Delhi District Court
Fir No. 223/2001 Ps : Preet Vihar State vs . Mohd. Yusuf. on 11 November, 2020
FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf.
CNR No. DLET-02-000170-2003 : CR Case no.3354/2016
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (EAST DISTRICT)
KARKARDOOMA COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Mohd. Yusuf
FIR No.: 223/2001
PS: Preet Vihar
U/s: 448/454380/34, IPC
Date of Institution : 05.04.2003
Date of reserving of order : 29.10.2020
Date of Judgment : 11.11.2020
JUDGMENT
1. CNR No. : DLET02-000170-2003
2. Serial No. of the case : 3354/2016
3. Name of the Complainant : Sh.Vijay Kumar
4. Date of incident : During the year 2000
5. Name of accused person :
Mohd. Yusuf S/o Hazi Wali Mohd.
R/o D-99/1 New Gobindpura, Delhi.
6. Offence for which chargesheet
has been filed : S.420, IPC
7. Offence for which charge
has been framed : S. 420,467,468,471, IPC
8. Plea of accused : Not guilty
9. Final Order : Acquitted
10. Date of Judgment : 11.11.2020
Page 1 of 42 ACMM/EAST/KKD/11.11.2020.
FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 BRIEF REASONS FOR ORDER:
1. Mr. Mohd. Yusuf the accused herein, has been chargesheeted for committing offence punishable under Section 420, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. Present FIR had been registered on the basis of an order of Ld. Predecessor on an application of the complainant, under Section 156(3), Cr.P.C. The case of the prosecution is that complainant Vijay Kumar had filed a complaint stating that he had purchased shop No.1 in property no. D-99/1, New Govindpura Delhi from Taranjeet Singh Lamba on 08.11.2000. He also obtained the physical possession of the shop. Documents were also executed in his favour. On 16.12.2000 at about 4:00 pm, the complainant received a telephone call from one of his friend who told that some persons were breaking the locks of his shop. He reached at the shop immediately and found the locks in broken condition. Some persons were inside his shop. He informed the police by calling the PCR. Police officials arrived at the spot. The complainant and the said persons were taken to the police station. However, the police did not register an FIR. Thereafter, an application under Section Page 2 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf.
CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 156(3) Cr.P.C was filed in the Court. Directions were issued to the SHO to register an FIR and to conduct investigation.
3. After registration of the FIR investigation was started. During investigation, it was found that the shop originally belonged to accused Mohd. Yusuf. He had sold the said shop to one Ahmed Baig on 29.06.1995. Possession was also handed over to him. Various documents in this regard were also executed. The accused had again sold the said shop to one Vedpal on 19.05.2000, by executing various documents in his favour which were also registered in the office of Sub-Registrar. Vedpal sold the said shop to one Kamal Kishore Arora on 07.09.2000. Said Kamal Kishore sold the said shop to one Tajinder Singh Lamba on 04.10.2000, who sold the shop to the complainant on 08.11.2000. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge-sheeted for committing the offence punishable under Section 420, the Indian Penal Code.
4. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. The accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, Page 3 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 charge for the offence punishable under Section 420/467/468/471, IPC was framed against the accused. It was read over to him, to which he pleaded not guilty and claimed trial.
5. Matter was fixed for prosecution evidence.
Prosecution has examined 15 witnesses to prove its case.
6. PW1 Ahmed Baig is a public witness and first purchaser of the property. He would depose that on 29.05.1995, he had purchased a shop at 99-D, Parwana Road, Govind Pura, from accused Mohd. Yusuf. He had used the said shop as godown for papers. He used to visit the shop once in 2-3 months. On 30.09.2000, when he reached at the shop, he found that there was another lock on his lock. He filed a complaint to police. Thereafter he came to know that the lock was placed by the accused. In the Police station, Yusuf had stated that Rs.20,000/- were due on his part and thereafter, he had made payment of Rs. 20,000/- on 15.10.2000. The matter was compromised with Yusuf and he had removed his lock. At that time, Mohd. Yusuf also gave in writing in respect of receiving of Rs. 20,000/- from him.
7. PW-1 produced the certified copy of the compromise deed dated 15.10.2000 executed between him and Yusuf Page 4 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 which is Ex. PW-1/A. He also proved the GPA vide which Mohd. Yusuf had transferred the property as Ex.P-1, Agreement deed Ex. P-2, Affidavit Ex. P-3, receipt of Rs. 1,10,000/- Ex. P-4 and Ex. P-5, and deed as Ex. P-6. He also proved the GPA, vide which, he sold the said shop to Mohd. Umar as Ex.P-7, Will deed as Ex. P-8, Agreement to sell as Ex. P-9, Affidavit as Ex. P-10, possession letter, vide which, he handed over the possession of the said shop to Mohd. Umar as Ex. P-11, Payment receipt through which he received Rs. 1,50,000/- from Mohd. Umar as Ex. P-12. He had identified his signatures as well as his thumb impressions on the aforesaid documents at different points. He also identified the accused in the Court.
8. PW1 would also depose that he had sold this shop to Mohd. Umar and handed over the possession to him. All the aforesaid documents were handed over by Mohd. Umar to the IO and he had made a complaint, which is marked as Mark-A in the Police Station and that at that time, the matter was compromised with Mohd. Yusuf. Later on, he came to know that Mohd. Yusuf had sold the said shop to some other person.
9. PW-2 Sh. Bal Dev Raj is also a public witness. He would depose that he knew Tajender Singh Lamba as he had Page 5 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 sold shop no. 99/1, New Govind Pura near Pawa Nursing Home, Delhi-51 to his brother-in-law Vijay Kumar in the year 2000 for a consideration of Rs. 4,70,000/- vide transfer documents, upon which he was a witness. He proved the said documents by identifying his signatures i.e. GPA as Ex. PW-2/A, Will as Ex. PW-2/B, Agreement to Sell as Ex. PW-2/C, receipt as Ex. PW-2/D and Possession Letter as Ex. PW-2/E. Later on, he came to know that locks of the said shop were broken by someone.
10. PW-3 Hakimuddin, father of Mohd. Umar, would depose that his son Mohd. Umar had purchased a shop from Ahmed Beg and was running a business in the said shop and possession of the said shop was with Umar from the date of its purchase. In reply to a question, he showed his lack of knowledge as from whom Ahmed Beg had purchased the said shop.
11. As PW-3 could not state the complete facts, he was cross-examined by Ld. APP, wherein he denied having stated to the police that the said shop was purchased by Ahmed Beg from Mohd. Yusuf. He further stated that no Vijay Kumar came to dispute the possession of the said shop and no such fact was told by him to the police.
12. PW-4 Mohd. Wahid is also a public witness. He Page 6 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 would depose that earlier, he was residing at 11 A, Old Brijpuri, Gali no. 9, Delhi-51 and his neighbour Mohd. Umar, who was residing at 14 A, Old Brijpuri had purchased a shop bearing no. D-99/1, New Govind Pura, from Ahmed Baig on 31.10.2000 and obtained the possession and kept his articles and started his work. Vijay Kumar had never got the possession over the said shop. IO had seized the photocopy of the documents produced by Mohd. Umar vide memo Ex.PW-4/A and IO had also seized the original documents Ex.P-1 to P-12 vide memo Ex. PW-4/B. Mohd. Umar was in possession of the said shop and using the shop for purpose of keeping of 'spring' and 'iron rods'.
13. PW-5 Islamuddin is a private photographer. He would depose that he was running a shop of photography at 26/3, Parwana Road, Old Brijpuri. He had obtained the photographs (marked as Mark PW-5/A to C) of shop of Mohd. Umar at the time of inauguration of the shop and at that time of inauguration, Mohd. Umar and Yusuf were present.
14. The witness was cross-examined by Ld. APP. The witness admitted that Mohd. Yusuf had sold a shop to Ahmed Beg at Parwana Road, on which Mohd. Beg had taken possession and later on, Mohd. Beg had sold the said shop to Mohd. Umar and Mohd. Umar had got the possession. He admitted having made a statement Ex. PW-5/P-1 to the police.
Page 7 of 42 ACMM/EAST/KKD/11.11.2020.FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 He would also depose that he was unable to produce the negatives of the aforesaid photographs as the same were already destroyed. He denied the suggestion that he was deliberately not producing the negatives of the said photographs.
15. PW-6 SI Rajnikant is one of the IO in the matter. He would depose that on 16.12.2000, after receiving DD No.26-A, which was related to a quarrel and possession over property situated at D-99/1. New Govindpura, Delhi, he reached at the spot, where he met with Vijay Kumar and Mr. Umar. Vijay Kumar had handed over him the tools, which were used in breaking the lock of the shop on the above said address. Mr. Umar was present inside the shop, where some chairs, cot and iron rods were lying. Both the parties i.e. Vijay Kumar and Mr. Umar were claiming their ownership of the said shop. He did not find any broken lock at the shop. He recorded the statements of some public persons, but none of them had told him about breaking of lock affixed to the said shop. Thereafter, he had produced both of them before the ACP, SHO at PS Preet Vihar. Both the parties were having the documents relating to the ownership of the said shop and then, he had filed a kalandara under Section 145 Cr.P.C which is Mark P-6/A. He prepared a list of articles, which were lying in the shop. The list is Mark P- 6/B. He also seized the tools, used for breaking the lock, vide Page 8 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 memo Mark P-6/C. Thereafter, a lock was fixed on the said shop with the consent of both the parties and the key of the said lock was handed over to one Shyam Lal. Thereafter, he had recorded the statement of Mohd. Wahid son of Sh. Haji Hakimuddin, Vijay Kumar son of Sh. Ramji Lal, JP Singh s/o Sh. R.P. Singh, Ashok Kumar s/o Hari Kishan and Ahmed Bed s/o Mohd. Beg.
16. PW-7 Sh. Brij Pal Verma is also one of the public witnesses in the matter. He would depose that he was a property dealer by profession and was running his office at 1/1, Radhe Shayma Park, Parwana Road, Delhi-51. He knew Vedpal as he was his financier. He further told that in the year 2000-2001 the accused had come at his office and offered to sell his shop in the presence of Vedpal. Thereafter, they went to Parwana Road, New Govindpura along with Mohd. Yusuf, where the accused had shown the shop in question to them. They found that the accused had been residing in the premises in which the shop was situated. When they asked the accused to show the documents of the shop in question, the accused had shown photocopy of documents and said that original documents were mortgaged with Garg Property Dealer. He verified mortgaging of documents from Garg property dealer and he confirmed the said fact. Ved Pal had shown his willingness to purchase the Page 9 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 shop in question. The consideration amount was fixed and date of registry was fixed after 8 days. At the time of registry, Vedpal made entire payment to the accused and registry was executed between them. When Vedpal asked the accused to hand over possession of the shop in question, the accused sought 3-4 days by stating that repairing work was going on at his house and kattas of cement were lying inside the shop in question. After some days, Vedpal sold the shop in question to some other person as he had purchased said shop as investment being a financier. After some days, he came to know that the accused had already sold the shop in question to some other person. Due to this fraudulent conduct of the accused, dispute had taken place between the accused and the last purchaser to whom Ved Pal had sold the shop in question.
17. Ld. APP had put some leading questions to the witness with the permission of the Court. The witness admitted that the shop in question was situated at D-99/1, New Govindpura, New Parwana Road, Delhi and that Mohd. Yusuf/accused had sold the aforesaid shop in question to Vedpal on 19.05.2000.
18. PW-8 Mohd. Ajmeri Qureshi is also one of the public witness. He would depose that he did not remember anything about this case. He might have been present in some compromise between some parties being a social worker, but he Page 10 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 did not remember any specific about this case. He knew Ahmad Beg as he was residing in Khureji about 15 years back and he also knew accused Mohd. Yusuf as he was also residing in Khureji in his locality. There was some dispute between Mohd. Yusuf and Ahmad Beg about 15 years ago. The matter was compromised and he had witnessed the same being a social worker and living in the same locality. The dispute between Mohd. Yusuf and Ahmad Beg was regarding some commercial property. The said compromise was effected at PS Preet Vihar, which was earlier situated in Jagat Puri. The compromise effected between the parties at PS was recorded into writing and was also signed by him as a witness. The photocopy of compromise dated 06.10.2000 between Mohd. Yusuf and Ahmad Beg is Mark PW-8/A.
19. Ld. APP had put some leading questions to the witness with the permission of the Court. He would say that he did not know if the dispute was regarding Shop no. D-99/1, New Govind Pura, Delhi.
20. PW-9 Sh. Kamal Kishore is also one of the public witnesses. He would depose that he had purchased a shop bearing no. D-99, at New Govindpura, Delhi from Ved Pal on 07.09.2000 and he had visited the said shop at the time of purchase. There was one lock on the shutter and no Page 11 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 article/goods were lying in that shop at that time. He had not inquired from the neighbours regarding ownership of the shop as Ved Pal had purchased the said shop from Yusuf and accused Yusuf was also residing in the same premises in which the shop was situated. Due to that reason, he did not have any doubt about the title of the shop at that time. At the time of purchase of the shop, he was not aware about the fact that accused Yusuf had already sold aforesaid shop to someone else before selling it to Ved Pal. After that, on 04.10.2000, he had sold the said shop to Tarjeet Singh Lamba and sale documents and agreements were prepared. After selling the shop, he had handed over the peaceful possession to Tarjeet Singh Lamba. Later on, he came to know that accused Yusuf had already sold the aforesaid shop to Ahmed Beg in the year 1995.
21. Ahmad Umar has been examined as a public witness. Inadvertently his number is also mentioned as PW9. He would depose that he was running a general store shop at shop No. D- 99/1, Parwana Road, New Gobindpura, Delhi. He had purchased the said shop on 31.10.2000 from Ahmad Baig vide registered agreement to sell Ex. PW-9/A, registered GPA Ex. PW-9/B, registered Will Deed Ex. PW-9/C, possession letter Ex. PW-9/D, payment receipt Ex. PW-9/E and affidavit Ex. PW-9/F given by Ahmad Beg. He had taken the possession of the Page 12 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 aforesaid shop on very same day from Ahmad Beg and started business of scrap material at the aforesaid shop. Said shop was unveiled by Sh. Shyam Lal Mehta, who was recognized personality of that area on 16.12.2000 in the presence of public persons of that locality, including accused Mohd. Yusuf. Photographs were taken by photographer and his younger brother. On 16.12.2000, three persons came at his shop at about 2.00 p.m. and asked him to vacate the said shop by saying that said shop belonged to them. Thereafter, he went to the police station and lodged a complaint Mark-A in this respect. On the same day, after 6.30 p.m., one person namely Vijay Kumar came at his shop along with police official and claimed that he was the owner of said shop and thereafter, police took him and Vijay Kumar to the Police Station, where he had shown his property documents to the police. Vijay Kumar had also shown his documents pertaining to the said property to the police. The then ACP and SHO had asked him to close the said shop for sometime till verification of the actual owner. Accordingly, with his consent as well as consent of Vijay Kumar, said shop was locked and the key was handed over to Shyam Lal Gautam. Thereafter, the matter was referred to SDM Court u/s 145 Cr.P.C, where issue was decided in his favour and he got possession of his aforesaid shop again on the direction of SDM Page 13 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 with the help of police. He came to know that the accused was trying to take possession of his aforesaid shop with the connivance of Vijay Kumar. During the course of investigation, he handed over nine photographs to the police, out of them three photographs are Mark PW-5/A to Mark PW-5/C. Remaining photographs are Mark PW-9/X-1 to Mark PW-9/X-
6. During the course of investigation, he had also handed over original documents of the property in question to the police and same were taken into police possession vide memo Ex. PW-4/E.
22. PW-10 Sh. Nathi Ram is also one of the public witnesses. He would depose that he was doing the business of property dealer and the accused had come to his shop for selling his shop, which was situated at Parwana Road, Delhi. He had shown the shop to Ved Pal after opening the lock of the shop, which was lying vacant at that time. The negotiation for purchasing was done at his shop. Ved Pal had handed over earnest money to the accused in his presence. After that, Ved Pal had handed over entire consideration amount for purchasing the shop to accused Yusuf and title documents of the said shop were executed in favour of Ved Pal by accused. He also handed over the entire chain of the title documents to Ved Pal. The accused had also handed over peaceful possession of the shop to Ved Pal in his presence.
Page 14 of 42 ACMM/EAST/KKD/11.11.2020.FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016
23. PW-11 Sh. Vijay Kumar is the complainant. He would depose that he had purchased the property/shop, which number, he did not remember, situated at Parwana Road, New Govind Pua, Delhi-51 from Tarjeet Singh Lamba vide GPA Ex. PW-2/A, Deed of Will Ex. PW-2/B, Agreement to sell Ex. PW- 2/C having his photograph and photograph of T.S. Lamba, Affidavit, receipt Ex.PW-2/D and possession letter Ex. PW-2/E on 08.11.2000. He took the possession of property in question from T.S. Lamba and put his own lock on the said property. He did not put any articles inside the said shop at that time. On 16.12.2000, he was informed by Brij Pal Verma telephonically that some other person had taken possession of his shop by putting his lock at his shop. He reached at the spot and called PCR. PCR officials arrived at the spot and after some time, police officials of PS Preet Vihar also reached there. The police seized the broken lock and equipment to break the locks. At that time, Mohd. Umar was present there and was claiming that the shop in question belonged to him. Thereafter, he and Mohd. Umar were taken to the PS, where he filed a complaint. He had also shown his ownership papers to the police and thereafter, the matter was referred to the SDM court. Concerned SDM decided possession of Mohd. Umar on the said shop by making observation that documents produced by Mohd. Umar were Page 15 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 executed/prepared prior to his ownership documents regarding said property in question. During course of time, he came to know that the said property was purchased by T.S. Lamba from Kamal Kishore and Kamal Kishore had purchased the said property from Vedpal. Vedpal had purchased the said property from accused Mohd. Yusuf. Thereafter, all the victims arranged a meeting and decided collectively that Mr. Vedpal should file criminal complaint against accused Mohd. Yusuf, who had cheated them. He had purchased the said shop for a consideration amount of Rs. 4,75,000/-, however, purchasing amount was shown less than Rs. 4,75,000/- in GPA and agreement to sell.
24. PW-12 ASI Rajiv Kumar is the police official who had joined the investigation with the IO. He would depose that the IO had arrested accused Mohd. Yusuf vide memo Ex. PW- 12/A . His personal search was carried out vide memo Ex. PW- 12/B. The IO had interrogated the accused and took his thumb impression on Ex. PW-12/B. The IO had also taken specimen signatures of the accused, which are Ex.PW-12/C (running in 5 pages).
25. PW-13 Retd. SI Mahendra Singh is one of the IO in the matter. He would depose that on 03.05.2001, after registration of the FIR, he contacted complainant Vijay Kumar Page 16 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 to hand over the original chain of documents of property in question and Vijay told him that original chain of document was lying in the SDM court. Thereafter, on his retirement, he had handed over the case file to MHC(R), Preet Vihar.
26. PW-14 ACP Ram Avtar Yadav is also one of the IOs. He would depose that on 25.12.2001, he joined the investigation of the present FIR. During the course of investigation, he met with complainant Vijay Kumar and made inquiry from him. He collected copy of kalandra pending before the SDM court and placed with the charge-sheet. He collected original DD entry no. 2A dated 17.12.2000 and 26A dated 16.12.2000 which are Ex.PW-14/A and Ex.PW-14/B. He interrogated Mohd. Umar and collected photocopy documents of the property in question, which were produced by him. He seized them vide memo Ex. PW-4/A. He recorded statement of Mohd. Umar and statements of witnesses of seizure memo. On 04.07.2020, complainant Vijay Kumar handed over original registered GPA Ex. PW-14/C1 (running in 4 pages dated 19.05.00) along with Deed of Will Ex. PW-14/C2, Agreement to sell Ex. PW-14/C3 (running in 3 pages), Affidavit Ex. PW-14/C4, receipt Ex. PW- 14/C5, possession letter Ex. PW-14/C6, original registered GPA Ex. PW-14/C7 (running in 5 pages) dt. 07.09.2000 along with Deed of Will Ex. PW-14/C8, Agreement to sell Ex. PW-14/C9 Page 17 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 (running in 3 pages), affidavit Ex. PW-14/C10, receipt Ex. PW- 14/C11 and possession letter Ex. PW-14/C12, original registered GPA Ex. PW-14/C13 (running in 5 pages) dated 04.10.2000 along with Agreement to sell Ex. PW-14/C14 (running in 5 pages), Affidavit Ex. PW-14/C15, Receipt Ex. PW-14/C16, Will Ex. PW-14/C17, original registered GPA already Ex. PW-2/A dated 08.11.2000 along with Deed of Will already Ex. PW-2/B, Affidavit, Agreement to sell already Ex. PW-2/C, receipt already Ex. PW-2/D and possession letter already Ex. PW-2/E. He seized those documents vide memo Ex. PW-14/B. During course of investigation, Mohd. Umar handed over original GPA dated 29.06.1995 (Ex.PW-14/C18), Agreement Deed dated 29.06.1995 (Ex.PW-14/C19), Affidavit (Ex.PW-14/C20), receipt (Ex.PW-14/C21) of Rs. 1,10,000/- dated 29.06.95, Will deed dated 29.06.1995 (Ex.PW-14/C22) and GPA dt. 31.10.00 (already Ex. P7), along with Agreement to sell (already Ex. P3), Will Deed (already Ex. P8) and affidavit of Ahmad Beg (already Ex. P10), Possession Letter dt. 31.10.00 (already Ex. P11), receipt (already Ex.P12) etc. He seized those documents vide memo Ex.PW-4/B. On 22.10.02, he arrested accused Mohd. Yusuf vide memo Ex.PW-12/A. He recorded his disclosure statement Ex. PW-14/D. Personal search of the accused was conducted vide memo Ex. PW-12/B. He also took Page 18 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 LTI and RTI of the accused which are Ex.PW-12/B and Ex. PW- 14/E. On 22.10.02, he had taken specimen signatures of the Mohd. Yusuf in the presence of Ct. Rajesh on 5 pages, which are Ex.PW-12/C. He had sent questioned documents i.e. GPA dt. 29.06.95, Agreement Deed dt. 29.06.95, Affidavit Ex. PW-14/C10, Will deed dt. 29.06.95, GPA dt. 19.05.00, Deed of Will dt. 19.05.00, Agreement to sell dt. 19.05.00, Affidavit Ex.PW-14/C4, receipt Ex. PW-14/C5, Possession Letter Ex. PW-14/C6 along with specimen signatures of the accused to FSL Kolkata through Ct. Ashok and accordingly, questioned documents and specimen signatures were deposited in FSL Kolkata. He collected FSL opinion running in 2 pages which are Mark X1 and X2. He also collected 9 photographs of the property in question from SI Rajnikant and placed the same with the charge-sheet, which are Ex. PW-5/C, Ex. PW-5/A, Ex. PW-5/B and Ex. PW-9/X1 to PW-9/X6. He also collected complaint of Vedpal from SI Sanjay and placed the same with charge-sheet and the same is Mark Y. During the course of investigation, he recorded statements of the witnesses and placed relevant documents with charge sheet. On the completion of the investigation, he had prepared the challan.
27. PW-15 Sh. Anand Swaroop Gupta is the forensic expert. He would depose that documents pertaining to present Page 19 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 case i.e FIR no. 223/2001, PS Preet Vihar, u/s 420/448/380/34 IPC were received in his office laboratory on 18.1.2002 vide memo no. 2855/SHO/Preet Vihar, Delhi dated 13.12.2002 of Additional Deputy Commissioner of Police, East Delhi. The documents received in his laboratory were marked as Q-1 to Q- 25 as questioned documents and specimen signatures of one Mohd. Yusuf were marked as S-1 to S-5. The above mentioned documents were stamped and marked in his office laboratory for the purpose of identification with his laboratory case reference no. DXC-492/2002. The documents were thoroughly examined in his office laboratory with the help of available scientific aid and after a thorough scientific examination, he came to the conclusion that the red enclosed signatures stamped and marked as Q-1 to Q-25 and S-1 to S-5 were all written by one and the same person. The above report was typed in his office laboratory by the Government stenographer under reference no. DXC-492/2002 dated 01.01.2003. As per the Government of India norms, the abovementioned documents were also examined independently by expert Sh. S.K. Saxena, the then Government Examiner of questioned documents, Ministry of Home Affairs, Government of India, Kolkata and he had also come to the same conclusion as concluded by him. The typed report was signed by him as well as by S.K. Saxena Page 20 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 and same report was forwarded to the Additional Dy. C.P., East District, Delhi Police, Delhi under the signatures of Mr. S.K. Saxena with his office laboratory reference no. DXC- 492/2002/114 dated 01.01.2003. He proved his report as Ex.PW-15/A. The covering letter is Ex. PW-15/B.
28. All the witnesses were cross examined by Ld. Defence Counsel. The prosecution evidence was closed.
29. The Accused was examined under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. The accused denied the incriminating evidence. He would state that he was innocent.
30. Accused Mohd. Yusuf examined himself as DW1. He would depose that he was the owner of the property bearing no. D-99/1, New Govind Pura, Parvana Road, Delhi-5l. He had purchased the property from Zaibun Nisha in the year 1994. He proved the documents i.e. GPA as Ex. DW1/A (certified copy), Agreement to sell as Ex. DW-1/B, will as Ex. DW-l/C, Affidavit as Ex. DW-l/D, receipt as Ex. DW-l/E, sale deed as Ex. DW-1/F and Rent note as Ex. DW-l/G. Between the years 1990 to 1996, he was working with Mr. Ahmad Beg as a roller and binder. At that time some inquiry with labour commissioner was going on with Ahmad Beg and therefore he asked all the employees to sign on certain papers. Being an employee and in good faith, he signed on some blank papers/non judicial stamp papers. He had Page 21 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 not sold any property to Ahmad Beg at any point of time. In the year 1997, he had let out the property to one Jitender Johar. He vacated the property in the year 1998. Thereafter, he never let out the property and same was being used by his elder brother. In the year 2000 one broker Mr. Verma along with one Vedpal came for purchasing the aforesaid property. The deal was fixed at Rs. 3.55 Lacs and an agreement was also executed. However, the day on which the power of attorney was to be executed, Mr. Verma only offered to pay Rs. 45,000/-, however he refused as the deal was finalized at Rs. 3.55 Lacs. Mr. Verma refused to pay Rs. 3.55 Lacs. He was not paid a single penny. Later on, a dispute was arose between Mr. Verma and Vedpal and the deal was cancelled. He was in possession of property till 2003. Thereafter, in the year 2000, police officials came along with order of SDM and they took the possession. He had already filed a civil suit as well as complaint against Ahmed Beg. Certified copy of same was proved as DW-1/1 (colly). He had not executed the documents in question i.e. Ex. PW-14/C1 to PW-14/C6, Ex. PW-14/C7 to C-17, already Ex. PW-2/A to Ex. PW-2/E, already Ex. PW-14/C18 to PW-14/22, PW-9/A to Ex. PW-9/F. He had filed two complaints i.e. Ex. DW-1/2 and DW- 1/3. He was innocent and had not committed any offence.
31. DW1 was cross examined by Ld. APP. He did not lead Page 22 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 any other defence evidence. Therefore, the matter was fixed for final arguments.
32. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. All the ingredients of the offences have been proved by the prosecution beyond reasonable doubts against the accused. It has been proved by various witnesses that the accused had cheated Vedpal and other subsequent purchasers. The accused has taken different stands on different occasions during trial. He has failed to prove his defence. The testimonies of the prosecution witnesses are trustworthy and reliable. Hence, it is prayed, the accused may be convicted for the offence for which he is charged with.
33. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution which are sufficient to show that the accused had been falsely implicated. The accused was not named in the complaint. All the witnesses are interested witnesses. The accused is innocent. He is an illiterate person. His signatures had been obtained on some papers by Vedpal under the pretext that the documents were required to provide a job to him.
Page 23 of 42 ACMM/EAST/KKD/11.11.2020.FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 Reasonable doubts have been created on the story of the prosecution. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
34. I have heard the rival submissions and carefully perused the material available on record.
35. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court It is also settled proposition of law that the case of the prosecution must stands on its own legs and it can not take the benefit of the shortcomings in the defence of the accused.
36. In the present case, the accused has been charged for offences punishable under Section 420, 467, 468, and 471, IPC. It has been alleged that the accused had cheated Vedpal and induced him to make payment under the pretext that a shop was sold to him. However, at that time the accused was not the Page 24 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 owner of the said shop. It has also been alleged that the accused had forged various documents for the purpose of cheating said Vedpal. He had used those forged documents as genuine. The documents were in the nature as mentioned under Section 467, IPC.
37. First, I shall take the charge of offence punishable under Section 420, IPC. Section 420 IPC provides punishment for cheating and dishonestly inducing delivery of property. In order to constitute, offence under Section 420 IPC, the prosecution has to establish that the accused had deceived the complainant dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. Thus, the essential ingredients of the offence is that there must be dishonest intention on the part of the accused at the time of making the representation to the complainant / victims on the basis which the complainant/ victims part with his / their property. Intention must be dishonest and there must also be mens rea.
38. In the present case, the allegation of the prosecution is that the accused had dishonest intention to cheat and that he had cheated Vedpal and induced him to deliver property i.e., money. During course of the arguments, it has been argued by Ld. APP that the subsequent purchasers were the victims of the cheating Page 25 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 done by the accused against Vedpal and hence he should be convicted for the offence punishable under Section 420, IPC.
39. Perusal of the record would show that out of total 15 witnesses examined by the prosecution PW6 and PW12 to PW14 are police officials who had been part of the investigation. PW15 is the forensic examiner. Similarly, PW2, PW3, PW4, PW5, PW7, PW8, and PW10 are also not having any relation with the property in question. They are in a manner only formal witnesses who had no connection with the property in question. PW2 was a witness of dealing between complainant Vijay Kumar and T S Lamba. PW3 is father of Mohd. Umar, who had purchased the property from Ahmad Beig. PW4 is neighbour of Mohd. Umar. PW5 is a photographer to prove the possession of Mohd. Umar on the said shop. PW7and PW10 are property dealers. PW8 is also a formal witness who has stated that he did not remember anything. He has been examined as a witness to prove a settlement between the accused and Ahmad Beig.
40. The testimonies of PW1, PW9 (Kamal Kishor and Mohd Umar), and PW11 complainant Vijay Kumar are related to the property in question. Perusal of the record would show that PW1 Ahmad Beig is the person who had first purchased the property in question from the accused. He was also having the Page 26 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 possession of the property after purchasing it. Thus, there was no cheating with him. Nor he was induced by the accused to deliver any property. PW9 Mohd. Umar had purchased the property from PW1 and he did not have any dealings with the accused.
41. PW11, complainant Vijay Kumar has stated that he had purchased the property from T.S. Lamba. He did not have any dealings or communications with the accused at any point of time. Similarly, PW Kamal Kishor is the person who had purchased the property from Ved Pal. He has not stated in his evidence that he had met with the accused and that the accused had represented to him at any point of time that he was the owner of the property when it was sold to Vedpal. The witness has stated in his testimony that he did not make any inquiry from the neighbors at the time of purchasing the property in question. He has not mentioned about any meeting or communication, by any means, between him and the accused. Therefore, it can not be said that the accused had induced him to deliver any property.
42. PW Kamal Kishor has stated that he had purchased the property from Vedpal. This person named Vedpal allegedly had the dealings with the accused. However, Vedpal has not been examined by the prosecution to prove that the accused had Page 27 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 dishonestly and/or fraudulently represented himself the owner of the property in question and induced him to pay the money in consideration of transferring the property in his name. It was only Vedpal who had direct dealings with the accused and who could have deposed that he was dishonestly or fraudulently induced by the accused to pay him money under the pretext of selling a shop to him of which he was not the owner at the relevant time. However, said person has not been examined by the prosecution. It is also noteworthy that the documents Ex.PW14/C1 to Ex.PW14/C6 do not appear to have the signatures of said Vedpal. Therefore, a reasonable doubt has also been raised on the existence of a person named Vedpal. It also becomes doubtful whether such a person had actually purchased the property from the accused or not.
43. Be that as it may, as stated hereinabove, to constitute an offence under Section 420, IPC there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security. In the present case, when there was no communication between the accused and the witnesses, it can Page 28 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 not be said that he had cheated them and that he had induced them to deliver any property or to make, alter or destroy wholly or in part a valuable security, or anything signed or sealed and which was capable of being converted into a valuable security. No such evidence has been brought on record.
44. In these circumstances, I hold that the prosecution has failed to prove the ingredients of the offence punishable under Section 420, IPC against the accused.
45. Now, I come to the charge of the offence of forgery. It has been alleged that the accused had forged various documents i.e., documents Ex. PW14/C1 to Ex.PW14/C6. These documents are the documents stated to be executed by the accused in favour of Vedpal for the purpose of transferring the property in question in his favour. It is the case of the prosecution that the accused had forged these documents for the purpose of cheating said Vedpal. He had used those forged documents as genuine. It has been argued by the Ld. APP that the documents are forged documents as the accused had represented himself as the owner of the property while he was not so when the documents were executed and hence he had forged those documents.
46. It has been shown on the record by evidence that the accused had executed various documents in favour of Ahmed Page 29 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 Beig transferring the possession and the ownership of the said shop. In his testimony as DW1, the accused has denied execution of any such documents in favour of Ahmad Beig. However, he has admitted his signatures on those documents. There is nothing on the record to show that those documents have been cancelled or declared null and void by any court of law. There is also no evidence to substantiate the said claim of the accused. Hence, it can not be said that the accused had not executed those documents in favour of Ahmad Beig. Thus, previous ownership of Ahmad Beig has been established.
47. The accused has also stated in his testimony that he had not executed any documents in favour of Vedpal as the deal was cancelled. The documents stated to be executed by the accused in favour of Vedpal were sent to FSL for examination of handwriting. The report of the forensic expert has been proved by PW15 as Ex.PW15/A. As per the report the questioned signatures on the abovesaid documents were in the handwriting of the same person whose specimens were sent for comparison. No evidence contrary to the said report has been brought. Thus, it has been shown that the accused had signed the documents Ex.PW14/C1 to Ex.PW14/C6. It also stands proved beyond reasonable doubts that he had signed those documents showing himself as owner of the shop in question. It also stand proved Page 30 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 that the accused was not the owner of the said shop at that time when those documents were signed by him representing himself as owner of the Shop in question.
48. Before discussing further, it would be relevant to discuss the law relating to forgery. Section 471 IPC provides punishment for using as genuine a forged document or electronic record. Section 468 IPC provides punishment for committing forgery, intending that the document forged shall be used for the purpose of cheating. Section 467, IPC provides punishment for forging a valuable security, will etc. Section 463 IPC defines forgery while Section 464 IPC defines making a false document. These two Sections read as under :-
"463. Forgery--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
"464. Making a false document.--A person is said to make a false document or false electronic record First.--Who dishonestly or fraudulently "(a) makes, signs, seals or executes a document or part of a document;
"(b) makes or transmits any electronic record or part of any electronic record;Page 31 of 42 ACMM/EAST/KKD/11.11.2020.
FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 "(c) affixes any electronic signature on any electronic record;
"(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--
Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
"Explanation 1.--A man's signature of his own name may amount to forgery.
"Explanation 2.--The making of a false document in the name of a fictitious person, intending it to be believed that the document Page 32 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. "Explanation 3.--For the purposes of this section, the expression "affixing electronic signature" shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000."
49. Hon'ble Supreme Court of India in Sheila Sebastian vs R. Jawaharaj, Crl. Appeal nos. 359-360/2010, decided on 11 May, 2018, has discussed the law relating to forgery. It has been held as under :-
"19. 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. 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.Page 33 of 42 ACMM/EAST/KKD/11.11.2020.
FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 "20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
"21. 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."
"22. 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 deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable Page 34 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf.
CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 under Sections 467 and 471, IPC even if title of property did not vest in the executant.
"23. 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 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 Page 35 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
"24. In Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.
"The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case.
"The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us Page 36 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 could not have been convicted with the making of a false document.
"25. 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. "26. 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 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.Page 37 of 42 ACMM/EAST/KKD/11.11.2020.
FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 "27. A reasonable doubt has already been thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The State of Maharashtra, (2018) 3 SCC 66 wherein 'reasonable doubt' has been enunciated by this Court as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis." In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e POA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability."
(Emphasis supplied)
50. Hon'ble Supreme Court of India in Md. Ibrahim and Ors. Vs State and Anr. Criminal Appeal no.1695/2009, decided on 04 September, 2009, had the occasion to discuss Page 38 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 the ingredients of the offence of forgery. The facts of the said case were also similar to the present case. It was alleged by the complainant that one of the accused had represented himself as owner of the property of the complainant and executed rgistered sale deed in favour of another accused. The issue before the Hon'ble Supreme Court was whether such document could be called forged document. His Lordship has held that it was not forgery under the law. It has been held as under:
"The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused. "10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
"10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
"10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, Page 39 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. "10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
"11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
"12. 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 Page 40 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 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 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 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." (emphasis supplied)
51. In the present case also, even though it is shown that the accused had falsely shown himself owner of the shop in question in the abovesaid documents. However, he did not claim that he was someone else nor did he claim that he was authorised by someone else. In these circumstances, the Page 41 of 42 ACMM/EAST/KKD/11.11.2020. FIR No. 223/2001 PS : Preet Vihar State Vs. Mohd. Yusuf. CNR No. DLET-02-000170-2003 : CR Case no.3354/2016 documents can not be called false documents as defined under Section 464, IPC. Once it is shown that the documents are not false documents, there is no forgery, and, if there is no forgery, then Sections 467, 468, or Section 471 of the IPC are not attracted. The accused, therefore, can not be held liable for any of those offences.
52. In the light of the foregoing analysis, I hold that the prosecution has failed to prove its case against the accused. The accused is hereby acquitted.
53. The accused has already furnished bond under Section 437A, Cr.P.C., with one surety along with photographs and copies of address proof.
Pronounced in open Court through Video Conferencing on this 11th day of November 2020.
DINESH Digitally signed by
DINESH KUMAR
KUMAR Date: 2020.11.11
16:38:50 +05'30' (Dinesh Kumar)
Additional Chief Metropolitan Magistrate (East) Karkardooma Courts Complex, Delhi.
Page 42 of 42 ACMM/EAST/KKD/11.11.2020.