Delhi District Court
Kavita Gupta vs State on 21 August, 2024
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Revision No.220/2024
FIR No.11/2009
Kavita Gupta Vs. State
PS Lajpat Nagar
U/s 420/468/471/120B IPC
In the matter of :-
Kavita Gupta
W/o Sh. Yogesh Gupta
R/o H.No.C-3555, Defence Colony,
New Delhi 110024
.... Revisionist
Versus
1. State
Through Govt. of NCT of Delhi
2. Shiraz Patodia
Dua Associates
15, Tolstoy Marg, New Delhi
......Respondents
Date of Institution : 04.05.2024
Date of Arguments : 13.08.2024
Date of Order : 21.08.2024
Decision : Revision allowed order of Ld.
Trial Court is set aside
Digitally signed
by SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY Date: 2024.08.21
16:04:34 +0530
CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 1 of 30
ORDER
1. Revisionist namely Kavita Gupta has filed present revision petition thereby challenging order dated 27.03.2024 passed by Ld. Trial Court in FIR No.11/2009 PS Lajpat Nagar U/s 420/465/468/471/120B IPC, vide which, Ld. Trial Court has framed charge only qua accused/revisionist Kavita Gupta.
2. The present revision petition arising out of FIR No.11/2009 dated 17.01.2009 registered at PS Lajpat Nagar U/s 420/468/471 IPC, which was caused to be lodged on the complaint of complainant Shiraz Patodia. After completion of investigation, chargesheet under Section U/s 420/465/468/471/120B IPC was filed on 17.07.2018 before the concerned Court. Thereafter, accused persons namely Yogesh Gupta, Kavita Gupta and MD Budhiraja were summoned by concerned Court. On 06.05.2023, proceedings were abated qua accused MD Budhiraja as he had expired on 01.10.2022. Vide impugned order dated 27.03.2024 accused Yogesh Gupta has been discharged from all the alleged offences.
3. Vide impugned order dated 27.03.2024, accused/revisionist has been charged for the offences punishable U/s 420/465/468/471 IPC r/w Section 511 IPC. Revisionist has been discharged for the offences punishable U/s 120 B IPC.
4. In my subsequent paragraphs, parties will be referred with the same nomenclature with which they were referred before Ld. Trial Court, in order to avoid confusion. Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date: 2024.08.21 16:04:51 +0530 CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 2 of 30
5. It is stated by the revisionist that the impugned order is liable to be set aside.
6. Ld. Counsel for revisionist has taken following grounds challenging the impugned order.
i. That the impugned order is bad in law as well as on facts. That the Ld. Trial Court did not consider that the ingredients of the offence of forgery have been interpreted by the Hon'ble Supreme Court of India in "Ram Narayan Popli v. CBI "(2003) 3 SCC 641 wherein it was observed as follows: "373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are (i) is the document false, (ii) is it made by the accused, and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty." That none of the aforesaid ingredients have been satisfied in the present case. The Handwriting Expert Report dated 31.08.2016 obtained by the investigating authorities clearly establishes that the Petitioner/Revisionist has not forged the signatures of Ms. Swapna Sundari. Further, there is no evidence to establish that the Revisionist that there was any intent to defraud.
ii. That the Ld. Trial Court did not consider that the CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 3 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:01 +0530 Revisionist is liable to be charged with offence punishable under section 465 IPC even when the prosecution has unequivocally stated in the final report that the Revisionist is not the maker/author of the alleged forged signature of Mrs. Swapana Sundari. It is a settled principle of law that charge of forgery cannot be imposed on/sustained against a person who is not the maker of a false document in question. The Hon'ble Supreme Court of India in "Sheila Sebastian v. R. Jawaharaj" (2018) 7 SCC 581 has observed as follows:
"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 CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 4 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:07 +0530 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 1 nor Respondent 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 the 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." Thus, since the Revisionist is not the author/maker of the allegedly forged signatures of Mrs. Swapna Sundari, she cannot be charged under Section 464, IPC.
iii. That the Ld. Trial court did not consider that the revisionist cannot be charged under section 420 r/w section 511 IPC as there was neither any inducement (as there was no contact between the accused and the alleged victim) nor any delivery of property. Section 468 IPC and 471 IPC is also not applicable in the present case as the offence of 'forgery for purpose of cheating' u/s 468 is intrinsically dependent on an CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 5 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:12 +0530 offence of cheating u/s 420.
iv. That the Ld. Trial Court did not consider that attempt [Section 420/468/471 read with Section 511] was made as soon as Application with forged documents was filed before MCD. It is submitted that submission of the Application would amount to attempt only if the Revisionist had knowledge that it contained forged signature/stamp and had an intent to defraud. There is no evidence to establish that she had knowledge that the Application contained forged signature/stamp. In fact, the Revisionist did not pursue her Application once she realized that it contained forged signature and the Application was rejected by MCD for non submission of documents. This makes it evident that she did not have the intent to defraud. v. That the Ld. Trial Court did not consider that it is a settled principle of law that an act would qualify as "attempt" under Section 511 only if it is done with the intention of committing an offence and the intention of the person making the attempt is frustrated by circumstances independent of his own volition. The Revisionist never had the intent to defraud Mrs. Swapn Sundari and she herself abandoned her Application pending before MCD after she realized that it contained forged signatures. Thus, it cannot be said that her CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 6 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:17 +0530 actions amounted to "attempt" to commit forgery or use a forged document.
The Hon'ble Supreme Court of India in Abhayanand Mishra v. State of Bihar (1962) 2 SCR 241 : AIR 1961 SC 1698: (1961) 2 Cri lj 822 : (1962) 1 SCJ 183 has observed as follows: "13. We may refer to some decided cases on the construction of Section 511 IPC In Queen v. Ramsarun Chowbey [(1872) 4 NWP 46.] it was said at p. 47" "To constitute then the offence of attempt under this Section (Section 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence. Two illustrations of the offence of attempt as defined in this Section are given in the Code; both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence, although it was not an act which constituted a part of the offence, and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition. From the illustrations it may be inferred that the legislature did not mean that the act done must be itself an ingredient (so to say) of the offence CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 7 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:22 +0530 attempted...."
vi. That the Ld. Trial Court did not consider that the Impugned Order erroneously presumes that the Revisionist had knowledge that documents accompanying her application had forged signature and stamps. The Ld. Trial has proceeded in ignorance of the admitted facts stated in the chargesheet that the stamp paper was purchased by MD Budhiraja and Janardan and notarized/attested by their office. While proceedings against MD Budhiraja have abated due to death, no proceedings were initiated against Janardan. The basic ingredient of Section 471 is 'knowledge' and intent to defraud which is absent as far as the Revisionist in concerned.
vii. That the Ld. Trial Court did not consider that the prosecution needs to be given sufficient opportunity during trial to collect evidences and observed as follows: "14. It is for the prosecution to establish during trial as to which accused was responsible for forging signatures of the said victim. It cannot be said that since no material has been produced to show which of the accused has actually forged the signatures, the same entitles accused persons to seek discharge, as sufficient opportunity has to be given to the prosecution to establish its case during trial with evidence." It is CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 8 of 30 Digitally signed by SHEETAL CHAUDHARY SHEETAL CHAUDHARY Date:
2024.08.21 16:05:28 +0530 submitted that the discharge application u/S. 239 is to be decided on the basis of records of the case available before the Ld. Trial Court at the time of consideration of discharge application. The application U/s 239 ought not be dismissed on the ground that ' sufficient opportunity has to be given to prosecution its case during trial with evidences. In State of Gujarat v Dilipsinh Kishorsinh Rao, 2023 INSC 89414, the Hon'ble Supreme Court has held that discharge application is to be decided on the basis of records of the case as defined u/s 227 of Cr. PC and observed as follows: "7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 9 of 30 Digitally signed by SHEETAL CHAUDHARY SHEETAL CHAUDHARY Date:
2024.08.21 16:05:32 +0530 frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed. 8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge- sheet material only. 9. If the accused is able to demonstrate from the charge-sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 10 of 30 Digitally signed by SHEETAL CHAUDHARY SHEETAL CHAUDHARY Date:
2024.08.21 16:05:38 +0530 assist the court to determine whether it is required to proceed to conduct the trial. Nothing is the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the IO. 10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged".
viii. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr. P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.
ix. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 11 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:43 +0530 need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima- facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial."
x. That the Ld. Trial Court did not consider that the Application for sanction of plans for proposed third floor submitted by the Revisionist has already been rejected by the Municipal Corporation of Delhi vide letter dated 27.08.2008. Further, the property has also been sold by the Revisionist to a third party. As such, neither any loss or harm has been caused to Mrs. Swapan Sundari or Ms. Shiraz Patodia nor any undue benefit has accrued to the Revisionist as a result to the alleged forgery. It is a settled principle of law that in order to attract under Sections 420, 465, 468, 471 of Indian Penal Code, the act must be done fraudulently CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 12 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:48 +0530 and dishonestly such that either wrongful loss or wrongful gain is caused. In Ram Narayan Popli v. CBI (2003) 3 SCC 641 it was observed as follows : "374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological.... In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however small."
Since, no wrongful gain or loss has been caused the offences alleged under Sections 420, 465, 468, 471 of Indian Penal Code are not made out.
xi. That the Ld. Trial Court did not consider that the issue of limitation raised by the Revisionist has not be dealt by the Ld. Trial Court. The relevant plea of limitation, in application for discharge preferred u/S 239 is reproduced hereunder: "3. (iv) ... The Ld. Magistrate cannot take cognizance of the alleged offence on account of expiry of limitation period prescribed under Section 468 of CrPC. The only allegation against the Applicant is of committing forgery and using the forged document. The allegation, if proved, at most would attract Section 465/471 of IPC, punishable with imprisonment for 2 years, or fine, or CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 13 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:54 +0530 both. Thus, the period of limitation specified in Section 468(2) (c) of CR.PC expired on 18.01.2012. Despite there being no factual basis for alleging cheating under Section 420 and 468 IPC, the said sections has been included in the charge sheet only to somehow overcome the bar of limitation."
xii. That the Ld. Trial Court did not consider that there isn't sufficient material on record for framing of charges against the Revisionist. It is settled law that at the stage of framing of charges the test of prima-facie case must be applied and that in those cases where the court is satisfied that there are no chances of conviction, and the trial would be a futile exercise the order of discharge should be passed.
xiii. That the Revisionist is seeking discharge on the ground that the test of prima facie case qua the Revisionist has not been satisfied. Considering the averments and allegations in the charge sheet and even the material/evidence collected/ recorded during the course of the investigation, and even assuming the averments in the charge sheet is to be true, the ingredients of the offence punishable under Sections 511 read with Section 420/468/471 and Section 465 are not at all made out. Since there is no prima facie evidences against the Revisionist, the Ld. Trial Court CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 14 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:05:59 +0530 ought to have discharged the Revisionist also.
7. In the present matter, complainant/respondent was summoned and despite service to the respondent vide process dated 18.07.2024, complainant did not appear. Affidavit of service on the respondent/complainant Shiraz Patodia was also filed on behalf of revisionist.
8. Ld. Counsel for accused/revisionist Kavita Gupta has argued on the lines of grounds taken in the revision petition.
9. To understand the law established at the time of framing of charge, the judgment passed in Criminal Appeal No.2504/2023 titled as "State of Gujarat Vs. Dilipsinh Kishorsinh Rao" dated 09.10.2023 passed by Hon'ble Supreme Court of India, Application No.2180/2018 case titled "State of UP & Anr. Vs. Rama Kant Dixit" dated 05.03.2022 and Criminal Appeal No.407/2021 titled "State of Rajasthan Vs. Ashok Kumar Kahyap" passed by Hon'ble Supreme Court of India wherein it has been held that "9.1 In the case of P. Vijayan (supra), this Court had an occasion to consider Section 227 of Cr.P.C. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against he accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which Ex facie disclose that there CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 15 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:04 +0530 are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 Cr.P.C., if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the unction of the Court after the trial starts".
10. I have heard Ld. Counsel for the revisionist and carefully considered the record.
11. In the present matter, impugned order was dated 27.03.2024 and this revision petition was filed on 04.05.2024. Therefore, this petition is filed within limitation period. Impugned order was not interlocutory order and therefore, this petition is maintainable legally.
12. The issue which needs adjudication is whether impugned order vide which Ld. Trial Court has charged accused/revisionist Kavita Gupta for the offences punishable U/s 420/465/468/471 IPC r/w Section 511 IPC, was legally correct or not? In order to decide said question, I must mention here the law pertaining to framing of charge. Same is mentioned below.
13. Courts are supposed to appreciate the evidence brought on record by the prosecution, at the time of framing of charge. Roving inquiry into the pros and cons of the case at the time of framing of charge by CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 16 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date: 2024.08.21 16:06:09 +0530 weighing evidence is not to be done. Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclosed existence of all ingredients constituting the offence. Reliance is placed upon State of M.P. Vs. Mohan Lal Soni, AIR SC 2583.
14. In Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimaraj Bijje, 1990 AIR 1962, Hon'ble Apex Court emphasized that during the stage of framing charges, the courts should consider that the allegations made against accused are prima facie believable. The framing of charges relies on the "subjective satisfaction" of the courts. This implies that courts must assess whether there is a reasonable basis to presume that the accused is involved in the offence.
15. In State of Tripura Vs. Bhupen Dutta Bhowmik, Crl. Appeal. No. 623/1992 decided on 26.04.2001, Hon'ble Apex Court underscored that at the stage of framing charges, the courts are obligated to examine the broad possibilities of the case. They must take into account preliminary evidence and ensure that the charges are justified based on the allegations made.
16. In Mauvin Godinho Vs. State of Goa, Crl. Appeal No. 315/2011, decided on 17.01.2018, Hon'ble Apex Court outlined the standard for framing of charges by emphasizing that a prima case against the accused is established when the evidence taken as a whole is sufficient to induce the court to believe in the existence of essential elements of the charge or to consider their existence highly probable. However, the courts should refrain from conducting a detailed examination of CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 17 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:13 +0530 evidence at this stage, as if it were a trial.
17. Keeping in mind above mentioned law, I am reverting back to the contents of charge-sheet/ supplementary charge-sheet and documents annexed with the same, for the purpose of concluding as to whether Ld. Trial Court passed impugned order legally or not ?
18. I have carefully gone through the material available on the record, the impugned order passed by the Ld. Trial Court wherein the Ld. Trial Court has opined that offence punishable U/s 420/465/468/471 IPC r/w Section 511 IPC is made out against accused/revisionist Kavita Gupta.
19. Briefly, the facts of the present matter are as stated by the complainant in his complaint dated 05.12.2008 is as under:-
"1. Pursuant to the Order dated 28th August, 2008 of the Junior Engineer (Building) MCD, rejecting my request for copies of documents in relation to the property No.C-
250, Defence Colony, New Delhi 110024 (hereinafter referred to as "the said Plot/Building). I preferred an Appeal dated 8th September, 2008 before the Deputy Commissioner, Central Zone, MCD Lajpat Nagar, New Delhi 110024. the said Appeal was allowed by the Learned Deputy Commissioner after which a copy of the documents in relation to the said Plot/Building, as sought by me, were made available to me.
2. After perusing the said documents it has been established that Ms. Kavita Gupta, owner of the second floor flat of the Plot / Building has committed serious CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 18 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date: 2024.08.21 16:06:18 +0530 offences of forgery under the Indian Penal Code by dishonestly and fraudulently making an filing with the MCD's office forged documents, including Affidavits, Undertakings, Indemnity Bonds etc., with the clear intent to cheat, to commit fraud and to cause loss, damage and injury to me, i.e., the owner of the first floor flat of the said Building, as well as Ms. Swapnasundri, owner of the basement and the ground floor of the said Building.
3. I was shocked to note that Ms. Kavita Gupta, with the clear intention to perpetrate fraud upon me and Ms. Swapnasundari and in utter disregard of our respective rights in the said Plot/Building, clandestinely and without our knowledge or approval purchased several Stamp Papers in the name of Ms. Swapnasundari. The said Stamp Papers were then used by Ms. Kavita Gupta for making false affidavits, undertakings and indemnity bonds in the name of Ms. Swapnasundari, myself and Ms. Kavita Gupta. Neither I nor Ms. Swapnasundari were aware of the said stamp papers or the said false affidavits, undertakings or indemnity bonds till the time copies of the same were made available to me by the MCD pursuant to my specific application in this behalf under the Right to Information Act. I state that by way of the said false affidavits, undertakings and Indemnity bonds, Ms. Kavita Gupta, fraudulently represented to the MCD CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 19 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:22 +0530 that both Ms. Swapnasundari and I along with Ms. Kavita Gupta allegedly wanted to raise further construction on the said plot / Building by construction of a third floor thereon and to this end we / Building by construction of a third floor thereon and to this end we (co-owners of the said Plot/Building) were furnishing the necessary affidavits, undertakings and indemnity bonds. A copy of the said false affidavits, undertakings and indemnity bonds fraudulently drawn up by Ms. Kavita Gupta are annexed herewith and marked as Annexure 'B' (Colly).
4. As you are aware, by way of the said letter dated 15th September, 2008 I categorically informed you that I had never agreed to any construction being raised on the said Plot / Building and in fact, upon being informed of the nefarious and illegal plans of Ms. Kavita Gupta in this regard, I had registered my protest regarding any construction at the said Plot / Building with the office of the MCD.
5. I state that even Ms. Swapnasundari had never agreed for any additional construction work being carried out on the said Plot / Building nor had she authorized anyone, including Ms. Kavita Gupta to purchase any stamp papers in the name of Ms. Swapnasundari or make any representations to the MCD on her behalf. This is clear CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 20 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:26 +0530 from the communication dated 22nd August, 2008 addressed by Ms. Swapnasundari to the MCD wherein Ms. Swapnasundari clarified to the MCD as follows:
"... I have not made any application to the MCD for undertaking any construction at the said Plot No.C-250, Defence Colony, New Delhi. Any application or notice for construction which may have been received by the MCD is both without my knowledge and without my consent. Any documents received by the MCD bearing my signatures in support of the said application / notice are false and fabricated as I have not signed any of the said documents.
Kindly send to me a copy of the application/notice and in particular, a copy of the documents where my signatures have been forged so that further action as deemed fit can be initiated by me.
In light of the aforestated, the said application/notice received by you for additional construction be rejected forthwith."
A copy of the aforesaid letter dated 22 nd August, 2008 written by Ms. Swapnasundari to the MCD is annexed herewith as Annexure 'C'.
In view of what is stated herein above, please appreciate that Ms. Kavita Gupta, by creating forged documents has committed serious offences under the Indian Penal Code CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 21 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:31 +0530 and in particular under Sections 463, 464 and 468 of the Indian Penal Code. She has committed the grave offences of forgery for the purposes of cheating me, Ms. Swapnasundari as well as the MCD and I reserve my rights to take appropriate legal action against her, both civil and criminal.
7. One has often heard about the notorious practices of the builders in Delhi and the excesses committed by them on innocent people. However, the fact that in the instant case, a senior lawyer as myself, practicing at the Supreme Court of India and a very respected artist and wife of a senior, respected civil servant with the Government of India, Ms. Swapnasundari, are being subjected to the fraudulent activities of a builder makes the problem more grave and troubling.
8. I hope that you will take appropriate action in this regard. I have also written to the MCD to keep safely and carefully all the originals of the false affidavits, undertakings and indemnity bonds filed by Ms. Kavita Gupta in order that the same can be used in the legal proceedings as and when required.
Please take the above on record and take necessary actions".
Digitally signed by SHEETALSHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:36 +0530 CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 22 of 30
20. On the aforesaid complaint dated 05.12.2008, FIR in the present matter was registered on 17.01.2009 and chargesheet in the present matter was filed on 17.07.2018.
21. To constitute the offences for which the accused/revisionist is charged, I shall herein mentioned the same.
As per Section 420 IPC - Cheating and dishonestly inducing delivery of property - "Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
As per Section 465 IPC - Punishment for forgery - " Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. As per Section 468 IPC - Forgery for purpose of cheating - "Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine". As per section 471 IPC - Using as genuine a forged [document or electronic record - "Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 23 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:39 +0530 be punished in the same manner as if he had forged such [document or electronic record]".
As per Section 511 IPC - Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment -
"Whoever attempts to commit an offence punishable by this code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both".
22. To constitute an offence under Section 420 IPC, it was required for the prosecution to have prima facie established at the time of framing of charge that the accused had committed an act with the intention to deceive and the accused must have induced a person to deliver any property, or to make alter or destroyed the whole or part of the valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property and the accused did so, dis- honestly. Therefore, to constitute an offence of cheating, it had to be established that the accused not only has cheated someone but also that by doing so, the accused has dishonestly induced the persons who was cheated to deliver any property. Further, for the offence U/s 420 IPC CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 24 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:45 +0530 there must be some inducement by the accused to the complainant at the initial stage and if there is no inducement at the initial stage, subsequent, intention to commit the offence is to be discarded. Not only cheating simpliciter but also dishonest inducement to person sought to be deceived to deliver any property etc., are required to be proved. From this stand point, the word "property" assumes importance. The expression property is wide a term that it admits of no easy definition. Any object that is of value to one person cannot seized to be property because it passes into the hands of a person who has no use for it. Nor can it be said that an object become property only when it comes into the hands of some person who has a actual use for it.
23. In every case, when a property is delivered by a person cheated, there must always be a stage when the person makes up his mind to give the property on accepting the false representation made to him. It cannot be said that the person have cheated if there was no fraud or deception which could amount to cheating. Therefore, the consequence of deception is that the deceived person, inter alia, delivered a property to the accused. Therefore, it conveys and implies the change of hands of the property or its transfer from one person to the other, directly or indirectly.
24. In the present matter, the allegations of the complainant are that he being the owner of the first floor flat of property bearing no.C-250, Defence Colony, New Delhi, came to know that owner of second floor of the said building i.e. namely accused/revisionist Kavita Gupta was planning to construct a flat/premises on the terrace of the said building CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 25 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:06:52 +0530 having disregard to the ownership rights of the complainant and the occupier and owner of ground floor, which was owned by one Ms. Swapanasundari. It is also alleged by the complainant that in July, 2008, he learnt regarding the aforesaid intention of accused Kavita Gupta upon which she enquired about the matter from the concerned MCD Office. During, the aforesaid time, he came to know that an application has been filed on behalf of accused Kavita Gupta for seeking permission from the MCD for construction on the second floor after filing affidavit/consent letter on behalf of the complainant and the owner of the ground floor. The complainant has alleged that since, he had never consented or given any affidavit for construction on the second floor, the same were forged and fabricated by accused as accused / revisionist was the ultimate beneficiary of the same, in connivance with her husband/co-accused Yogesh Gupta (since discharged by the Trial Court vide impugned order dated 27.03.2024 and co-accused MD Budhiraja (proceedings already abated vide order dated 06.05.2023) being the Architect of the building alongwith other associates. It is also alleged that the complainant upon filing of RTI application, she was informed that the application for sanction of 3 rd Floor in respect to property no.C-250, Defence Colony, has been rejected vide rejection letter dated 27.08.2008. Further, that the MCD had refused to allow any construction on the 3rd Floor. In view of the aforesaid allegations investigation ensued and after interrogation of the accused persons, IO came to know that co-accused MD Budhiraja being the Architect, through his office had filed the application before the CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 26 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date: 2024.08.21 16:06:56 +0530 MCD for construction of 3rd Floor of the aforesaid property at the behest of accused Kavita Gupta and co-accused Yogesh Gupta (since discharged). Further during investigation, IO came to know that accused Kavita Gupta had moved an application for grant of permission to raise construction at 3rd Floor of the property without the approval of other two co-owners having common rights for the purpose the file was prepared by accused MD Budhiraja and the stamp papers were purchased in the name of Swapanasundari, although she was not the beneficiary of getting the permission and not the main applicant. Further, the address of the complainant was wrongly mentioned on the application to the MCD so that the notice of MCD could not reach her. Further, the affidavits prepared were in the name of all the three owners but the same were found signed in the name of two owners namely Kavita Gupta and Swapanasundari only. It is also stated by the IO in the chargesheet that accused Yogesh Gupta got the file prepared for obtaining the approval for plan to construct the building for personal name and for the purpose forged signatures of Smt. Swapanasundari and being the beneficiary with co-accused Kavita Gupta had committed the criminal act of forging the documents. During the investigation accused MD Budhiraja had stated that the documents were prepared on the directions of one Mr. Janardhan who was the employee of MD Budhiraja and were handed over to one tout namely Kapoor who may have forged the signatures of Swapanasundari and the aforesaid tout was never found or interrogated.
CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 27 of 30 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2024.08.21 16:07:00 +0530
25. In view of the aforesaid facts and circumstances for the accused to be charged for the offences punishable U/s 420/468/471 IPC r/w U/s 511 IPC and Section 465 IPC it was required for the prosecution to show that the alleged documents were forged for the purpose of cheating by accused/revisionist Kavita Gupta. However, in the present matter as per FSL report which has been filed by the IO as supplementary chargesheet, it has been opined that "it could not be possible to express any opinion regarding their common authorship or otherwise on the basis of material at hand" . As per record, IO had provided around 202 documents for examination to the FSL containing questions as well as admitted signatures and it has been opined that the authorship of the same could not be ascertained. In view of the aforesaid report, and upon seeing the contents of the complaint, the alleged forgery of the documents cannot be fixed upon the revisionist/accused Kavita Gupta. More so, in the present matter it is the allegation of the complainant herself that she believed that the documents purportedly furnished before the MCD were prepared by accused Kavita Gupta with the intention to cheat the complainant. However, in the present matter, the alleged cheating, by using the alleged forged documents never culminated since the aforesaid application before the MCD moved by accused Kavita Gupta was rejected by the MCD itself and same was never pursued by accused Kavita Gupta and therefore, the same cannot be treated to be moved with the intention to dishonestly cause wrongful loss to the complainant. Further, it is the case of the complainant herself that upon rejection of the application by the MCD, the same was not CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 28 of 30 Digitally signed by SHEETAL CHAUDHARY SHEETAL CHAUDHARY Date:
2024.08.21 16:07:04 +0530 pursued by accused Kavita Gupta. It further cannot be lost sight that it is only the assumption of the complainant that the accused Kavita Gupta by forging documents had attempted to cheat the complainant and had done so with the dishonest intention. It is stated in the chargesheet that upon rejection of the application by the MCD which was never pursued by the accused Kavita Gupta, there was no construction on the third floor of the said property which could have caused wrongful loss to the complainant. It is also the case of the prosecution that the alleged employee Janardhan of co-accused MD Budhiraja (since deceased) was never interrogated and the tout namely Kapoor could not be apprehended who may have committed the offence of forgery and had filed the application with the MCD which was eventually rejected by MCD. The application before MCD was dismissed, and therefore, there was no wrongful gain to accused Kavita Gupta which is alleged by the prosecution. Further, in the alleged documents the signature of the complainant were never forged and infact it is only the signature of one of the owner namely Ms. Swapanasundari were allegedly forged, and therefore, no offence of forgery of documents of complainant Ms. Shiraz Patodia was committed against her. Cheating by false representation in respect of a future event must be proved by showing that the representation was false to the knowledge of the accused at the time it was made.
26. The ingredients of the offences alleged against accused Kavita Gupta are not therefore prima facie made out against her. Ld. Trial therefore passed incorrect order by not considering the material available on CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 29 of 30 Digitally signed by SHEETAL CHAUDHARY SHEETAL CHAUDHARY Date:
2024.08.21 16:07:08 +0530 record against the accused Kavita Gupta and the FSL report filed in the present matter. This revision petition, therefore stands allowed and impugned order dated 27.03.2024 is set aside and accused/revisionist Kavita Gupta stands discharged for all the offences against her.
27. TCR be sent back alongwith copy of this order to Ld. Trial Court.
Order dasti. Digitally signed
by SHEETAL
CHAUDHARY
SHEETAL
CHAUDHARY Date:
2024.08.21
16:07:15
Announced in open Court +0530
On dated 21.08.2024
[Sheetal Chaudhary Pradhan]
ASJ-02/South East District
Saket Courts/New Delhi
CR No.220/2024 Kavita Gupta Vs. State & Anr. FIR No.11/2009 PS Lajpat Nagar Page No. 30 of 30