Delhi District Court
Sebastian vs . R. Jawaharaj & Anr. Crl. Appeal No. 359- on 8 April, 2019
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of : Digitally
signed by
POOJA
State POOJA TALWAR
TALWAR Date:
2019.04.12
Vs. 18:25:13
+0530
Balwant Singh & Anr.
FIR No. 776/2007
P.S Mehrauli (EOW)
JUDGMENT
1. Sr. No. of case 2035001/2016
2. Date of institution 20.12.2008
3. Name of the complainant Ms. Archana Maheshwari
W/o Sh. Vipul Maheshwari
R/o C-75, Neeti Bagh, New
FIR No. 776/2007 PS Mehrauli (EOW) Page- 1 of 36
Delhi.
4. Date of commission of offence June-July, 2007
5. Name of accused 1. Balwant Singh
S/o Sh. Sardar Fauza Singh
R/o House No. 305/2, 100 Foota
Road, Chhattarpur, New Delhi.
2. Satbir Singh Yadav
S/o Ram Swaroop Yadav
R/o 21-B/402, NIT Faridabad,
Haryana. (proceedings stood
abated vide order 17.07.2012)
6. Offence complained of U/s 419/420/467/468/471/120 B
IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 29.03.2019
9. Final order Convicted
10 Date of such judgment 08.04.2019
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of prosecution is that a complaint was filed by one Archana Maheshwari alleging that sometime in year 2007 one Satbir Singh Yadav, Kishan and Gaurav Ahuja accompanied FIR No. 776/2007 PS Mehrauli (EOW) Page- 2 of 36 with Mohinder Kaur, Sardar Balwant Singh approached her for sale of a farm house no. 5, DLF, Chhattarpur, New Delhi. Said Mohinder Kaur showed the original title documents in her name and Satbir produced a photocopy of sale deed executed by Mohinder Kaur in his favour. A copy of public notice advertised in Dainik Jagran was also shown. After negotiation, a consideration amount of Rs. 80 lakhs was fixed and Rs. 10 lakh was to be paid to the brokers. Sardar Balwant Singh was known to the complainant as he had the farm house next to the complainant. After receipt of Rs. 80 lakhs by way of pay order, Mohinder Kaur executed the Agreement to Sell, GPA, Will, possession letter duly witnessed by Satbir Singh Yadav and Gaurav Ahuja. She also handed over the vacant possession of the farm house to the complainant. After few days, Mohinder Kaur, Satbir Singh Yadav and Baldev came to the complainant and returned the pay order of Rs. 48 lakhs for replacement on the pretext that the account opened in the Centurion Bank in the name of Mohinder Kaur introduced by Balwant Singh was seized. Mohinder Kaur was asked to collect the fresh Bank Draft after few days but she did not turn up. The address furnished by Mohinder Kaur was found to be fake. On complaint of FIR No. 776/2007 PS Mehrauli (EOW) Page- 3 of 36 complainant FIR was registered and investigation was carried out.
During investigation, both the addresses furnished by Mohinder Kaur were found to be fake and the address of GK-II, one Mohinder Kaur W/o Sh. Sewa Singh Kalra was residing. She stated that she had nothing to do with the property in question.
It was also revealed during investigation that accused Satbir Singh Yadav tried to sell the property to one Ajay Alok and when he found the status of the property, he called off the deal. It was also revealed from Sub Registrar Office that the property is under acquisition. In the bank account opened by Mohinder Kaur she was introduced by Balwant Singh who was already having the account in the said branch.
Mohinder Kaur could not be arrested. Accused Satbir Singh Yadav despite having the knowledge that the property in question did not have a clear title offered her to buy the same. Accused Balwant Singh conspired with Satbir Singh Yadav and Mohinder Kaur in order to facilitate the said deal. On completion of investigation qua accused Satbir Singh Yadav and FIR No. 776/2007 PS Mehrauli (EOW) Page- 4 of 36 Balwant Singh, chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence of under section 120B and section 419/420/467/468/471/34 IPC was framed against accused Balwant Singh. During the pendency of trial, accused Satbir Singh Yadav expired and proceedings qua him stood abated vide order dated 17.07.2012.
3. In order to prove its case, prosecution examined 20 witnesses in all.
4. Sh. Harvinder Singh was examined as PW1. He deposed that on 25.07.2007, he received an envelop from Centurion Bank of Punjab which was addressed in the name of his mother Smt. Mohinder Kaur. He opened the envelop and found a cheque- booklet. He was surprised as he, his mother or any member of his family had not opened any account with this bank. On 26.07.2007 he again received an envelop from the same bank. He did not open it but he could see from the window of that envelop that was containing some PIN or password. As he had no concern with these documents so he approached Centurion FIR No. 776/2007 PS Mehrauli (EOW) Page- 5 of 36 Bank of Punjab and apprised the Manager of bank that he had been receiving these documents and asked him to contact the Bengali Market Branch of said bank from where the above said cheque book was issued and requested him to freeze this account. He lodged a written complaint in PS CR Park on 28.07.2007 and the copy of same was also personally delivered to Centurion Bank of Punjab, Bengali Market Branch. On 01.12.2007 he handed over the above said cheque book, closed envelop, copy of Election I Card of his mother and copy of complaint to IO which was seized by him vide seizure memo Ex.PW1/A. Documents are Ex.PW1/P1 to Ex.PW1/P4. He and any member of his family member had no concern with the Farm No. 05, Mulburry Avenue, DLF, Chhattarpur, New Delhi.
5. Sh. S.C. Maheshwari was examined as PW2. He deposed that in the year 2007, Sardar Balwant Singh (accused herein) whose farm was besides their farm in the DLF came alongwith Mohinder Kaur, Satbir Singh Yadav (broker), Gaurav and brother of Mohinder Kaur. They all came to his office and told him that they wanted to sell 2 acre farm no. 5 Mulberry DLF and showed him all the relevant documents of said land. Accused Balwant Singh and other persons offered the FIR No. 776/2007 PS Mehrauli (EOW) Page- 6 of 36 agricultural farm for sale. The same was settled at Rs. 80 lakhs and Rs. 10 lakhs for brokers. They showed him the relevant papers. Accused Balwant Singh identified the lady as Mahinder Kaur and he believed him because he knew Balwant Singh as he had an agricultural farm nearby his agricultural farm in DLF. Balwant Singh had also a petrol pump at Connaught Place. He himself and his daughter-in-law namely Ms. Archana Maheshwari in whose name the property was purchased, made the payment of Rs. 5 lakhs each to both the brokers in the name of Satbir Yadav and Rs.80 lakhs were paid to Mahinder Kaur through three bank drafts; one for Rs.22 lakhs, second was for Rs.10 lakhs and third one of Rs. 48 lakhs. Before finalizing the deal, he called for objections from several public by publication in newspaper. After due diligence he got Agreement to Sell, General Power of Attorney, Special Power of Attorney etc executed by Mahinder Kaur which was duly witnessed by both the brokers. The aforesaid documents were handed over by him to IO on 03.11.2007. IO seized the aforesaid 19 documents vide seizure memo Ex.PW2/A. He also handed over two documents to IO which were seized by IO vide seizure memo Ex.PW2/B. The original sale deed dated 12.04.1972 is Ex.PW2/C and FIR No. 776/2007 PS Mehrauli (EOW) Page- 7 of 36 original GPA dated 13.06.1962 is Ex.PW2/D. He also handed over eight documents to IO which were seized by IO vide seizure memo Ex.PW2/E. Original GPA dated 26.07.2007 is Ex.PW2/F, original Will dated 26.07.2007 is Ex.PW2/G, original lease deed dated 26.07.2007 is Ex.PW2/H. Documents i.e indemnity bond, undertaking and affidavit, all dated 26.07.2007 are Ex.PW2/I, Ex.PW2/J and Ex.PW2/K. Original SPA dated 26.07.2007 is Ex.PW2/L, original agreement to sell dated 26.07.2007 is Ex.PW2/M, original receipt dated 26.07.2007 is Ex.PW2/N, original possession letter is Ex.PW2/O. The same day, i.e 26.07.2007, the possession of farm house was handed over to them by seller and they employed the same security guards who were in the service of seller. After two days on 28.07.2007 late P.D. Goyal and his son Vijay Goyal alongwith 20-25 miscreants came at the farm house and snatched the gun from the security guard and started beating them. They were medically examined at AIIMS Hospital. The incident was reported and an FIR was lodged. But the IO did not array late P.D. Goyal, his son Vijay Goyal and his companions as accused in this case. The documents and photographs which were supplied by him to IO on 03.11.2007 are marked as Mark FIR No. 776/2007 PS Mehrauli (EOW) Page- 8 of 36 PW2/A (colly) and the photographs are Ex.PW2/P (colly). Accused Balwant Singh identified the co-accused who impersonated herself as Mahender Kaur as the genuine Mahender Kaur. While introducing her in Centurion Bank to open her account, Balwant Singh became an introducer of co- accused as he was already having an account in the said branch. Out of aforesaid amount of Rs. 32,00,000/-, an amount of Rs. 16,00,000/- was paid by co-accused (i.e false Mohinder Kaur) to Dr. Ajay Alok, who was also a conspirator in commission of the crime alongwith other co-accused persons and shared the cheated amount. The said amount of Rs. 16,00,000/- was deposited in the account of Dr. Ajay Alok. He shared the cheated amount alongwith other co-accused persons. He further deposed that he mentioned the same to IO as well as the Senior Supervisory Police Officer. He also brought this fact to the notice of Senior Supervisory Police Officer against Dr. Ajay Alok but no action was taken and even the money lying in his account was not recovered and handed over to complainant. Witness correctly identified the accused before the court.
6. Complainant Ms. Archana Maheshwari was examined as PW3. She deposed that in the month of June-July, 2007 Satbir FIR No. 776/2007 PS Mehrauli (EOW) Page- 9 of 36 Singh Yadav, Balwant Singh and Gaurav Ahuja came alongwith a lady whose name was Mohinder Kaur to her office at Safdarjung Enclave and told her that there was a property in the name of Mohinder Kaur at Chattarpur 5 Mulberry Avenue. As they already had a farm near the said land so they insisted them to purchase the above said land at Chhattarpur 5 Mulberry Avenue. Accused Balwant Singh also had a farm in the said area and he knew her father-in-law so he insisted to purchase the land and showed her the khasra khatoni of said land of Chhattarpur 5 Mulberry Avenue. The khasra khatoni is Ex.PW3/A. Then they made a final deal of land for an amount of Rs.80 lakhs, out of which Rs.10 lakhs was to be paid to Satvir Singh Yadav and Gaurav Ahuja as brokerage. Accused Satbir Singh Yadav showed her the photocopy of sale deed that the said property belonged to Mohinder Kaur. Then she gave a cheque bearing no. 643835 dated 13.07.2007 for a sum of Rs. 22 lakhs to Mohinder Kaur which is marked as Mark A and another cheque bearing no. 643966 dated 23.07.2007 of Rs.10 lakhs to Mohinder Kaur vide Mark B. Thereafter a sale deed and Power of Attorney were given by Mohinder Kaur in favour of Smt. Poonam Maheshwari W/o Late Y.C. Maheshwari. Power of Attorney is Ex. PW3/B FIR No. 776/2007 PS Mehrauli (EOW) Page- 10 of 36 alongwith Will Ex.PW3/C in her favour. The cheque of Rs. 22 lakhs was returned back by the bank because of the wrong address of Mohinder Kaur. Thereafter, accused Satbir Singh and Balwant Singh told her to deposit the said amount in the bank situated in Guwahati. Thereafter no one came to receive the said cheque. Then she tried her best to trace Mohinder Kaur but she could not be traced.
7. Dr. Ajay Alok was examined as PW4. He deposed that in the year 2007, he met accused Satbir Yadav (since expired) at the residence of his friend Dharmender Yadav at Rajokari Village where they suggested that they had a land at DLF, Chhattarpur Farm measuring 2 ½ acres and the same was available for Rs. 5 crores. Thereafter, they went to said plot/land and he liked the same. When he demanded papers pertaining to said land, they asked him to give a token of Rs. 25 lacs and then they would give the xerox copy of originals. The deal was finalized for Rs. 4.8 crore and token amount of Rs. 16 lakhs was given to accused Satbir Yadav for handing over the said amount to alleged owner Mohinder Kaur. Receipt was also issued by Mohinder Kaur and same was given to him by accused Satbir Singh Yadav. He got verified the documents from the office of ADM, Mehrauli and FIR No. 776/2007 PS Mehrauli (EOW) Page- 11 of 36 found that the land was under dispute under section 4 of DDA. Thereafter, he contacted accused Satbir Singh Yadav and demanded his money back to which he assured that he would return the amount in 1 - 2 days but it was not returned after 2-3 months. Then after lot of pressure, in the month of October, on Saturday morning, accused Satbir Singh Yadav called him at Centurion Bank, Bengali Market and told that Mahender Kaur would return the money. On reaching the bank there was no cash in the bank being Saturday and he received his money back through banker cheque. During the said day, he met with one lady in the bank and his friend Dharmender introduced her as Mahender Kaur. Police officials made enquiry from him.
8. Sh. Naveen, Record Keeper, Department of Delhi Archives, 18A, Satsang Marg, Special Institution Area, New Delhi was examined as PW5. He produced two summoned records i.e volume no. 1027, registration no. 6245, additional book no. 1, pages 98 to 100 dated 16.09.1963 and the photocopies of said sale deed are Ex.PW4/1. Another volume no. 2925, registration no. 4281, additional book no. 1, pages 45 to 48 dated 16.06.1972 and the photocopies of said sale deed are Ex.PW4/2.
9. Sh. Naresh Kumra was examined as PW6. He deposed that FIR No. 776/2007 PS Mehrauli (EOW) Page- 12 of 36 in 2007 his brother-in-law Dr. Ajay Alok decided to purchase a property in Chhattarpur Area. He needed some money for advance payment and he lent him a loan of Rs.16 Lakhs. He gave the advance money to accused Satbir Singh Yadav. Later on they learnt that there was a dispute over the property. He requested his friend who was ADM South to help in checking the papers. He confirmed the dispute and adviced not to purchase the property. His brother-in-law then cancelled the deal and after much efforts, was able to get the money back.
10. Sh. Sushil Tandon, Manager, Citi Bank N.A., Global Consumer Bank, DLF Capitol Point, Baba Kharak Singh Marg, Connaught Place was examined as PW7. He produced the statement of account from 07.07.2007 to 10.12.2007 of account no. 5-716637-222 in the name of one Sh. Ajay Alok. The statement of account is Ex.PW7/A (colly). He also produced the certificate under section 2 A of Banker Book of Evidence Act which is Ex.PW7/B and certificate under section 65 B of Indian Evidence Act is Ex.PW7/C. He also produced the copy of account opening form comprising of eight pages. The same are Ex.PW7/D (colly). Letter issued on the letter head of Citi Bank is Ex.PW7/E and two attested copies of deposit slips are FIR No. 776/2007 PS Mehrauli (EOW) Page- 13 of 36 Ex.PW7/F (colly).
11. Sh. G.S. Meena, Record Keeper, LAC, South, M.B. Road, New Delhi was examined as PW8. He produced the original summoned record i.e award no.15/87-88 in respect to Khasra No. 1572 and 1731 in the revenue estate of Village Chhattarpur, Mehrauli. Copy of award is Ex.PW8/A (colly) showing the award with regard to 1572 at point X and for 1731 at point Y. .
12. Ms. Sarita Gautam, ASO, Sub Registrar-VII, INA, Vikas Sadan, New Delhi was examined as PW9. She produced the original summoned record i.e Will of Mahender Kaur which was registered vide registration no. 1611 book no. 3 volume no. 517 from pages 37-38 dated 26.07.2007. In the Will, one Satbir Singh Yadav had signed as a witness at the time of execution of document for identification of Mahender Kaur. Copy of Will is Ex.PW9/A (colly).
13. Sh. Rakesh Kumar, Kanoongo/Record Incharge, SDM, Saket was examined as PW10. He produced khasra girdawari of Village Chhattarpur, Tehsil Mehrauli of khasra No. 1572/2 and 1731/Min from Kharif 94 to Rabi 98. Copy of same is Ex.PW10/A (colly), khasra girdawari of above said khasra FIR No. 776/2007 PS Mehrauli (EOW) Page- 14 of 36 numbers 1572/2 and 1731/Min of year Kharif 1990 to Rabi 1994. Copy of same is Ex.PW10/B (colly), khasra girdawari of above said khasra numbers 1572/2 and 1731/Min of year Kharif 1986 to Rabi 1990. Copy of same is Ex.PW10/C (colly), khasra girdawari of above said khasra numbers 1572/2 and 1731/Min of year Kharif 1982 to Rabi 1986. Copy of same is Ex.PW10/D (colly), khasra girdawari of above said khasra numbers 1572/2 and 1731/Min of year Kharif 1977 to Rabi 1981. Copy of same is Ex.PW10/E (colly), khasra girdawari of above said khasra numbers 1572 and 1731 of year Kharif 1973 to Rabi 1977. Copy of same is Ex.PW10/F (colly), khasra girdawari of above said khasra numbers 1572 and 1731 of year Kharif 1969 to Rabi 1973. Copy of same is Ex.PW10/G (colly). He also produced the copy of Masaavi of Village Chattarpur of khasra No.1572 and 1731. Copy of same is Ex.PW10/H (colly). He also produced the intekal number 6549 of khasra Nos.1572 and 1731. Same is Ex.PW10/I. He also produced the jamabandi of khasra Nos.1572 and 1731 pertaining to year 1964-1965. Copy of same is Ex.PW10/J (colly). He also produced the khasra girdawari Village Chattarpur, Tehsil Mehrauli of khasra No.1572/2 and 1731/Min from Kharif 2006 to Rabi 2010. Copy FIR No. 776/2007 PS Mehrauli (EOW) Page- 15 of 36 of same is Ex.PW10/K (colly), khasra girdawari Village Chattarpur, Tehsil Mehrauli of khasra No.1572/2 and 1731/Min from Kharif 1998 to Rabi 2002. Copy of same is Ex.PW10/L (colly), khasra girdawari Village Chattarpur, Tehsil Mehrauli of khasra No.1572/2 and 1731/Min from Kharif 2002 to Rabi 2006. Copy of same is Ex.PW10/M (colly), The jamabandi of year 1990-1991 was available with Halqa Patwari, SDM, Saket as record was not available with them.
14. Sh. Devak Ram Retired Assistant Director (Documents), FSL, Rohini, Delhi was examined as PW11. He deposed that the documents of present case were received in his laboratory vide memo no. 440 and 2613/RACP/ALBR/EOW/Crime Branch vide letter dated 28.03.2008 and 18.12.2008 which were received in his laboratory on 31.03.2008 and 19.12.2008. The questioned documents were marked as Mark Q1 to Q54, Q54/1, Q55 to Q63, Q63/1, Q64 to Q68, Q68/1, Q69, Q69/1, Q70, Q70/1 and specimen/admitted signatures/writings were marked as Mark S1 to S213 of Satbir Singh, admitted signature (xerox) A1 to A7 of Lachmi Devi, A12, A12/1 of Ganga Ram, A13, A13/1 of Advocate, admitted xerox signatures A8 to A11, A11/1, A11/2 of Thanwar Dass, A14 and A15 of Jeevan Dass and Urdu FIR No. 776/2007 PS Mehrauli (EOW) Page- 16 of 36 writing/signature Mark A16 and A17 of Kishan Dutt. He examined the documents with the help of available instruments in his laboratory and gave his opinion. His report/opinion is Ex.PW11/A (colly). The questioned documents are Ex.PW11/B (colly). The admitted documents are Ex.PW11/C (colly) and the specimen signatures/handwriting are Ex.PW11/D (colly). After examination, the case report and documents were collected by authorized messenger of Crime Branch.
15. Sh. Subodh Kumar was examined as PW12. He deposed that on 26.07.2006 he signed one lease deed executed between Mahender Kaur and Archana Maheshwari as witness as he knew Sh. S.C. Maheshwari and Ms. Archna Maheshwari. Accused Satbir Singh Yadav also signed the said lease deed as a witness from the side of Mahender Kaur as he claimed to know her and there was no dispute over the property.
16. Sh. Gaurav Ahuja was examined as PW13. He deposed that in the year 2007 he was in the business of sale and purchase of property. One day accused Balwant Singh introduced accused Satbir Singh Yadav to him. Accused Satbir Singh Yadav told him that he knew of a farm house at Mulberry Avenue which was in the name of Mahender Kaur and she wanted to sell it and FIR No. 776/2007 PS Mehrauli (EOW) Page- 17 of 36 asked him to search the buyer. They also told him that the property was free from all encumbrances. He met Sh. S.C. Maheshwari after which he got ready to purchase the same. He signed the GPA already Ex.PW3/B between Mahender Kaur and Poonam Maheshwari, indemnity bond already Ex.PW2/I between Mohender Kaur and Archana Maheshwari, Undertaking already Ex.PW2/J of Mohender Kaur, SPA already Ex.PW2/L of Mohender Kaur, Agreement to Sell already Ex.PW2/M between Mohender Kaur and Archana Maheshwari, possession letter already Ex.PW2/O, all documents dated 26.07.2007 in the capacity of witness. These documents were signed by accused Satbir Singh Yadav from the side of Mahender Kaur. He met one lady as Mahender Kaur, the owner of said farm house through accused Satbir Singh Yadav and Balwant Singh.
17. Ms. Mohender Kaur Anand was examined as PW14. She deposed that she was having one property no. 5, DLF, Chhattarpur, New Delhi which was a farm house. She sold that property to one Mr. Goel. She never entered into any deal with anyone else regarding the sale of abovesaid property. She did not know any person by the name of Ms. Poonam Maheshwari, Ms. Archana Maheshwari, Sh. S.C. Maheshwari, accused FIR No. 776/2007 PS Mehrauli (EOW) Page- 18 of 36 Balwant Singh or Satbir Singh Yadav.
18. Sh. Amit Kumar, CDV (Civil Delhi Defence), SDM Office, Saket, New Delhi was examined as PW15. He produced the jamabandi of khasra No's.1731 and 1572 at Khata No's 126 and
162. Copy of same is Ex.PW15/B. His authority letter is Ex.PW15/A.
19. Sh. Rajesh Kumar, Deputy Manager, HDFC Bank was examined as PW16. He produced the certified copy of covering letter dated 05.01.2019 regarding the case, certificate under section 65 B (4) (c) of Indian Evidence Act, 1872 pertaining to account No. 1171010000172842 and 13761930000719 in the name of Smt. Mahender Kaur, certificate under section 2 A of Banker Book of Evidence Act, 1891 pertaining to above said both account numbers and a print out of an e-mail regarding above said both account numbers, control sheet for account opening in the name of Smt. Mahender Kaur, undertaking by Smt. Mahender Kaur regarding above said both account numbers, account opening form of Smt. Mahender Kaur, Form No.60 of Smt. Mahender Kaur, Vernacular Indemnity letter, voter I-card of Smt. Mahender Kaur, bank statements of CBOP pertaining to account No.1171010000172842 (which was FIR No. 776/2007 PS Mehrauli (EOW) Page- 19 of 36 merged with HDFC Bank in 2009), bank statements of CBOP pertaining to account No.13761930000719 (which was merged with HDFC Bank in 2009). Account number was changed due to merger of Centurion Bank of Punjab with HDFC Bank. The documents are Ex.PW16/A. The letter dated 26.11.2007 addressed to Centurion Bank of Punjab issued by IO is Ex.PW16/B.
20. Sh. Munni Ram was examined as PW17. He deposed that during investigation on 05.04.2008, he handed over the original NOC having the signatures of Smt. Mahender Kaur as transferor and Satbir Singh Yadav as a transferee alongwith endorsement appearing to be of Office of SR, Delhi to IO. The NOC is Ex.PW17/A. IO seized the said documents in his presence vide seizure memo Ex.PW17/B. IO recorded his statement. During his statement, he told the IO that he made construction around the boundary wall on asking of Sh. P.D. Goel who was the owner of said property and also told the IO that the said ownership was given to him by Sh. P.D. Goel.
21. SI Ravinder Kumar was examined as PW18. He deposed that in November, 2007 during investigation he visited at Guwahati S.P. Office to verify the address of Smt. Mahender Kaur at the FIR No. 776/2007 PS Mehrauli (EOW) Page- 20 of 36 instance of IO. At the office of S.P. he saw the address of Smt. Mahender Kaur through the letter given to him by IO then he came to know that the Village of Tehsil Silchar and PS was found to be of District Halikandi. A report was prepared by DO from PS Lala. The said address was found to be wrong. Thereafter, he came back to EOW office and on December, 2007 he visited alone to District Farukkhabad to verify the address of Smt. Mahender Kaur at the given address i.e. 1/49, Civil Line, Farukkhabad which was a government officers colony. There he came to know from Care Taker Office that no such person with the name of Smt. Mahender Kaur had resided on the said address. Thereafter, in June, 2008 he visited Bastiyan Road, Jalandhar to verify the address of Smt. Mahender Kaur but same was not found as the complete address was not given in the said letter. Thereafter, in July, 2008 he again visited Jalandhar to verify the address of Smt. Mahender Kaur and brought the certified copy of GPA cancellation bearing the name of Smt. Mahender Kaur and same was handed over to IO. He verified the address of accused Mahender Kaur from the public persons at Bastiya Road, Jalandhar. After showing the address letter, they told that it was incomplete address and they could not tell FIR No. 776/2007 PS Mehrauli (EOW) Page- 21 of 36 the address of accused Mahender Kaur. He prepared a report Ex.PW18/A and handed over to IO. He also collected the cancellation of GPA of accused Mahender Kaur bearing her address as Bastiya Road, Tehsil Jalandhar and said GPA, He handed over the same to IO which was seized vide seizure memo Ex.PW18/B.
22. Sh. Harish Sharma, Chief Manager, Oriental Bank of Commerce, Hauz Khas Branch, New Delhi was examined as PW19. He produced the account statement of account no. 05622010040650 in the name of Ms. Poonam Maheshwari. As per the statement of account, confirmed that the pay order for Rs. 22 lakhs was issued in favour of Mahender Kaur on 13.07.2007 vide pay order no. 643835 and Rs. 10 lakhs were issued in favour of Mahender Kaur on 13.07.2007 vide pay order no. 643966. He produced the said statement which is Ex.PW19/A. The documents are Ex.PW19/B.
23. IO ACP Anil Samota was examined as PW20. He deposed that on 07.11.2007 the present case was got registered on the complaint of Ms. Archana Maheswari. He prepared the rukka which is Ex.PW20/A and handed over the same to Ct. Rajeev for registration of FIR. Ct. Rajeev went to PS Mehrauli and got FIR No. 776/2007 PS Mehrauli (EOW) Page- 22 of 36 the FIR registered and came to EOW office and handed over original rukka and copy of FIR to him. On 03.11.2007, Sh. S.C. Maheswari handed over some documents which were self signed photocopies to him and he seized those documents. On 01.12.2007 and 03.12.2007, Sh. S.C. Maheswari handed over some original documents to him and he seized the documents vide seizure memo Ex.PW20/B. On 01.12.2007, Sh. Ravinder Singh Kalra handed over some original documents to him and he seized the same vide seizure memo Ex.PW20/C. On 03.12.2007, Ajay Sharma handed over some documents to him and he seized the documents vide seizure memo Ex.PW20/D. The documents are Ex.PW20/E. The memo of taking the documents on record was prepared by him which is Ex.PW20/F. The documents are Ex.PW20/G. Thereafter on 29.01.2008, he wrote a letter to Delhi Archives for providing sale deed and GPA. The letter is Ex.PW20/H. The Delhi Archives provided the certified copy of sale deed which is Ex.PW20/I. On 30.01.2008, he wrote letter to Sub-Registrar, Kashmiri Gate for providing sale deed and GPA vide letter Ex.PW20/J. The certified copy of GPA is Ex.PW20/K. On 06.12.2007, he wrote a letter to Delhi Archives for providing the copy of sale deed of 1972 vide letter FIR No. 776/2007 PS Mehrauli (EOW) Page- 23 of 36 Ex.PW20/L. The documents provided by Delhi Archives are Ex.PW20/M. On 21.11.2007, he wrote letter to Centurion Bank of Punjab, Bengoli Market for providing him the certified copy of account opening form and some other documents vide letter Ex.PW20/N. The documents provided by them are Ex.PW20/O. On 26.11.2007, he wrote letter to Centurion Bank, Bangal for freezing of account in the name of Mahender Pal. On 06.12.2007, he wrote a letter to Branch Manager, Citi Bank for providing him account opening form and documents pertaining to funds transfer vide letter Ex.PW20/P. On 05.04.2008, Muni Ram handed over original NOC to him which he seized. The NOC is Ex.PW20/Q. On 03.04.2008, he arrested accused Satbir Singh Yadav and carried out his personal search vide memos Ex.PW20/R and Ex.PW20/S. The physical inspection memo of accused is Ex.PW20/T. PC remand of accused Satbir Singh Yadav was also obtained. The pointing out memos are Ex.PW20/U and Ex.PW20/V. The disclosure statement of accused Satbir Singh Yadav is Ex.PW20/W. On 20.11.2007, Jitender Mohan Sharma handed over some self signed photostat copies to him and he seized the same vide seizure memo Ex.PW20/X. The documents are Ex.PW20/Y. All these FIR No. 776/2007 PS Mehrauli (EOW) Page- 24 of 36 documents in original were given by son of Jitender Mohan, Arun on 10.01.2008 and he seized the documents vide seizure memo Ex.PW20/Z. These documents are Ex.PW20/ZA. On 01.02.2008, Ram Mehar handed over some self signed photostat copies to him which were seized by him vide seizure memo Ex.PW20/ZB. The documents are Ex.PW20/ZC. On 17.04.2008, Ravi Malhotra handed over some self signed photocopies to him which were seized by him vide seizure memo Ex.PW20/ZD. The documents are Ex.PW20/ZE. HC Ravinder Kumar handed over those documents to him and he seized the same. The documents are Ex.PW20/ZF. On 19.04.2008, he wrote a letter to Branch Manager PNB, Alaknanda for providing the details and documents vide letter Ex.PW20/ZG. The reply of PNB alongwith documents is Ex.PW20/ZH. On 05.06.2008, he wrote letter to Registrar, Birth and Death, Nagar Palika Farukhabad, U.P. with regard to Mahender Kaur vide letter Ex.PW20/ZI. Their reply is Ex.PW20/ZJ. On 29.01.2009 and 29.04.2009 he wrote letters to Branch Manager, OBC for providing the details of fund transfer from the account of Poonam Maheshwari to the fake account which was opened in the name of Mahender Pal. His letter is Ex.PW20/ZK. They tried to trace out Mahender FIR No. 776/2007 PS Mehrauli (EOW) Page- 25 of 36 Kaur and for that they got the publication issued in various newspapers. The details of same alongwith newspapers are Ex.PW20/ZL. On 08.09.2010, he seized the documents which were produced by accused Satbir Singh Yadav in case FIR No.709/07 and prepared memo taking the documents on record which is Ex.PW20/ZM. The seizure memo alongwith documents is Ex.PW20/ZN. During investigation, documents were sent to FSL Rohini and result was obtained and placed the same before the court through supplementary chargesheet. On 20.11.2008, he obtained some documents from Land Acquisition Officer, M.B. Road Saket, in reply to his letter dated 11.11.2008, he prepared the memo of taking on record the said document, which is Ex.PW20/ZO. The documents are Ex.PW20/ZP. During investigation, he also recorded the statement of PWs. He also examined the real owner of property in question Mahender Kaur and she gave her statement that the property was sold only to one P.D. Goel and never sold the property to anyone else. He recorded her statement. He completed the investigation and filed the chargesheet before the court.
24. The entire incriminating evidence brought on record against the accused was put to him and his statement under section 313 FIR No. 776/2007 PS Mehrauli (EOW) Page- 26 of 36 Cr.PC was recorded. It is stated by accused that he is innocent and has been falsely implicated in the present case. He is an ex- service man. He had never done any property dealer work. He had a big business like petrol pump in Connaught Place, two taxi stands and also an agricultural land.
25. I have heard Ld. APP for the State and Ld. counsel for accused and have also perused the judicial file carefully.
26. Accused has been charged with the offence under section 120 B IPC for conspiring with co-accused Satbir Singh Yadav (since deceased) and cheated the complainant.
27. PW2 S.C. Maheshwari deposed that accused went to his office alongwith Mohinder Kaur, Satbir Singh Yadav and Gaurav for sale of property in question. Accused identified the lady as Mahender Kaur.
28. PW3 Ms. Archana Maheshwari corroborated the testimony of PW2 S.C. Maheshwari and stated that the accused alongwith his accomplices went to her office.
29. PW13 Sh. Gaurav Ahuja deposed that accused introduced him to one Satbir Singh Yadav and told him that there was a farm house for sale.
FIR No. 776/2007 PS Mehrauli (EOW) Page- 27 of 36
30. PW16 Sh. Rajesh Kumar from HDFC Bank stepped into the witness box to prove the documents pertaining to account opening of Mahender Kaur. He produced document Ex.PW16/A where it is reflected that accused Balwant Singh was the introducer of Mahender Kaur at the time of opening of account.
31. It has come on record that accused introduced Mahender Kaur as the owner of farm house to complainant PW3 Ms. Archana Maheshwari and her father-in-law PW2 Sh. S.C. Maheshwari and he also introduced her at the time of opening of bank account in which the DDs received from PW2 Sh. S.C. Maheshwari were presented.
32. It is alleged against the accused that he conspired with accused Satbir Singh Yadav in order to cheat the complainant in purchase of farm house.
33. From the evidence that has been brought on record, it stands established that accused introduced one lady as the owner of farm house to complainant who was not the actual owner of property which is evident from the testimony of PW14 Ms. Mahender Kaur Anand W/o Sh. Sohan Singh Anand. PW14 Ms. Mahender Kaur Anand has been proved to be the owner of the FIR No. 776/2007 PS Mehrauli (EOW) Page- 28 of 36 property in question through the revenue records produced from the Sub Registrar Office. The lady who was introduced by the accused as Mahender Kaur, both before the complainant as well as the bank did not reside at the address furnished by her.
34. Accused introduced the said lady as Mahender Kaur to be owner of the farm house which she actually was not.
35. Prosecution examined PW10 Sh. Rakesh Kumar to prove that in the revenue records, PW14 Ms. Mahender Kaur was the owner. All the documents executed by her in favour of complainant were found to be false.
36. Accused has also been charged under section 419 IPC.
The essentials of section 419 IPC are as under:-
(i) That the accused cheated someone;
(ii) That he did so by impersonation.
37. Accused introduced Mahender Kaur to be the owner of property to complainant. Said Mahender Kaur was not the actual owner as has been proved from the FSL report and the alleged sale deed dated 12.04.1972 executed by Smt. Lachmi Devi in favour of Mahender Kaur was fake. GPA dated 13.06.1962 FIR No. 776/2007 PS Mehrauli (EOW) Page- 29 of 36 executed by Thanwar Dass in favour of Surender Nath was also found fake.
38. Once the documents allegedly executed by previous owners in favour of Mahender Kaur were not genuine, she did not have the requisite title to transfer the same to complainant. Contrarily, in the revenue records, Mahender Kaur Anand W/o Sh. Sohan Singh Anand (PW14) was shown to be the owner.
39. The accused represented the lady as Mahender Kaur to complainant as the owner of property knowing fully well that she was not really the owner. Accordingly, he committed the offence of cheating by personation and is liable under section 419 IPC.
40. Accused has also been charged under section 420 IPC.
The essential ingredient of Section 420 IPC are as follows:-
(a) An offence under this section has following essentials:
(i) There must be deception i.e the accused must have deceived someone;
(ii) That by the said deception. The accused must induce a person;
(a) to deliver any property; or FIR No. 776/2007 PS Mehrauli (EOW) Page- 30 of 36
(b) to make, alter or destroy the whole or part of valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property.
(iii) That the accused did so dishonestly.
41. The prosecution succeeded in proving that by introducing that lady as the actual owner of property which she was not, he induced the complainant to part with money but the prosecution has failed to show that any wrongful gain has been caused to accused. The amount has gone in the account of Mahender Kaur or Satbir Singh Yadav and no wrongful gain is proved against the accused.
42. Since all the essential ingredients required to be proved for the offence under section 420 IPC are missing, accused cannot be held liable under the said section.
43. Accused has also been charged for the offence under section 467/468/471 IPC.
44. The prosecution has though proved that the documents executed by lady Mahender Kaur in favour of complainant were false as she did not have the requisite title but has failed to prove that any of the documents were executed by accused. FIR No. 776/2007 PS Mehrauli (EOW) Page- 31 of 36
45. Reliance is being placed on the latest judgment of Sheila Sebastian Vs. R. Jawaharaj & Anr. Crl. Appeal No. 359- 360/2010, accused cannot held liable under section 467 IPC.
It is observed in the case Md. Ibrahim and Ors. Vs. State of Bihar and Anr., (2009) 8 SCC 751 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 not in control of his senses."
46. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences, this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale FIR No. 776/2007 PS Mehrauli (EOW) Page- 32 of 36 deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
47. The Court in Md. Ibrahim (supra) observed that: "There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be 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 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 FIR No. 776/2007 PS Mehrauli (EOW) Page- 33 of 36 executed.
When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else 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."
48. Since none of the documents have either been prepared by accused nor have been used by accused as genuine. None of the documents bear signatures of accused which were executed by the lady Mahender Kaur in favour of complainant. The said documents were witnessed by accused Satbir Singh Yadav (since deceased) and were used by lady for obtaining wrongful gain from complainant.
49. Prosecution has failed to prove that any of the documents which were false/forged were either executed by accused or was used by him for the purpose of cheating or knowing them to be FIR No. 776/2007 PS Mehrauli (EOW) Page- 34 of 36 forged.
50. In absence of any evidence against accused, he cannot be held liable for the said offences.
51. Prosecution has led ample evidence to prove conspiracy between accused and co-accused Satbir Sngh Yadav as well as lady for commission of an illegal act both through ocular as well as documentary evidence. Conspiracy between accused and the co-accused persons is proved beyond reasonable doubt as he not only introduced her as owner of property to complainant but also introduced her in the bank for opening an account and facilitated in commission of offence of cheating the complainant by the lady Mohinder Kaur.
52. In view of the above, accused is accordingly convicted for the offence under section 120B/419 IPC. He is acquitted for offence under section 420/467/468/471 IPC.
53. Copy of judgment be given to convict Balwant Singh free of cost.
Announced in the open
Court on 08.04.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
FIR No. 776/2007 PS Mehrauli (EOW) Page- 35 of 36
Certified that this Judgment contains 36 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 776/2007 PS Mehrauli (EOW) Page- 36 of 36