused SK Goel, and no criminal liability can be affixed on accused on this count either.
29. It is also alleged against them that the refunds were processed with undue haste by 09 officers of DDA, including the accused. Why no action was taken against remaining 06 officers could not be explained by the IO ACP JS Mishra in his testimony. Moreover, the various notings on the management file of the allottee makes it clear that it was processed as per proper procedure. Even PW14 Sh Chaman Lal testified that when asked by the accused to process the refund quickly, on the file of allottee received through Lok Shivir on 22.09.1999, he had prepared the calculation sheet Ex PW14/F (colly), the forwarding letter of cheque of excess amount Ex PW14/G, before putting up the noting Ex PW14/H for approval before accused Mahender Gupta and accused JP Gupta. The testimony of PW14 makes it amply clear that the refund was processed as per proper procedure, and not undue haste.
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 34 of 4030. The case of prosecution is also that the possession letter was wrongly handed over to SPA of Mohd Zahid, namely Ms Mini Gupta. In this regard as well, the case of prosecution remained not proved. As per the record, the possession slip of the flat in question was issued in favour of one Ms. Mini Gupta, the SPA of allottee Mohd. Zahid. If the SPA basis which she obtained the possession letter was a forged and fabricated document, she ought to have been arrayed as an accused, but the same has not been done. When examined as PW16, she stated that she had signed the SPA herself, and also admitted her signatures on the possession letter Ex PW16/D2, but stated she never went to DDA office to collect it. At best, it can be surmised that the letter was collected by someone on her behalf. Since the letter otherwise is genuine, accused cannot be held guilty of legerdemain merely because PW16 never visited DDA office herself. It merits mention that as per the prevalent rules of the DDA, the allottee Mohd. Zahid was not supposed to transfer ahead the flat until the possession slip was issued in his favour. It is for this reason that he was required to file an affidavit to the effect that he had not transferred ahead the property. PW11 Sh. Amar Chatterjee also testified that as per the conditions of allocation-cum-demand letter, the allottee was not supposed to transfer the property ahead. Yet, it is a matter of record that the property was sold ahead by him. PW/IO ACP J.S. Mishra admitted in his testimony that during the investigation he had come to know that allottee Mohd. Zahid had sold ahead the property. Still, no action was taken against him, and merely a case has been set up that possession letter was wrongly issued to his SPA, although the said SPA Ms. Mini Gupta also admitted to having paid consideration amount for the flat in question, needless to say, in exchange of conveyance documents in her favour by the allottee. Reasonability of State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 35 of 40questioning veracity of conveyance documents is not clear. Now, PW11 Sh. Amar Chatterjee admitted that there was no embargo on the instalment w.r.t. a flat being paid by someone else on behalf of the allottee. PW3 Sh. Devendra Bhushan Gupta also testified that there existed no rules/regulations/by-laws/ standing order prohibiting other person to deposit money on behalf of the allottee. In this light, when the record of the case is perused, it is seen that payments on behalf of the allottee were also made by some other person. After completion of the payment, the possession slip was handed over to SPA of the allottee. Since the payments were also not made by the allottee directly, the fact that the possession slip was issued in favour of his SPA is not sufficient to affix criminal liability upon the accused persons. This is more so in view of the factual trajectory of the present case, as per which neither the allotment of the flat was ever cancelled, nor any complaint was received from allottee Mohd. Zahid regarding the fraudulent allotment of the flat in favour of some other person.
31. In all, the prosecution failed to establish that the accused lacked the competence to process the refund of the excess amount of flat. It is further established that the refund was processed as per the prevalent DDA policy, and money was refunded to the allottee on his postal address as available on record much prior to the accused getting posted at instrumental posts. No procedural or legal lapses are seen to be committed by the accused in these respects as would make them liable for criminal liability. As such, case of prosecution against accused S.C. Chugh, J.P. Gupta and Mahender Kumar is found to be replete with multiple crevices, and it cannot be held that their guilt has been proven beyond reasonable doubt State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 36 of 40ACCUSED RAKESH SHARMA AND S.K. GOEL
32. As per the prosecution story, accused S.K. Goel and Rakesh Sharma were also complicit in the conspiracy to cheat the DDA, along with the remaining accused persons. According to the prosecution, the cheque in question was wrongfully encashed by accused S.K. Goel in a joint bank account opened at the Union Bank of India, with the aid and collusion of co- accused Rakesh Sharma, who was the Branch Manager of the concerned bank.
33. However, the prosecution has failed to establish how, in the first place, the cheque came into the possession of accused S.K. Goel. As discussed in the foregoing portions of this judgment, it is clear that the cheque in question was issued in favour of the allottee and was sent to his address as available in the records of the DDA since 1994. There is no material on record to suggest that the address mentioned in the refund application dated 16.09.1999 belonged to accused S.K. Goel. As such, there is nothing to indicate that the cheque came into his hands wrongfully.
34. As regards the opening of the bank account in the name of accused S.K. Goel and allottee Mohammad Zahid, the Investigating Officer stated that the account opening form of Mohammad Zahid was duly accompanied by his photograph, and perhaps his ration card as well. The said bank account was opened at the introduction of PW8 Parveen Gambhir. PW8 testified in his examination-in-chief that when he signed the account opening form as the introducer, the form bore only the signatures of accused S.K. Goel and not that of the allottee Mohammad Zahid. However, in his cross-
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 37 of 40examination, the witness stated that he did not remember the exact number of people who were present with accused S.K. Goel in the bank when he signed the form, and further, he could not say whether Mohammad Zahid was present at that time.
35. When the testimony of this witness is considered as a whole, it is evident that it cannot be relied upon to hold beyond reasonable doubt that the account opening form did not bear the signatures of Mohammad Zahid, or that he was not present at the time the account was opened. Even when his testimony is considered along with that of PW7 Mohammad Zahid who stated that after selling the flat in question, he had nothing further to do with it, it still cannot be conclusively held that he never signed the documents relating to the bank account, particularly since he had admittedly signed several conveyance documents concerning the same flat around that time.
36. Although the FSL report, based on a photocopy of the joint bank account opening form, concluded that the said form was forged, this finding is not corroborated by the ocular testimony of witnesses on record. Furthermore, while the prosecution examined PW19 to prove that the refund amount was misappropriated by accused S.K. Goel, the witness failed to produce any account statement of the relevant person to substantiate this claim. The statement Ex PW19/A brought by her on record pertains to 17.04.2004 - 26.02.2019, and it cannot be deduced therefrom that accused SK Goel misused the cheque amount. Reasonable dout exists that the amount was withdrawn by Mohd. Zahid himself. There is not even circumstantial evidence on record to suggest that the excess amount was wrongfully misappropriated by accused S.K. Goel.
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 38 of 4037. Additionally, the IO admitted that no action was ever taken against accused Rakesh Sharma by the Bank Management for having facilitated the opening of the joint bank account on the basis of an allegedly forged form. The IO also conceded that there was no document or circumstance on record to indicate the existence of any criminal conspiracy among the accused persons.
38. In conclusion, when the entirety of the evidence is examined, it becomes evident that the prosecution has failed to establish the essential ingredients of the offences alleged against accused. The evidence on record neither proves that the cheque in question came into the possession of accused S.K. Goel through fraudulent means, nor that the account was opened on the basis of forged or fabricated documents with his knowledge or consent. The allegations of conspiracy also remain wholly unsubstantiated. In view of these infirmities and the lack of credible corroborative evidence, the benefit of doubt must necessarily go to the accused. Accordingly, both accused S.K. Goel and Rakesh Sharma deserve to be acquitted of the charges framed against them.
39. The prosecution has miserably failed to prove its case against the aforesaid accused pertaining to the offence punishable u/s 471 IPC.
40. It is pertinent to mention at this stage that the accused persons have also been charged with the offence of conspiracy. However, no evidence, documentary or oral, has been brought on record by the prosecution to show any such connivance between the accused persons. Prosecution has not State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 39 of 40brought on record any evidence to even show that the said accused were acquainted with each other, much less to show that they had illegally gain anything out of the transaction pertaining to the flat in question, and had then distributed the gains. Accordingly, they are acquitted of the offences punishable u/s 120B IPC.
CONCLUSION
41. All in all, for want of sufficient evidence against them, accused persons namely, Mahender Kumar, Subhash Chander Chugh, Jai Prakash Gupta, Rakesh Sharma, Sri Krishan Goel and Sunita Goel stand acquitted of all charges levelled against them.
42. File be consigned to Record Room after due compliance of Section 437A CrPC.
Digitally
Pronounced in open Court on signed by
16.10.2025 in the presence Medha Medha arya
Date:
of accused. arya 2025.10.16
17:37:18
+0530
(Medha Arya)
Additional Chief Judicial Magistrate
South District, Saket Courts, New Delhi
16.10.2025
State vs. Mahinder Kumar & Ors.
FIR No. 434/2000, PS: Kotla Mubarakpur Page 40 of 40