Delhi District Court
Pal vs . State Reported As 2009 (113) Drj 864 ... on 20 September, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
Digitally signed
by POOJA
TALWAR
State POOJA Date:
TALWAR 2018.09.24
Vs. 10:58:53
+0530
Mahender Prasad Jain @ M.P. Jain & Ors.
FIR No. 356/2000
P.S Mehrauli (EOW)
JUDGMENT
1. Sr. No. of case 2031706/2016
2. Date of institution 10.06.2004
FIR No. 356/2000 PS Mehrauli (EOW) Page- 1 of 49
3. Name of the complainant Sh. A. Nedunchezhiyan
ADM (HQ), South District,
New Delhi.
4. Date of commission of offence In and around 1997 to 1999
5. Name of accused 1. Mahender Prasad Jain @
M.P. Jain
S/o Late Maharaj Prasad Jain
R/o S-287, Panchsheel Park,
New Delhi.
2. Mohd. Zama
S/o Late Aladdin
R/o House No. 509/168, Dr.
Baijnath Road, New Hyderabad,
Lucknow, UP.
3. Rameshwar Singh
Chauhary @ R.S. Chauhan
S/o Sh. Sidhnath Singh Chauhan
R/o Village Gindan Khera,
Amousi Industrial Area,
Lucknow, UP. (proceedings qua
him stood abated vide order
dated 22.05.2015).
4. Lahori Lal
S/o Sh. Late Mohan Lal
R/o House No. 100-B, Gali No.
11, Bhandari Bagh, Dehradun,
Uttrakhand.
5. Vivek Behl
S/o D.N. Behl
R/o House No. 178, Jor Bagh,
FIR No. 356/2000 PS Mehrauli (EOW) Page- 2 of 49
New Delhi.
6. Offence complained of U/s 201/420/468/471/120B IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 19.09.2018
9. Final order Acquitted
10 Date of such judgment 20.09.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that a complaint was filed by ADM Headquarters, South District alleging that an application was moved by one M.P. Jain and Vivek Behl for mutation of land bearing khasra no. 414 measuring 1 bigha, 10 biswas and khasra no. 546 measuring 1 bigha 11 biswas in Village Satbari, New Delhi on the basis of documents the genuineness of which was doubtful and also the identity of the persons presenting the said documents was skeptical. Accordingly, the enquiries were made from the owners of lands in question who revealed that FIR No. 356/2000 PS Mehrauli (EOW) Page- 3 of 49 the property has not been sold and they had not parted with the possession thereof. FIR was registered. During investigation, it was revealed that Khasra no. 414 belong to Ansal Housing Estate (P) Ltd and they neither sold nor transferred this land to M/s Himalayan Forest Agro Products Pvt. Ltd nor authorized any person to transfer the said land. M.P. Jain claimed to have purchased the GPA executed by R.D. Singh on behalf of Ansal Housing Estate (P) Ltd on 30.10.1989 in the name of Lahori Lal and SPA was executed by Lahori Lal in the name of Mohd. Zama and Mohd. Zama in turn executed the sale deed on 13.10.1998 in favour of M/s Himalayan Forest. M.P. Jain on behalf of Himalayan Forest made an application before Naib Tehsildar to get the mutation of the land done in the name of his company. It was further revealed that GPA for Khasra No. 546 was executed by Smt. Lalita Badhwar in favour of R.S. Chauhan. R.S. Chauhan executed sale deed on the basis of forged GPA in favour of Vivek Behl. Both M.P. Jain and Vivek Behl on the basis of forged documents filed an application for mutation of land in their names. Lalita Badhwar during investigation denied having sold the land to anyone. Sufficient evidence was obtained against M.P. Jain, Vivek Behl, Lahori FIR No. 356/2000 PS Mehrauli (EOW) Page- 4 of 49 Lal, R.S. Chauhan and Mohd. Zama, therefore, on completion of investigation, chargesheet was filed against all the aforesaid five accused persons.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused persons before Court and prima facie case having being made out, charge for the offence under section 120B IPC and section 471 IPC was framed against accused Mahender Prasad Jain and Vivek Behl and charge under section 120B IPC was framed against accused R.S. Chauhan, Mohd. Zama and Lahori Lal. Accused R.S. Chauhan died during the pendency and proceedings against him stood abated vide order dated 22.05.2015.
3. In order to prove its case, the prosecution examined 13 witnesses in all.
4. Sh. Prem Singh, retired Kanoongo has been examined as PW1. He deposed that in the month of January, 1999 he was posted as a Patwari at SDM Office, Kalkaji and his duty was at DC Office, Saket, M.B. Road. He was assigned the jurisdiction of Village Satbari. In the same month, accused M.P. Jain visited the said office with his Chartered Accountant i.e co-accused FIR No. 356/2000 PS Mehrauli (EOW) Page- 5 of 49 Rameshwar Chauhan (since expired) with an application for mutation of land situated in land khasra No.414 (1-10) and khasra no. 546/1 (1-11) in Village Satbari and the said application was marked to him by Naib Tehsildar. Accused M.P. Jain was having a land in Village Satbari and being Patwari of the same village, he knew the accused. He made intkal entry in register in regard to application marked to him. Accused M.P. Jain had shown him the original registry of property situated in the above said khasras and he kept the application with the him as record. After few days accused Vivek Behl, M.P. Jain and Rameshwar Chauhan appeared before the Naib Tehsildar namely Sh. Naresh Kumar. On being asked by Naib Tehsildar, he informed that these persons were known to him being the Patwari. Accused M.P. Jain and Vivek Behl showed the original register to Naib Tehsildar and thereafter, they left the office and he maintained the record in Mal Jama Bandi and made entries regarding the same after sanctioning the mutation by Naib Tehsildar. He further deposed that before 15 days of mutation he got munadi conducted on the behalf of Naib Tehsildar in Village Satbari and no one came forward to raise any objection regarding mutation. In the meantime, he was transferred. On FIR No. 356/2000 PS Mehrauli (EOW) Page- 6 of 49 30.08.2000, IO recorded his statement in this regard. Later on he came to know that accused M.P. Jain and Vivek Behl got the mutation done on the basis of forged documents.
5. Sh. Naresh Kumar, Head Clerk, Principal Accounts Office, Vikas Bhawan was examined as PW2. He deposed that in the year 1999, he was posted as Naib Tehsildar, Defence Colony. Two persons came to his office with an application for mutation of the land situated in Village Satbari. He instructed them to go to Halka Patwari. He also endorsed on the application and marked in the name of Halka Patwari Prem Singh. The mutation application was regarding the land khasra no. 414 (1-
10) and 546 (1-11) situated in Village Satbari. Thereafter, Halka Patwari made entries in the Intekal Register. He further deposed that on 19.03.1999, accused M.P. Jain and accused Vivek Behl appeared in his Court alongwith Halka Patwari Sh. Prem Singh. Thereafter, accused M.P. Jain and accused Vivek Behl stated that they purchased the above said land and they were also having its possession. Accused M.P. Jain and accused Vivek Behl had shown their original sale deeds which were seen by him and thereafter, returned to them. The Halka Patwari made his endorsement. The munadi was already got conducted by FIR No. 356/2000 PS Mehrauli (EOW) Page- 7 of 49 Halka Patwari in the area and no one came forward to raise any objection so he allowed the mutation. DC South verbally instructed to Tehsildar for getting the mutation cancelled of the abovesaid land and tehsildar was further asked to issue notices to the parties and notices were issued to them. On 30.08.2000, IO recorded his statement. He marked both the mutation applications as Ex.PW2/A and annexed documents as Ex.PW2/B. The applications are Ex.P1 and Ex.P2. Affidavits annexed with the applications are Mark Ex.P1 and Ex.P2. Photocopies of agreement to sell is Ex.P3, original SPA executed by accused Lahori Lal is Ex.P4. Photocopies of sale deed in favour of accused Vivek Behl are Mark B and the photocopies of the sale deed in favour of M/s. Himalaya Forest and Agro Products Pvt. Ltd. are Mark C. The photocopy of sale deed dated is 13.10.1998 on which Halka Patwari made his endorsement in his presence is Ex.PW2/A. The GPA which was given to their office alongwith mutation application is Ex.P5. The mutation order pertaining to land of khasra No.414 situated at Village Satbari is Ex.PW2/D. Attested copy of documents given to their office for the purpose of mutation of land bearing Khasra No.546/1 situated at Village Satbari, Mehrauli is FIR No. 356/2000 PS Mehrauli (EOW) Page- 8 of 49 Ex.PW2/E1, Ex.PW2/E2, Ex.PW2/E3 and Ex.PW2/E4. Witness correctly identified accused M.P. Jain and accused Vivek Behl before the Court.
6. Dr. Lalita Badhwar was examined as PW3. She deposed that on 05.08.1992, she bought a property/plot admeasuring 1 acre, bearing No.17, Green Meadow Farms, Satbari. Immediately after buying the aforesaid property, she got its possession and same was in her continuous possession till date. In the early 1999, she got a notice from Tehsildar, Mehrauli inquiring whether she had sold her abovesaid property to anyone. On 15.06.1999, she replied to the said notice through a written letter telling that she had not sold her abovesaid property to anyone. Thereafter, she was called by Tehsildar, Mehrauli in his office where he showed her a GPA containing her signatures. After going through the same, she told that a complaint was made by Tehsildar, Mehrauli in the present case and during investigation police obtained her specimen signatures which is Ex.PW3/A1 to PW3/A5. During investigation, investigating authority showed her a document containing a name Lalita Bhadwar. During investigation, Investigating Authority showed her some containing her name and on the same documents, FIR No. 356/2000 PS Mehrauli (EOW) Page- 9 of 49 there appeared as signatures in name as Lalita Badhwar. She produced all the documents pertaining to her ownership of property bearing No.17, Green Meadow Farms, Satbari before the authority who served her notice. Reply to that notice was given to her on 15.06.1999 which is Ex.PW3/A6. Above said land was purchased by her vide sale deed dated 05.08.1992 which is Ex.PW3/A7. She appended mutation which is Ex.PW3/A8, Aks Shijra is Ex.PW3/A9 and Girdawri vide Ex.PW3/A10.
7. Sh. Darade Shrikant Govind, Junior Clerk, Registrar Office, Class-II, Record Section, Mumbai City was examined as PW4. He produced the relevant record i.e. authority letter which is Ex.PW4/A, certified copy of sale deed 13.10.1997 in favour of accused Vivek Behl is Ex.PW4/B, certified copy of day book bearing the detail regarding the sale deed is Ex.PW4/C, certified copy of sale deed dated 13.10.1998 of khasra No.414 between Ansal Housing State Pvt. Ltd and M/s. Agro Products Pvt. Ltd. Is Ex.PW4/D, certified copy of day book bearing the details regarding the sale deed of Rs.1,00,000/- presented by co-accused Mohd. Zama is Ex.PW4/E and certified copy of translation of the day book having details of year and FIR No. 356/2000 PS Mehrauli (EOW) Page- 10 of 49 registration No.2142/1998 and 975/1997 certified by Joint District Registrar V.V. Adhatrao is Ex.PW4/F.
8. Sh. A. Nedunchezhiyan, Spl. Commissioner Labour, S. Shamnath Marg, Labour Department, 2nd Floor, C-Wing was examined as PW5. He deposed that in the year 2000, he was working as a Sub-Divisional Magistrate, Head Quarters, Officer In-charge Vigilance. On 03.02.2000, he made a complaint to DCP Crime Delhi based on a report received from Tehsildar Defence Colony. The complaint is Ex.PW5/A.
9. ASI Raj Kumar was examined as PW6. He deposed that on 07.06.2000, IO Inspector Anil Sharma gave him a rukka and sent him to PS Mehrauli for registration of FIR. He handed over the rukka to Duty Officer of PS Mehrauli. After registration of FIR, he came back at EOW Office and gave original rukka and copy of FIR to IO. On 23.05.2001, he again joined the investigation in the present case alongwith SI Sunder Pal. That day in his presence, specimen signatures on five pages of co- accused Mohd. Zama and on five separate pages of co-accused R.S. Chauhan were obtained. On one page, specimen alphabets and signatures of accused Lahori Lal and on one another page specimen alphabets and signatures of Lalita Badhwar were FIR No. 356/2000 PS Mehrauli (EOW) Page- 11 of 49 taken by IO in his presence. The specimen signature/handwriting are Ex.PW6/A1 to Ex.PW6/A12.
10. ACP Anil Sharma, Security, Vice President House was examined as PW7. He deposed that on 07.06.2000 on receipt of complaint from SDM (Headquarter), Officer In charge, Vigilance, Delhi, he prepared rukka which is Ex.PW7/A. The rukka was sent to PS Mehrauli through Ct. Raj Kumar for registration of FIR. Ct. Raj Kumar after registration of FIR came back at his office at EOW and handed over the copy of FIR and rukka to him for further investigation of the case. During the course of investigation, he examined the witnesses namely Prem Singh Patwari, Naib Tehsildar Naresh Kumar and Smt. Lalita Badhwar and recorded their statements under section 161 Cr.PC. He also seized some certified copies of certain documents from Lalita Badhwar vide seizure memo Ex.PW7/B. Total three sale deeds dated 05.08.1992 which were seized which are Mark PW7/A. He also took specimen signatures on total 5 paper sheets of Lalita Badhwar which are already Ex.PW3/A1 to Ex.PW3/A5. During the course of investigation, he seized certain documents i.e. one set of sale deed registration no.1249 dated 20.03.1981, one set of sale FIR No. 356/2000 PS Mehrauli (EOW) Page- 12 of 49 registration no.1250 dated 20.03.1981 and both sale deeds executed on 17.03.1981 (total 12 pages) from one G.N. Bashisht vide seizure memo Ex.PW7/C. The documents are Mark PW7/B. He also recorded the statement of Tehsildar Jagir Singh, G.N. Bashisht and Ct. Bijender under section 161 Cr.PC. During the course of investigation, he also obtained the specimen signatures/handwriting of accused Vivek Bahl on 5 paper sheets. The paper sheets are Ex.PW7/D. Later he was transferred from EOW and the case file was submitted by him to EOW.
11. Retired SI Mukhtiar Singh was examined as PW8. He deposed that in the year 2000, he was posted as HC at EOW, Crime Branch, New Delhi. During the course of investigation, he was sent to the office of Sub-Registrar, Mumbai to bring the certified copy of a sale deed dated 13.01.1997 by IO/Inspector R.S. Adhikari. He handed over the certified copy dated 14.12.2000 of a sale deed dated 13.10.1997 to IO. The certified copy of the sale deed is Ex.PW8/A.
12. Inspector Sunder Pal was examined as PW9. He deposed that on 20.04.2001, he received the investigation of the present case. During the course of investigation on 23.05.2001, accused FIR No. 356/2000 PS Mehrauli (EOW) Page- 13 of 49 Mohd. Zama and accused R.S Chauhan joined the investigation in the present case. He interrogated both the accused persons and their specimen signatures were taken by him on total 12 paper sheets in presence of Ct. Raj Kumar. The documents are already Ex.PW6/A1 to Ex.PW6/A12. He recorded the statement of Ct. Raj Kumar under section 161 Cr.PC. On 19.06.2001, accused Mahender Prasad Jain joined investigation at the office of EOW. Accused Mahender Prasad Jain was interrogated and his specimen signatures were obtained on five paper sheets. The documents are Ex.PW9/A1 to Ex.PW9/A5. On 23.08.2001, the questioned documents alongwith the specimen signatures/handwriting after marking the same were deposited in FSL, Malviya Nagar, for their examination by the expert, by him. These documents were deposited vide RC No.2001/D- 2265. On 06.11.2001, one person namely Raghunath Pandey was examined and his statement under section 161 Cr.PC was recorded. Raghunath Pandey was the employee of accused Mahender Prasad Jain. Original Sale Deed and GPA executed by accused Lahori Lal in favour of accused Mohd. Zama and another GPA executed by Lalita Wadhwa in favour of accused R.S. Chauhan as alleged by the accused persons were never FIR No. 356/2000 PS Mehrauli (EOW) Page- 14 of 49 produced by accused persons in form of original despite giving them notices by him. He also could not succeed in getting any original file of mutation no. 3275 and 3276 from the DC Office, M.B. Road but the file related to these mutation numbers were not given to him by the Office Superintendent as the files were under enquiry by the DC concerned as per Office Superintendent. On 31.01.2002, accused Mohd. Zama and accused R.S. Chauhan were arrested vide arrest memos Ex.PW9/B1 and Ex.PW9/B2 in the presence of Ct. Naresh Kumar in the office of EOW. Personal search was also conducted vide memos Ex.PW9/C1 and Ex.PW9/C2 respectively. Their disclosure statements were also recorded vide memos Ex.PW9/D1 and Ex.PW9/D2 respectively. On 01.02.2002, accused Mohd. Zama and accused R.S. Chauhan were produced before the concerned Court. On 11.03.2002, file of the present case was handed over to Reader, ACP, LBR for further investigation as he was transferred to IPR Section.
13. ACP Rajender Adhikari, ACP Seelampur, Delhi was examined as PW10. He deposed that in the month of January, 2001, he was posted as an Inspector in LBR Section, EOW, Delhi. The investigation of the present case was handed over to FIR No. 356/2000 PS Mehrauli (EOW) Page- 15 of 49 him by the then ACP Vijay Malik. On 29.01.2001, he left for Dehradun in order to obtain specimen signature of accused Lahori Lal. On 31.01.2001, he reached at the residence of accused Lahori Lal and obtained his specimen signatures in the presence of his father namely Mohan Lal on 7 paper sheets. The paper sheets are Ex.PW10/A.
14. Inspector Mahesh Narayan was examined as PW11. He deposed that after the transfer of Sub-Inspector Sunder Pal, investigation of the case was handed over to him on 25.03.2002. During the course of investigation, he collected the documents from DC Office, South Zone regarding mutation of the property in question. The documents regarding mutation are Ex.PW11/A, Ex.PW11/B and Ex.PW11/C. On 31.05.2004, he collected certain documents related to Khasra No. 532 vide seizure memo Ex.PW11/D. The sale deed dated 27.04.1985 is Ex.PW11/D1. On 14.01.2004, he arrested accused Lahori Lal vide arrest memo Ex.PW11/E and his personal search was conducted vide memo Ex.PW11/E1. Disclosure statement of accused was recorded vide memo Ex.PW11/E2. Accused M.P. Jain and Vivek Behl were formally arrested as they were on anticipatory bail. He prepared the chargesheet and submitted FIR No. 356/2000 PS Mehrauli (EOW) Page- 16 of 49 before the Court. The documents already on the file were sent to GEQD, Chandigarh for examination.
15. ASI Bijender Kumar was examined as PW12. He deposed that on 31.08.2000, he joined the investigation with IO Inspector Anil Kumar Singh and went to the house of Lalita Badhwar. IO took signatures of Lalita Badhwar on five pages and he signed on the same as a witness. The documents are Ex.PW3/A1 to Ex.PW3/A5. On 13.09.2000, he again joined the investigation with IO and went to the house of accused Vivek Behl where IO took his signatures on five pages and he signed on the same as a witness. The documents are already Ex.PW7/D.
16. Sh. Sanjeev Kumar, Kanoongo/Record Keeper, SDM Office, Saket, M.B. Road was examined as PW13. He deposed that the office of SDM, Saket received the summons to produce the mutation record of Khasra No.414 and 546, Village Satbari. As per the office record, the said mutation records were handed over to ACP/LBR/EOW/Crime Branch vide letter no. 1860 dated 15.11.2000. The copy of said letter vide Mark PW13/A.
17. The entire incriminating evidence brought on record against FIR No. 356/2000 PS Mehrauli (EOW) Page- 17 of 49 the accused persons was put to them and their statements under section 313 CrPC were recorded separately.
18. It is stated by accused Lahori Lal that he is innocent and has been falsely implicated in the present case. He had not executed any SPA in favour of accused Mohd. Zama and the SPA Ex.P4 did not bear his signatures. The same was forged and fabricated document. He denied his specimen signatures having being taken by anybody. Nobody came at his residence.
19. It is stated by accused Mahender Prasad Jain that he is innocent and has been falsely implicated. Neither he was the Director nor any representative of M/s. Himalaya Forest Products Pvt. Ltd. The Investigating Officer deliberately neither cited nor seized any concerned record of the above said company. He had not got done any mutation wrongly. He did not forge any document. It is further stated by accused that there is no charge of forgery against him. He never visited any office for mutation in company of any accused person at any point of time. He was called in the PS by IO where neither Tehsildar nor Patwari or any other person identified him at any point of time. He never refused for participation in any TIP. Neither he was an executant nor signatory of the concerned FIR No. 356/2000 PS Mehrauli (EOW) Page- 18 of 49 document in any manner nor had any connection with the property in question. The complaint in question formed and tendered on the basis of the information supplied to higher officers. Neither they called him or provided any opportunity to explain his position. The FIR in question was registered in a mechanical manner. Specimen signatures were never taken with the permission of the Hon'ble Court or in the presence of Ld. MM or any other independent person. Specimen signatures appearing on Ex.PW7/D were not related to him and the same were prepared and forged by IO for completing the process of case. He further deposed that none of the witnesses identified him during the investigation of case. He never refused to participate in the TIP. During formal arrest certain signatures were obtained by IO on blank papers. He did not know what they had written later on or converted the same into the form of any document. The records in question were manipulated and fabricated. Every officers/record keeper tried to shift the responsibility on the others and never produced the original records.
20. It is stated by accused Vivek Behl that he is innocent and has been falsely implicated in the present case. He had nothing FIR No. 356/2000 PS Mehrauli (EOW) Page- 19 of 49 to do with the mutation application. He received some notice from the SDM Office and in response to the same he sent a reply wherein he categorically informed the SDM that he had nothing to do with the said mutation and that his name was being misused. He never visited any Naib Tehsildar with M.P Jain or otherwise. He did not sign or execute any document. He himself was an aggrieved person as his name was misused. He himself informed the SDM regarding this aspect and had sent a letter to his office. He had not got done any mutation. He did not forge any document. As per record there was no document bearing his signatures and even his specimen signatures did not match with any of the disputed signatures. There was no charge of forgery against him. He never visited any office for mutation in the company of M.P Jain or otherwise. There is no document bearing his signatures or handwriting on record. He had nothing to do with the khasra numbers bearing khasra No.414 or 546. Nobody had identified him as being the person who allegedly visited the office of Naib Tehsildar. In fact during the anticipatory bail proceedings, IO of the case had himself submitted before the Court that the witnesses from the Naib Tehsildar and Patwari did not identify him. He was called to PS FIR No. 356/2000 PS Mehrauli (EOW) Page- 20 of 49 by IO and shown to Naib Tehsildar and Patwari but they did not identify him as being a person who allegedly moved the mutation application. He was neither the signatory nor executant to any of the documents. No disputed document was bearing his handwriting or signatures as per forensic report. IO of the case took his specimen signatures during investigation. As per the forensic report none of the disputed documents was bearing his signatures. The charges of forgery were dropped by the Hon'ble Sessions Court in respect of allegations against him and thereafter, the charges were amended. He never moved any application for mutation and never appeared before anyone for any proceeding in respect of khasra no.414 and 546. He was a hapless victim of circumstances and his name and address was misused by somebody.
21. It is stated by accused Mohd Zama that he is innocent and has been falsely implicated in the present case. He never executed any sale deed in favour of M/s. Himalaya Forest Products nor he appeared before the Sub-Registrar, Mumbai pertaining to khasra No.414, Village Satbari and the sale deed did not bear his signatures. Somebody had misused his name and passport number. IO had deliberately not made the FIR No. 356/2000 PS Mehrauli (EOW) Page- 21 of 49 registrar/sub-registrar as a witness before whom the said sale deed was registered. Original sale deed was never produced before Hon'ble Court alongwith the charge sheet. His specimen signatures were never taken by IO nor the IO took any permission from Hon'ble Court to take his specimen signatures. He had no concern with the aforesaid specimen signatures and the report of handwriting expert did not support the case of prosecution. He had not given any disclosure statement before the IO. IO took his signatures on some blank papers which were later on converted into some documents. The record in question was manipulated and fabricated and the officer concerned never produced the original record before theHon'ble Court.
22. I have heard Ld. APP for the State and Ld. counsels for accused persons and have also perused the judicial file carefully.
23. Accused M.P. Jain and Vivek Behl have been charged for the offence under section 120B IPC and section 471 IPC Accused Lahori Lal and Mohd. Zama have been charged under section 120 B IPC.
FIR No. 356/2000 PS Mehrauli (EOW) Page- 22 of 49
24. Both accused M.P. Jain and Vivek Behl have been charged with the offence under section 471 IPC for dishonestly applying for mutation of property comprising in Khasra No. 414 and 546/1 respectively by using the documents as genuine which they knew to be forged.
25. In order to bring home the charge against the aforesaid two accused persons, it would first be relevant to prove that both the accused persons applied for mutation of the property.
26. Prosecution has examined two witnesses before whom the application was allegedly filed. It is testified by PW1 Sh. Prem Singh who was the Patwari in the SDM Office at the relevant time that in January, 1999 "one M.P. Jain and his Chartered Accountant namely Rameshwar Chauhan had come with an application for mutation of land situated in Khasra No. 414 and Khasra No. 546/1 in Village Satbari. The application was marked to me by Naib Tehsildar." "I had made intekal entry in the register in regard to the application marked to me. M.P. Jain had shown me the original registry of the property situated in Khasra No. 414 and 546/1. After few days, one person namely Vivek Behl, M.P. Jain and Rameshwar Chauhan appeared before the Naib Tehsildar namely Naresh Kumar." "
FIR No. 356/2000 PS Mehrauli (EOW) Page- 23 of 49 M.P. Jain and Vivek Behl had shown the original register to Naib Tehsildar." In his cross examination, he stated that the application for mutation was brought in his office by 3-4 persons. He was confronted with statement under section 161 Cr.PC where he disclosed about 2 persons and also in examination in chief, he deposed the same.
27. PW2 Sh. Naresh Kumar was posted as Naib Tehsildar during the relevant time deposed that "two persons had come to my office with an application for mutation of land situated in Village Satbari. I instructed them to go to Halka Patwari."
28. Both PW1 Sh. Prem Singh and PW2 Sh. Naresh Kumar talk about presence of two persons at the time of filing of application and as per testimony of PW1 Sh. Prem Singh, M.P. Jain and Rameshwar Chauhan had gone to him with an application for mutation. This statement of PW1 Sh. Prem Singh is corroborated with the testimony of PW2 Sh. Naresh Kumar who also deposes that two persons came to his office and were sent to Halka Patwari. Hence, it can be inferred that two persons who appeared before PW2 Sh. Naresh Kumar were M.P. Jain and Rameshwar Chauhan who appeared before PW1 Sh. Prem Singh as testified by him.
FIR No. 356/2000 PS Mehrauli (EOW) Page- 24 of 49
29. Both these witnesses later named Vivek Behl and deposed that he was also present alongwith M.P. Jain at the time of submission of the application and showed his original sale deeds which were seen and returned back to them.
30. PW2 Sh. Naresh Kumar admitted in his cross examination that in his statement under section 161 Cr.PC that he stated to IO that one person visited his office with two applications on 19.03.1999 for the purpose of mutation. Contrarily, in his examination in chief, he stated that "on 19.03.1999 M.P. Jain and Vivek Behl had appeared in my Court alongwith Halka Patwari Sh. Prem Singh."
31. The only two witnesses examined by the prosecution to prove identity of accused M.P. Jain and Vivek Behl as well as their presence at the time of submission of alleged mutation application were PW1 Sh. Prem Singh and PW2 Sh. Naresh Kumar.
32. PW1 Sh. Prem Singh in his cross examination stated that "we used to conduct verification of various people who used to visit our office for various purposes. (Vol. We used to ask to furnish identity card, ration card, election card etc to ascertain FIR No. 356/2000 PS Mehrauli (EOW) Page- 25 of 49 to identity of respective individuals)."
33. PW2 Sh. Naresh Kumar in his cross examination stated that "I had not conducted any verification with regard to person who had applied for mutation. I cannot show any document on record to establish that the person who had visited the Tehsil was Vivek Behl. I had personally not asked for any Driving License, copy of passport, voter ID card, PAN card or any other proof of identification of accused." He further stated that "I had not asked accused Vivek Behl to sign any document in my presence nor he did sign any document while I conducted the proceedings." He further stated that "It is incorrect to suggest that there is a verification diary maintained in the office of Tehsil in relation to the respective individuals who used to visit our office for purpose of mutation."
34. It is stated by PW1 Sh. Prem Singh that there used to be verification diary. Contrarily, it is stated by PW2 Sh. Naresh Kumar that there used to be no verification diary.
35. The questioned documents which were purported to be signed by accused Vivek Behl and M.P. Jain were sent to FSL for comparison with their specimen signatures. No conclusive FIR No. 356/2000 PS Mehrauli (EOW) Page- 26 of 49 opinion was given on the signatures of accused Vivek Behl. Whereas the questioned signatures of M.P. Jain matched with his specimen signatures on the application form.
36. Both PW1 Sh. Prem Singh and PW2 Sh. Naresh Kumar identified accused M.P. Jain and Vivek Behl before the Court.
37. It is argued on behalf of accused Vivek Behl that he was not present either before PW1 Sh. Prem Singh or PW2 Sh. Naresh Kumar which is substantiated with the fact that his signatures did not match with the ones on the application form. Both PW1 Sh. Prem Singh and PW2 Sh. Naresh Kumar in their initial statements deposed that only one person appeared before them with the mutation application form. Though they improvised the same and introduced the name of accused Vivek Behl in the later part of their deposition.
38. The accused has also relied upon the order passed by the then Ld. ASJ Ms. Manju Goyal dated 31.05.2004 wherein it has come on record that the Naib Tehsildar and Patwari could not identify accused Vivek Behl in the presence of IO. The IO though denied the said fact in his cross examination by the Counsel for accused Vivek Behl. But PW2 Sh. Naresh Kumar FIR No. 356/2000 PS Mehrauli (EOW) Page- 27 of 49 in his cross examination admitted that he had seen accused Vivek Behl in the police station once. He had gone to the police station on asking of IO. He further admitted that he had not joined any TIP proceedings before Ld. MM for identification of accused.
39. It is an admitted fact that formal TIP in the present case for identification of accused persons was never conducted. The observation in the judicial order passed by Ms. Manju Goyal has not been challenged hence, judicial notice of the said fact can be taken by this Court.
40. Further it has come in the testimony of PW2 Sh. Naresh Kumar that on instructions of DC, notice was issued to both the aforesaid accused persons and it is admitted by IO (PW11) that document Mark DX1 came into his possession during investigation. Document Mark DX1 is a reply sent by accused Vivek Behl to Tehsildar stating that he had never purchased any land nor authorized any person to purchase any land for and on his behalf. It was further stated by him that he has no objection if the sale deed or the mutation sanction pursuant to alleged sale deed is set aside. The same is dated 08.09.1999. This letter was sent prior to the registration of FIR in the present case. FIR No. 356/2000 PS Mehrauli (EOW) Page- 28 of 49
41. It is vehemently argued on behalf of accused Vivek Behl that prosecution has not been able to prove presence of accused Vivek Behl at the time of submission of application. In support of his arguments, he has relied upon judgment titled as Dharam Pal Vs. State reported as 2009 (113) DRJ 864 where it has been held by the Hon'ble High Court of Delhi that "It is stated that admission of PW9 in his cross examination that the accused had been identified in the police station by PW1 is not worthy of any credence; accused not having being known to the witness from before, no identification parade having been held:
an identification for the first time in the police station is value less; for this proposition reliance has been placed upon Mohan Lal Ganga Ram Gehani Vs. State of Maharashtra, 1982 CCC 45 (SC)." Further, in judgment titled as Kanan & Ors Vs. State of Kerala reported as (1979) 3 SCC 319 that "in these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T.I. parade and got the identification made before the witness was called upon to identify the appellant in the Court." Further, in judgment titled as Mohan Lal Gangaram Gehani VS. State of Maharashtra reported as (1982) 1 SCC 700 where it has been held by the FIR No. 356/2000 PS Mehrauli (EOW) Page- 29 of 49 Hon'ble Supreme Court of India that "Another important circumstance which discredits the testimony of P.W. 5 (Shetty) is that he admits that although he did not know the accused from before the occurrence yet the accused was shown to him by the police at the police station. The relevant statement of P.W. 5 may be extracted thus:
"I had seen the accused before coming to the Court and after the incident, I had seen the accused ten days after I was discharged from the hospital. I was shown these accused by the Police at the Police Station."
Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straight forward.
For these reasons, therefore, we are unable to place any FIR No. 356/2000 PS Mehrauli (EOW) Page- 30 of 49 reliance on the evidence of Shetty so far as the identification of the appellant is concerned.
42. Further, it is argued on behalf of accused Vivek Behl that accused cannot be charged with the offence under section 471 IPC unless he has been charged for the offence either under section 463 IPC or 464 IPC. In support of his arguments, he relied upon judgment titled as Shiela Sebastian VS. K. Jawaharaj & Ors. reported as AIR 2018 SC 2434 where it has been held by the Hon'ble Supreme Court of India that " A close scrutiny of the aforesaid provisions makes it clear that, section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under section 463 IPC. Therefore, we can safely deduce that section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under section 465, first it has to be proved that forgery was committed under section 463, implying that ingredients under section 464 should also be satisfied. FIR No. 356/2000 PS Mehrauli (EOW) Page- 31 of 49 Therefore unless and untill ingredients under section 463 are satisfied a person cannot be convicted under section 465 by solely relying on the ingredients of section 464, as the offence of forgery would remain incomplete.
Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage FIR No. 356/2000 PS Mehrauli (EOW) Page- 32 of 49 deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
Although we acknowledge the appellant's plight who has suffered due to alleged acts of forgery, but we are not able to appreciate the appellant's contentions as a penal statute cannot be expanded by using implications. Section 464 the IPC makes it clear that only the one who makes a false document can be held liable under the aforesaid provision. It must be borne in mind that, where there exists no ambiguity, there lies no scope for interpretation. The contentions of the appellant are contrary to the provision and contrary to the settled law. The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding FIR No. 356/2000 PS Mehrauli (EOW) Page- 33 of 49 nature of the mortgage deed and it is brought to our notice that already the competent Civil Court has cancelled the mortgage deed and the appellant got back the property.
43. It has held in judgment titled as Md. Ibrahim & Ors vs State Of Bihar & Anr reported as (2009) 8 SCC 751 that "The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. 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 FIR No. 356/2000 PS Mehrauli (EOW) Page- 34 of 49 it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. 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 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 the Code are attracted." Further in judgment titled as Abdul Karim Madan Sahab vs State Of Mysore that "This clearly shows that the cheque must FIR No. 356/2000 PS Mehrauli (EOW) Page- 35 of 49 have been given to him by the complainant himself, and the complainant tried to retract from his position for some reason or the other. In these circumstances, therefore, there is no evidence at all to show that the accused know or had reason to believe that the cheque was a forged document and with this requisite knowledge he had used the cheque. The trial court was right in acquitting the appellant of the charge under Section 471 IPC. also. For these reasons, therefore, we are unable to agree with the view taken by the High Court."
44. It is thus categorically argued by counsel for accused Vivek Behl that once prosecution has failed to prove that accused Vivek Behl is the maker of false document or that the document was within his knowledge to be false, he cannot be held liable.
45. Further, it is argued that there are material discrepancies in deposition of two important witnesses hence, their testimonies cannot be relied.
46. It has been held in judgment titled as Sunil Kumar Sambhudayal Gupta & Ors. vs State Of Maharashtra reported as (2011) 2 SCC (Crl) 375 that "While appreciating the evidence, the court has to take into consideration whether FIR No. 356/2000 PS Mehrauli (EOW) Page- 36 of 49 the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police Vs. Saravanan & Anr, AIR 2009 SC 152).
Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan Vs. Rajendra Singh, (2009) 11 SCC 106).
The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be FIR No. 356/2000 PS Mehrauli (EOW) Page- 37 of 49 in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide:
Mahendra Pratap Singh V. State of Uttar Pradesh, (2009) 11 SCC 334)."
47. It is argued on behalf of accused M.P. Jain that the prosecution has failed to produce any original document on record. It has miserably failed to prove that the alleged documents were forged as none on behalf of the registered owners i.e Ansal Housing Estate (P) Ltd to prove that the said documents were not executed by them in favour of Lahori Lal, Mohd. Zama or M/s Himalayan Forest Agro Products Pvt. Ltd. Director of Ansal Housing Estate (P) Ltd Sh. R.D. Singh has not been brought in the witness box to prove that he had authorized Lahori Lal or Mohd. Zama to sell the property in favour of M/s Himalayan Forest Agro Products Pvt. Ltd.
48. In absence of any evidence to prove the documents which were filed allegedly the accused M.P. Jain before the Tehsildar are forged, the accused could not be charged with the offence under section 471 IPC. Moreover, it has come in the testimony of PW1 and PW2 that the mutation of the property was granted FIR No. 356/2000 PS Mehrauli (EOW) Page- 38 of 49 after following due process of law and nothing was found suspicious in any manner.
49. The DC on whose instructions, the cancellation process was initiated has also not been produced to prove that how it came to his knowledge that the documents annexed with the mutation application were forged when there was no complaint from Ansal Housing Estate (P) Ltd or anyone else regarding the misuse of title documents.
50. Before proceeding further, it would be relevant to understand the essential ingredients of section 471 IPC which are as under:-
The essential ingredient of Section 471 IPC are as follows:-
(i) Fraudulent or dishonest use of a document as genuine;
(ii) The person using it must have knowledge or reason to believe that the document is a forged one.
51. One of the requirement under section 471 IPC is that the person using the forged documents as genuine must have the requisite knowledge of the same.
FIR No. 356/2000 PS Mehrauli (EOW) Page- 39 of 49
52. In the instant case, the prosecution was required to prove that both M.P. Jain as well as Vivek Behl who allegedly appeared before Patwari and Tehsildar with mutation application had the requisite knowledge that the documents relied upon by them seeking mutation are forged.
53. From the evidence so adduced by the prosecution, it is not proved that accused Vivek Behl was present before the Patwari or Tehsildar. Prosecution has failed to prove his presence at the time of filing of application for mutation as there are material discrepancies in deposition of two important witnesses i.e PW1 and PW2. Moreover, letter Mark DX1 would show that accused Vivek Behl had duly informed the SDM that the documents were not filed by him and if any filed are without his knowledge. This document is significant piece of evidence as the same was sent much prior to registration of FIR. Even the signatures on the application purported to be that of Vivek Behl did not match with his specimen signatures. Once prosecution has failed to prove that accused Vivek Behl was present and filed mutation application hence, he cannot be said to have committed the offence under section 471 IPC.
54. As far as accused M.P. Jain is concerned, his specimen FIR No. 356/2000 PS Mehrauli (EOW) Page- 40 of 49 signatures have matched with one on the application for mutation. Though it is argued on his behalf that the FSL report has not been proved but same can very well be read under section 293 Cr.PC.
55. As per PW1, original mutation file was received by the IO Inspector Mahesh Narayan. It is stated by him that "the mutation of property in question was the job of Naib Tehsildar/sanctioning authority which included verification of identity of person in whose favour the mutation was sought to be done and various other enquiries in that regard."
56. Contrarily, it is deposed by PW2 Sh. Naresh Kumar that none of the documents as aforesaid were prepared or endorsed in his presence. None of the documents regarding the present case were ever seized by the IO from him or at his instance. The mutation of the property were done and performed as per the prescribed procedure. He further stated that none of the documents were verified by him as the same is not covered under his duties.
57. It has come on record in the testimony of PW1 Sh. Prem Singh and PW2 Sh. Naresh Kumar that the mutation was FIR No. 356/2000 PS Mehrauli (EOW) Page- 41 of 49 granted by adopting a due procedure as prescribed, original documents have not seen the light of the day. Neither PW1 Sh. Prem Singh nor PW2 Sh. Naresh Kumar have been able to disclose that the original documents are in whose custody and were shown to whom at the time of grant of mutation. Once the mutation was granted after adopting due procedure then the presumption is that the documents were proper unless the contrary is proved.
58. The prosecution should have examined someone from Ansal Housing Estate (P) Ltd who was the registered owner of property no. 414 who could alone have proved that the documents relied upon by the accused were forged. Interestingly, till date there is no complaint from Ansal Housing nor has it come on record as to how it came within the knowledge of Deputy Commissioner, South that the documents annexed with the mutation application are forged.
59. Prosecution has miserably failed to prove that the documents annexed with the application for mutation of property no. 414 were forged. Hence, accused M.P. Jain cannot be charged with the offence under section 471 IPC for using the forged documents as genuine.
FIR No. 356/2000 PS Mehrauli (EOW) Page- 42 of 49
60. As far as papers of property no. 546 is concerned, though the prosecution has succeeded in proving that the documents were forged as the registered owner PW3 Dr. Lalita Badhwar came in the witness box and deposed that she had not sold her property to anyone. But the prosecution has failed to prove the presence of accused Vivek Behl at the time of seeking mutation and once presence of accused Vivek Behl is not proved, he cannot be charged with any offence.
61. All the accused persons have been charged with the offence under section 120B IPC. Provision of section 120B IPC discussed as under:-
Section 120B IPC provides punishment for criminal conspiracy and provides as under :-
Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
Criminal conspiracy is an independent FIR No. 356/2000 PS Mehrauli (EOW) Page- 43 of 49 offence. It is punishable separately. The ingredients of the offences of criminal conspiracy are:
i). agreement between two or more persons.
ii). an agreement to do or cause to be done either an illegal act or an act which is not illegal in itself but is done by illegal means.
62. It is alleged against all the accused persons that they entered into criminal conspiracy to usurp the land comprising in khasra no. 414 and 546 by illegal means on the basis of forged documents.
63. It has been held by the Hon'ble Supreme Court of India in judgment titled as State of Kerala Vs. P. Sugathan & Anr reported as 2000 SCC (Crl) 1474 that "We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators. This Court in V.C. Shukla Vs. State [1980(2) SCC 665] held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an FIR No. 356/2000 PS Mehrauli (EOW) Page- 44 of 49 agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the FIR No. 356/2000 PS Mehrauli (EOW) Page- 45 of 49 offence in furtherance of the alleged conspiracy."
64. There is absolutely no evidence led by the prosecution to prove prior meeting of minds between the parties. Except for the fact that as per the prosecution both accused M.P. Jain and Vivek Behl went together for submission of application form. Admittedly, the owners of both the properties are different and the other two accused Lahori Lal and Mohd. Zama had absolutely no connect with property bearing no. 546.
65. Prosecution has not led any evidence in the form of any phone calls or any meeting between accused Lahori Lal, Mohd. Zama and Vivek Behl. It is also not understood when owners of both the property were different then how and why both accused M.P. Jain and Vivek Behl came together to submit the application forms.
66. It has been categorically held by the Hon'ble Apex Court in P.K. Narayanan Vs. State of Kerala that "an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent evidence.
67. There is absolutely no link proved on record against four FIR No. 356/2000 PS Mehrauli (EOW) Page- 46 of 49 accused persons to prove prior meeting of minds for commission of an offence.
68. In absence of any cogent and sterling evidence on record against any of the accused persons, they cannot be charged under section 120B IPC.
It has been held in judgment titled as M. Abbas Vs. State of Kerala reported as (2001) 10 SCC 103 that "The presumption under Section 4(1) in reference to an offence under Section 161 IPC is, as already noticed, a rebuttable presumption. The only evidence led in this case to establish charge under Section 161 IPC of the appellant having received gratification other than legal reward, as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions to favour the prime mover is the statement of the Contractor, PW 2. As already noticed, the Contractor has given different versions of the occurrence in his statement before the Vigilance Wing and in the court. At the trial, he has not supported the prosecution case fully. On the other hand, the explanation given by the appellant both during the cross- examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible. Where an FIR No. 356/2000 PS Mehrauli (EOW) Page- 47 of 49 accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. On the prosecution's own showing, in this case, that onus can be said to have been duly discharged by the appellant, more particularly, when the prosecution did not lead any evidence to show as to who made the payment to Kamalasanan who had removed the bump from the road, which bump was otherwise required to be removed by PW 2 for getting refund of his earnest money and security. Maybe, the allegation that the appellant accepted the amount as bribe to process his refund application is true but the court cannot convict an accused only on such probability or suspicion, howsoever strong it may be.
"Between may be true and must be true, there is a long distance to travel" and in this case the prosecution has failed to travel that distance through any unimpeachable evidence. The case of the prosecution has not been established beyond a reasonable doubt."
69. In view of the above discussion, the prosecution has miserably failed to prove the guilt of the accused persons, the benefit of which accrues in their favour. Accused Mahender FIR No. 356/2000 PS Mehrauli (EOW) Page- 48 of 49 Prasad Jain and Vivek Behl are acquitted for the offence under section 120B IPC and section 471 IPC. Accused Mohd. Zama, Lahori Lal are acquitted for the offence under section 120B IPC.
Announced in the open
Court on 20.09.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 49 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 356/2000 PS Mehrauli (EOW) Page- 49 of 49